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Second Chance for Second Chance – Update for April 14, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BUREAU OF PRISONS REVERSES COURSE ON HALFWAY HOUSE

Last Thursday, the Bureau of Prisons hastily walked back its March 31st memo limiting Second Chance Act halfway house placement—which under 18 USC 3624 can be up to 12 months—to only 60 days (with RDAP placement limited to 125 days).

badidea161003The BOP tersely announced in a press release that “[b]ased on concerns about how these limitations impact the population, BOP will not proceed with the planned changes to limit SCA placement to 60 days. A new memo was issued today, April 10, 2025, rescinding the previous guidance.”

The memo is not yet publicly available.

In its March 31st memorandum, the BOP cited budget constraints for the limitation and stated that prisoners “releasing to the community under Second Chance Act (SCA) authority after April 21, 2025, will have their dates adjusted and reduced to a maximum of 60 days.”

Writing in Forbes, Walter Pavlo said that the reversal resulted from an “uproar” from inmates, their families, advocates, and civil rights attorneys. The reversal coincides with a BOP warning of a renewed scam where people impersonating BOP employees were shaking down families for money to secure quicker halfway house placement for loved ones.

pooremptypockets231017Pavlo says that “the BOP is going to be honoring the earlier dates given to prisoners to start their halfway house placement.” This may be, but the financial pressures on the agency that resulted in the March 31st restriction remain unchanged. Without the text of the new memo available, whether the good old days are back remains unclear.

BOP, Second Chance Act (SCA) Placements – Previous Guidance Rescinded (April 10, 2025)

Forbes, Bureau of Prisons Rescinds Controversial Limits On Halfway House (April 10, 2025)

– Thomas L. Root

Second Chance Act Restrictions Constrict Halfway House Placement – Update for April 7, 2025

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IT’S ALL ABOUT THE BENJAMINS

benjamins210222Bureau of Prison inmates were rocked last week by a systemwide announcement that prisoners with a Second Chance Act (SCA) halfway house placement on or after April 21st would see their placements reduced (but how much is unknown), and any future designation will be limited to a maximum of 60 days. Inmates completing the Residential Drug Abuse Program (RDAP) – who formerly got 180 days in most cases – will now be limited to 125 halfway house days.

A little background: The Holy Grail for the 94% of federal prisoners who will someday be released is getting to halfway house, a residential facility located in a community setting in which former inmates and recovering substance abusers transition to outside living with regular jobs, banking, family relationships, and the like.

If my unscientific survey of the hundreds of my newsletter readers who have cycled through halfway houses is any indication, halfway house living is fairly miserable. It features an unpleasant mix of all levels of violent and nonviolent state and federal inmates, a staff that is poorly trained compared to Bureau of Prisons personnel, extra layers of bureaucracy, and petty rules enforced with the constant fear of being sent back to a secure institution. Still, for virtually all prisoners, halfway house represents the promise of relative freedom to walk the streets (subject to curfews and severe limitations on where they are going and where they may not tarry), see loved ones, and work in a job where they feel like employees instead of inmates.

One of the first questions a new federal inmate asks is when he or she will be eligible for halfway house placement. Eligible prisoners can earn First Step Act credits for successful programming, with the first 365 credits shortening their sentences by up to a year. Any credits over 365 entitles a prisoner to more halfway house or home confinement time.

Even if prisoners are ineligible for earning FSA credits, the Second Chance Act of 2007—codified in 18 USC 3624(c)—permits (but does not require) the BOP to place any inmate in a halfway house for up to 12 months.

halfwayhouse250407The BOP has always been focused on placing the inmates at the highest risk of recidivism and with the greatest need for services in halfway house. Contrary to inmates’ prevailing belief, halfway house was never intended to be a reward for good conduct or an accolade for good character, but rather a prerelease tool to increase the chances that the corrections system would never see the prisoner again.

The BOP has traditionally employed a five-factor metric to place inmates in halfway house and to determine the duration of their stay. The five-factor review focuses on the resources of the facility, the prisoner’s offense, and the history and characteristics of the offender.

Last fall, the BOP began providing inmates with tally sheets showing them the date they would be eligible for halfway house assuming they earn the maximum number of FSA credits possible for them to get. The sheet also included the convenient but questionable administrative practice of adding the maximum 12 months they could also be granted for halfway house under Second Chance. The listing had an asterisk note warning prisoners that they were not automatically given 12 months, but rather explaining that the number of months of halfway house they would be allocated under SCA would be determined later and only after the individualized five-factor review.

fineprint180308Hardly anyone reads the fine print, and that applies with extra vigor to prisoners searching for as much hope as they could find. In many minds, 12 months of SCA halfway house on top of all of the FSA halfway house they could earn became an entitlement, not just a possibility.

In crafting the First Step Act, Congress made the policy error of treating halfway house as a reward for successful programming. The more programs completed, coupled with good conduct and a low risk of recidivism, would result in a prisoner earning more halfway house. This turned the BOP’s approach to halfway house on its head: instead of halfway house resources being used for people who needed it most, First Step allocated the resources to people who needed it least.

Money, That’s What I Want:  Amidst all of this prerelease fantasy, no one has appreciated the sobering truth behind the COIF numbers. “COIF” – the Cost of Incarceration Fee – is a calculation the BOP publishes annually of how much it costs to keep a federal inmate locked up. In Fiscal Year 2023 – the last year for which COIF data are available –the average COIF for an inmate housed in a BOP prison facility was $120.80 per day. The average FY 2023 COIF for a Federal inmate housed in halfway house was $113.53 per day.

It seems like a no-brainer. It clearly costs less to place a prisoner in a halfway house than to keep him in prison, right?

Maybe but maybe not. The COIF consists of “the obligation encountered in Bureau of Prisons facilities (excluding activation costs)” incurred in keeping an inmate, according to 28 CFR 0.96c. “Obligations” are how much is booked, not how much is actually spent. Right now, for example, the BOP calculates that its facilities repair costs are $3 billion, costs that have not been paid (and may never be paid).

Shaneva D. McReynolds, president of FAMM, said last week, “Prisons come with a menu of fixed costs that do not apply to halfway houses and certainly do not apply to home confinement.” Her point was that the BOP should maximize the number of months and number of inmates in halfway house, but her point disproves her position.

Fixed costs, by definition, do not increase according to inmate count. In other words, if $100.00 of the prison COIF represents fixed costs and $21.00 represents marginal costs, then sending a prisoner to halfway house only saves the BOP $21.00 while costing it about $114.00 in contract fees to the halfway house. Net loss to the BOP: about $93.00 a day per prisoner placed in halfway house. The prison is still there, the light bill still has to be paid, staff still has to be paid, the roof still needs to be fixed.

moneythatswhat231128No one doubts that the BOP is bleeding cash. The agency currently has nearly 6,000 fewer employees than needed, a shortfall costing over $437 million in overtime charges, BOP associate deputy director Kathleen Toomey told Congress in February 2025. A third of the FY 2023 overtime went for almost 76,000 outside medical trips and 84,000 hospitalizations.

Prison consultants Dr. Susan Giddings and Bruce Cameron wrote last week that halfway house placement “is actually more expensive than the cost of incarceration in a minimum-security prison and, in many cases, a low-security prison as well.” They said,

It’s too late for this fiscal year. The damage is done, and all the Bureau can do is stop the hemorrhaging. But if President Trump and Congress act now, fiscal year 2026 could be turned around. Home Confinement placement is significantly less costly than halfway house or incarceration, but in order to take advantage of the savings and better use the residential halfway house resources more efficiently, the status quo is not the answer. It’s time to flip the table and get something done.

Phillip Nunes, executive director of the Eastern Ohio Correction Center and president of the International Community Justice Association, told prison consultant Walter Pavlo that halfway houses currently have capacity and could expand without needing new contracts with the BOP.

Former BOP Acting Director Hugh Hurwitz said the same in the Atlanta Journal-Constitution last December. Hurwitz told prison consultant Walter Pavlo last week that the proposed 60-day limit is insufficient for inmates – particularly those who have served long sentences – to make the adjustment to the street.

No room at the inn?

While Giddings asserts that halfway house costs more than imprisonment – which, because the prison costs include fixed and marginal costs alike while halfway house is all marginal dollars – Pavlo disputes the claim: “It is difficult to see how the BOP’s decision to limit halfway houses is going to end up saving any money. In fact, both the First Step Act and the Second Chance Act, both heavily reliant on halfway house placement, were passed by Congress overwhelmingly on the assumption that they would save money on the costs of incarceration.”

The Sobering Reality:  Giddings and Cameron said that while the BOP announcement cutting halfway house placement was “devastating” for many prisoners and their families,” it is unsurprising:

The Bureau has had to prioritize lengthy First Step Act (FSA) prerelease placements over SCA placements for months. These lengthy FSA placements, anywhere from 12 to 26 months in length, tie up halfway house and home confinement resources for well beyond the average four- to five-month placement. The issue was further exacerbated by the previous Administration’s refusal to support the Bureau in court challenges regarding whether the Bureau had any discretion in these designation decisions to include cases where the individual presented public safety risks. The Bureau was told the only consideration was the time credits: nothing else mattered.

The BOP has argued in court that it is not required to honor FSA credits for halfway house, but it has lost that fight. So how do you pay a big new bill required by law from a budget that is already under intense pressure? Answer – you stop spending on any part of the budget over which you have control.

One inmate told me that at her facility, “Girls were devastated. Screaming, crying, shutting down, signing out of RDAP.” Another prisoner demanded to know whether it was true that “Trump passed a new law to where federal inmates can only get 60 days of halfway house now a that you can’t get up to 6 months anymore?”

Of course, Trump had nothing directly to do with this. As far as implementing the SCA, nothing in that law required the BOP to give prisoners any halfway house time. Whether there is a solid legal challenge to last week’s decision has yet to be seen.

Race to the Courthouse:  If my email can be believed—and I got a lot of email on the subject—inmates are now filing a blizzard of suits challenging the BOP action. The cottage industry of people who provide litigation support services to federal prisoners is leading the charge.

Badlaw200804One newsletter reportedly told inmate readers that the matter could be challenged using the same theory that won in Rodriguez v. Smith, a 2008 9th Circuit decision. A more careful review of Rodriguez would have shown even a casual reader that several decisions since then—such as Hindman v. Inch—have held that the Rodriguez holding was superseded by the SCA and has been reduced to a historical curiosity.

Another prisoner complained to me that the BOP “wants to keep us in prison longer, which means spending more money to keep us locked up. Then they don’t want to implement the Second Chance Act, which is law. We can’t break the law, but they clearly can by not implementing the Second Chance Act.”

Blame First Step for encouraging the belief that halfway house is an entitlement and blame the BOP’s administrative laziness for convincing prisoners and their families that a full year in halfway house was a given.

As for the BOP’s intentions, it’s not about keeping people in prison longer. It’s all about the Benjamins, baby.

Giddings and Cameron, The Bureau Takes Additional Drastic Actions to Contain Costs as They Struggle with Budget Issues (April 1, 2025)

Cost of Incarceration Fee, 89 FR 97072 (December 6, 2024)

Forbes, Bureau of Prisons Is A “Powder Keg” With Problems (April 4, 2025)

Forbes, Under Budget Pressure, Bureau Of Prisons To Cut Halfway House Time (April 1, 2025)

Atlanta Journal-Constitution, The Bureau of Prisons has plenty of open beds for reentry (December 6, 2024)

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008)

Hindman v. Inch, Case No 2:17-cv-00323, 2018 U.S. Dist. LEXIS 46834 (S.D.Ind., March 22, 2018)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 2024

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STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root

NBC Reports What Prisoners Already Know About FSA Credit Failure – Update for June 4, 2024

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NBC REPORTS THAT HALFWAY HOUSE CAPACITY INTERFERES WITH FSA CREDITS
Not this kind of halfway house...
Not this kind of halfway house…

NBC News reported Saturday what will come as little surprise to many prisoners who are counting on FSA credits for the additional halfway house/home confinement promised by 18 USC 3624(g)(2): the First Step promise of reward for completing programming is illusory for many people granted more halfway house/home confinement time by the Bureau of Prisons but turned away from halfway houses for lack of space.

Sreedhar Potarazu, who successfully sued the BOP in 2022 over its repeated miscues in calculating FSA credits, alerted NBC to nine cases in which inmates were incarcerated between two and eight months past their “last date inside,” a term that he says denotes when an inmate can be transferred to prerelease custody because of FSA credits they had earned beyond the 365 days that the BOP is allowed to subtract from their sentence.

“Even one life kept in longer is an injustice,” Potarazu told NBC. “The taxpayer should care because they’re footing the bill. You may not have anyone in there, but you’re still paying for it.”

The BOP lists contracts with 145 halfway houses nationwide on its website, and an agency spokesperson told NBC that those halfway houses have more than 10,000 beds. The BOP said more than 8,200 prisoners are designated to halfway houses, but it is not clear how many are in home confinement but supervised by halfway houses.

The BOP is not much help in tracking the problem. The agency admitted to NBC that it keeps no records on how many inmates are losing the benefit of FSA credits already earned because halfway houses are refusing placement.

“Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP told NBC News, but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”

bureaucracybopspeed230501The BOP insists that “credits are being calculated as required under the First Step Act.” But NBC said, “As the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information.”

Rep David Trone (D-MD), a member of the House Appropriations Committee, complained, “I always refer to the First Step Act as criminal justice lite,” Trone said. “We need to get real savings and give people real second chances. We haven’t executed the First Step Act properly.”

Writing in Forbes last week, Walter Pavlo argued that the BOP could bypass halfway house for a lot of prisoners and instead place them directly in home confinement. “Many inmates report that due to limitations in halfway house capacity that they are not able to utilize those credits for home confinement and they stay in prison… Overall, this issue of housing inmates in prison longer than necessary, and for which the BOP currently has the power to transfer to the community, affects tens of thousands of prisoners, many are minimum or low-security inmates. The BOP has the ability, but it is up to BOP Director Colette Peters to implement change that is within her power… something she has often spoken about.”

Ames Grawert, a senior counsel for the Brennan Center for Justice, acknowledges the capacity problem but argues that it’s up to Congress to ensure the BOP has the funding to implement the First Step Act and the infrastructure is in place. “Implementation is always a challenge in any law, especially when you’re dealing with a system that’s as complex and with so many issues as the Bureau of Prisons.”

Potarazu, an ophthalmic surgeon, spent at least four additional months in prison after his FSA eligibility date due to an admitted BOP error in calculating the credits. He filed a 28 USC § 2241 petition for habeas corpus in 2022 seeking proper calculation of his credits and designation to halfway house by July 31, 2022, the proper date for the transfer.

runoutclock221227Potarazu’s case was finally ruled on last week, dismissed as “moot” because he was no longer in BOP custody. The Court ruled, “Petitioner’s requested relief—immediate placement in pre-release custody and/or supervised release—has already been achieved” because he was transferred to a halfway house on May 18, 2023” (10 months late) and released from custody on December 22, 2023, “Thus, Petitioner does not maintain any redressable claims and does not satisfy the collateral consequences exception.”

Potarazu told NBC he ultimately wants to see others released when the BOP is legally obligated to do so, and that prisoners shouldn’t have to assume they’re going to remain behind bars longer than they should and go to the lengths of litigation that can take years.

“Even when you have the foresight to do so, you’re still trapped,” he said.

NBC News, Despite First Step Act, some federal inmates remain in prison extra months (June 1, 2024)

Potarazu v Warden, Case No MJM-22-1334, 2024 USDist LEXIS 94086 (D.Md, May 28, 2024)

Forbes, Bureau Of Prisons Stumbles On Reducing Costs On Incarceration (May 30, 2024)

– Thomas L. Root

‘You Can Earn Them, Just Not Spend Them,’ Said No One To The Senators – Update for January 22, 2024

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JUDICIARY COMMITTEE FIRST STEP ACT HEARING IGNORES HALFWAY HOUSE ELEPHANT

Senate Judiciary Committee leader Richard Durbin (D-IL) presided over a hearing last Wednesday commemorating the 5th anniversary of the First Step Act. The testimony was positive, upbeat, and largely useless.

Cake201130“Five years ago, we wrote the blueprint for reimagining rehabilitation and protecting public safety, and now we know by the numbers that it works,” Durbin said to open the proceeding. “Today, I am looking forward to reflecting on what we can achieve… In order to make our system fairer, we must continue to learn from and [build upon] the proven successes of ‘smart on crime’ policies like the First Step Act. We must provide more opportunities for those who are incarcerated to reenter society successfully, reunite with their families, and contribute to their communities.”

Ja’Ron Smith, former Deputy Assistant for Domestic Policy under Trump, noted that the recidivism rate for First Step releasees is about 37% lower than what it was before the Act passed, used to be. Smith said, “For those released under the First Step Act, the rate is just 125. And technical violations – not new crimes – account for a third of that number.”

J. Charles Smith III, president of the National District Attorneys Assn, said First Step “did a great job of differentiating between good people making bad decisions and bad people making bad decisions. The bad people who make bad decisions stay in jail… The good people who made a bad decision, were convicted for it, [and] went to jail for it, are getting rehabilitated and released earlier as well, as they should.”

Steve Markle, an officer with the National Council Of Prison Locals, lauded the Act but said the Federal Bureau of Prisons 20% staffing shortfall (40% among correctional officers) “not only compromises safety by reducing the number of staff available to respond to emergencies but also hinders the provision of programming for the First Step Act. To fully realize the Act’s potential,” he said, “it is crucial to address the critical staffing crisis within the Bureau. The Council believes that the staffing crisis can only be resolved by addressing the pay band issue.”

Not this kind of halfway house...
Not this kind of halfway house…

It fell to Walter Pavlo, who was not a witness at Durbin’s lovefest, to explain a major glitch in First Step Act’s implementation of the evidence-based programming problem. Inmates are motivated to earn credits because those credits can buy up to a year off their sentences and – if any credits are left after the one-year credit -more halfway house or home confinement. But, writing in Forbes last week, Pavlo observed that inmates are being denied the right to spend those credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.”

Prisoners with many months of First Step halfway house/home confinement credit are being told by halfway houses that they cannot be accommodated. I know of one prisoner awarded his nine months of halfway house/home confinement credit only to be told that the halfway house could only give him a third of that. The Act states in 18 USC 3624(g)(11) that the BOP Director “shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” Pavlo writes, “This is a problem that is going to persist unless something is done.”

The BOP’s Residential Reentry Management Branch administrator said in a speech two weeks ago that halfway houses had a “90-day projection of 99% utilization,” meaning, Pavlo said, “that there was no room to place any more prisoners.”

The BOP knew five years ago that it would have to increase halfway house capacity, but doing so is a bureaucratic nightmare. Because the BOP has relied on halfway house staff to monitor home confinement inmates, the capacity crunch has affected home confinement placement as well. A decade ago, the BOP worked with the US Probation Office to get some prisoners monitored on Probation’s Federal Location Monitoring (FLM) to allow some home confinement prisoners to be monitored by Probation rather than halfway houses. But as of now, only 3.6% of home confinement prisoners are on FLM.

The BOP has an Interagency Agreement with Probation which Pavlo says presents “an opportunity to expand FLM in a manner that is both cost-effective and consistent with the evidence-based practices. However, each district court is responsible for participating, or not, in FLM. Getting every district court to coordinate with the BOP has been an issue for years, as the few prisoners in FLM clearly demonstrate.”

release161117FLM costs far less than a halfway house per diem or halfway house-monitored home confinement. However, FLM is managed by each of the 94-odd federal judicial districts. Some participate with the BOP: others do not. Pavlo said a retired BOP executive told him, “I think the BOP would be receptive to expanding the program and it would resolve many of the issues related to capacity for prerelease custody, but the Courts are going to have to help.”

Senate Judiciary Committee, Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety (January 17, 2024)

Press Release, Durbin Delivers Opening Statement During Senate Judiciary Committee Hearing on the Fifth Anniversary of the Landmark First Step Act (January 17, 2024)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

– Thomas L. Root

Five Years Later, BOP Still Doesn’t Have First Step Act Right – Update For October 27, 2023

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FIVE YEARS SHOULD BE LONG ENOUGH TO GET FIRST STEP ACT RIGHT

firststepB180814The First Step Act, including its innovative system for granting credits to inmates who complete programs designed to reduce recidivism, is 5 years old in less than two months. But it took three years of fits and starts before the Bureau of Prisons pretty much had a final set of rules for administering FSA credits (after a proposal that was as miserly as the final rule was generous hanging around for a year of comments).

Now, almost two years later, the BOP is still muddled in trying to launch a computer program of forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody for halfway house or home confinement (HH/HC). The agency still lacks a comprehensive list of what types of inmate employment or education constitutes “productive activities,” which are supposed to continue a prisoner’s earning of FSA credits. And the BOP continues to deny HH/HC placement because it lacks resources, despite First Step’s requirement that inmates be placed to the full extent of their FSA credits.

Writing in Forbes last week, Walter Pavlo observed that “prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.

“Now,” Pavlo said, “nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term… One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting matches what is expected. This moving date is important because it can also determine when prisoners can leave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form of confinement that is far less expensive.”

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

First Step is important to Congress. When BOP Director Colette Peters appeared for a Senate Judiciary Committee oversight hearing chaired by Senator Richard Durbin (D-IL) last month, “her answer failed to address the continued shortcomings of the implementation,” Pavlo said. “There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward-looking FSA credits…This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented ‘soon.’ Over a year since those declarations, there is still no program to accurately calculate when a prisoner will leave an institution.”

The BOP is facing a substantial halfway house bed shortage as well. There is also the issue of insufficient halfway house space. Unlike HH/HC placement for prisoners without FSA credits, 18 USC 3624(g)(2) does not give the BOP discretion. Subsection 3624(g)(2) says that if a prisoner is eligible (has FSA credits not already applied to a year off of the sentence), he or she “shall be placed in prerelease custody as follows,” describing halfway house or home confinement. There’s nothing hortatory about it. The BOP is required to put the prisoner in HH/HC. Excuses not accepted.

halfway161117Pavlo argued that “the only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.”

Forbes, Time For A Bureau Of Prisons Task Force To Implement The First Step Act (October 16, 2023)

– Thomas L. Root

ACLU Questions Implementation of First Step – Update for April 24, 2019

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ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root

Not Even Halfway on Halfway – Update for October 31, 2018

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A SOBERING REPORT ON HALFWAY HOUSE AND HOME CONFINEMENT
Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
       Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

As Congress is on the verge of passing FIRST STEP Act, a prison reform measure which will let inmates earn substantially more halfway house or home confinement time for successfully completing programs that cut recidivism, the reality is that the BOP’s halfway house and home confinement programs needed to implement the Act may be dead on arrival.

Politico reported last week that even while inmate transfers to transitional housing (halfway house) have been delayed by many weeks and months, scores of halfway house beds lie empty (with some estimates of at least 1,000 vacant spaces) and home confinement has been drastically curtailed.

Just before he unexpectedly resigned last spring, BOP Director Mark Inch told Congress the agency is curbing transitional housing overspending of past years and streamlining operations. Yet, halfway house and home confinement are much cheaper than imprisonment: in 2017, the BOP reported it spent almost $36,300 a year to imprison an inmate, $4,000 more than the cost of halfway house placement. It costs a mere $363 a month to monitor someone on home confinement.

sessions180322Politico argued that “abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.” But Sessions’ policies are running headlong into those of President Trump, who has endorsed the FIRST STEP Act, which not only lets inmates earn significant additional halfway house/home confinement time for successful programming, but also directs that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted…”

In 2015, more than 10,600 federal prisoners were in halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, 7.1% of BOP inmates were in transitional housing. Since then, halfway house population has dropped by 28% and home confinement is in freefall, down 61% to 1,822. Most of that cut has happened in the last year. Now only 1 in 20 people under federal supervision is in transitional housing.

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, complained that “we are in the dark about those numbers.” He said the committee is working to establish better communication with the BOP, because, as Politico put it, “federal judges, who can sentence defendants to halfway houses, need to know how much space is available.”

Politico, President Trump Says He Wants to Reform Prisons. His Attorney General Has Other Ideas (Oct. 25, 2018)

83 Federal Register 18863, Annual Determination of Average Cost of Incarceration (Apr. 30, 2018)

Administrative Conference of U.S. Courts, Incarceration Costs Significantly More than Supervision (Aug. 17, 2017)

– Thomas L. Root

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BOP Director Does the Seagull Thing – Update for May 21, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. 

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BOP DIRECTOR SUDDENLY QUITS – MARKY, WE HARDLY KNEW YE…

Last Friday, at about the same time Trump advisor and son-in-law Jared Kushner was praising Bureau of Prisons Director Mark Inch’s accomplishments at a White House prison reform summit, Inch was signing his resignation letter. What no one knows is why.

Inch180521Inch, who as Commanding General of the Army’s Criminal Investigation and Corrections Commands, was the Army’s top cop. Inch served as an MP for 35 years, being promoted into flag ranks without ever serving in a combat unit. At Congressional hearings, he impressed us as little more than a Power Point Ranger (a derisive Army term for an officer who is more at home delivering Power Point briefings to fellow bureaucrat officers than schlepping his TA-50 and an M4 with a command of soldiers). Inch, whose uniform – bereft of any device suggesting he’d gotten within hearing distance of combat or, for that matter, had any appreciable warfighting training at all –  even drew scorn from members of the House Oversight and Government Reform Committee last April for his lack of information and evasive answers to the committee members’ questions. And these people are politicians who steep in bullshit every day.

seagullmission180521To be sure, General Inch seems to have pulled off a classic seagull mission – fly in, crap all over everything, fly out again. Halfway house  time was slashed during his watch. In the Second Chance Act, Congress increased the amount of halfway house the BOP could authorize for an inmate from six to 12 months. Now, with eight months of Inch’s leadership, the BOP has people who served 15 years plus lucky to get 90 days to transition from prison to self-reliance and employment. Last summer, Attorney General Jefferson Beauregard Sessions III picked Inch to clean up the BOP, but if anything, controversy surrounding the agency only increased since that time. While there has been strong media implication the BOP’s hard times caused Inch’s resignation, there is no direct evidence that this is so.

The New York Times reported that “it was not immediately clear why Mr. Inch, a retired Army major general who had joined the bureau in September, resigned.” USA Today called him “director of the embattled federal Bureau of Prisons.” The Washington Times referred to him as “the embattled director” of the BOP.

The Times noted the BOP “has been the target of a probe by the House Oversight and Government Reform Committee. For the past year, the bureau has been dogged by sexual harassment staffing shortages. An April USA Today article alleged the bureau had used hundreds of staffers to fill guard posts because of shortages and overtime rules.”

Hugh Hurwitz, former BOP assistant director for reentry programs, will step in as acting director. Hurwitz is pretty much a BOP lifer, having started his career as a law clerk in the Bureau’s office of the general counsel in 1988. 

New York Times, Director of Bureau of Prisons Steps Down (May 18, 2018)

USA Today, Federal prisons chief Mark Inch abruptly resigns from job he took over in September (May 18, 2018)

– Thomas L. Root

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BOP Director Has a Bad Day on Capitol Hill – Update for April 23, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. 

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BOP DIRECTOR SAYS THERE’S NOTHING BETTER COMING ON HALFWAY HOUSE

punchinface180423Talk about violence directed at BOP employees… Director Mark Inch was beaten up pretty well last week when he delivered his largely fact-free report on the BOP to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, with the chief executive at the BOP Coleman complex likely to have been taking it on the chin as soon as Inch could get out of the hearing room door.

We thought we were the only ones who found Director Inch’s obsequious and bureaucratic delivery tedious, but it became clear during his nearly 2-hour session that the Committee members were a little frustrated at Inch’s habit of turning every answer into a pretzel and coming up short on meaningful data about his agency.

Congressman Jamie Raskin (D-Maryland) asked about the cancellation of 16 halfway house contracts, and demanded Inch square that with the shortage of halfway house bed space nationwide. Congressman Jerrold Nadler (D-New York) cited the prior BOP director’s complaint that it is “scarce and expensive” to put people in halfway house, and demanded that Inch to explain the cancellations in light of the scarcity.

halfway161117In response to a question from Rep. Steve Chabot (R-Ohio) on BOP halfway house plans, Inch said the BOP spent $350 million on halfway house at 230 centers nationwide last year. Of the approximately 44,000 inmates released annually, he said, 80% get halfway house or home confinement placement. Inch said that reentry centers are “mostly important for inmates at the high end” of sentences.

In 2017, Inch said, the BOP overspent for halfway house and exceeded contractual limits on some locations while others were underused. He anticipated the halfway house placement will remain unchanged in 2018. “The challenges I look at – the constellation of our residential reentry centers is two things, is to the extent of how far out it can spread and the cost that is associated with it – our goal this year in 2018, is to have very clear usage figures data against the ascribed budget so I can make very logical budget requests in the future.”

Stripped of bureaucratic–speak, that means nothing is going to change in BOP halfway house placement any time soon.

work180423The representatives, who have been hearing loud complaints from their BOP employee-constituents, also pushed Inch hard on augmentation, the BOP practice of using noncustody people like nurses, teachers and front-office workers in CO positions. Inch assured the Subcommittee that all of the 6,000 BOP positions being eliminated this fiscal years were vacant, and not the reason for augmentation. The director told the Subcommittee that “a lot” of the BOP staffers used for augmentation had started their careers as COs, and thus were well qualified to fill in on custody positions.

Despite union protests and Federal Labor Relations Authority rulings in favor of BOP employees, the Director insisted that augmentation was safe for employees. “You say it’s not a dangerous situation?” Rep. Michael Johnson (R-Louisiana) asked Inch incredulously. “I’ve met with a number of these [BOP] people from my home state of Louisiana, and they’re not comfortable with this situation.”

At one point in the hearing, Inch was blindsided by charges the BOP was banning books, an allegation arising from a policy being adopted by the Coleman, Florida, federal prison complex. The Coleman policy, which goes into effect next week, bans purchase of any books except those bought through the commissary for a 30% surcharge over list.

ban180423Congresswoman Karen Bass (D-California), who apparently believed the policy was a BOP ban on books, asked the Director how he could adopt such a policy. Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. He suggested Rep. Bass’s understanding of the policy might be a misperception, leading her to snap back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

In point of fact, the Coleman policy is a book ban of sorts, because every inmate book request is filter through a BOP employee, who could simply refuse to honor a request for a book the BOP felt was inappropriate for whatever reason.

We suspect the Coleman warden, who appears to have violated the sacred bureaucratic rule of “don’t make your boss look bad,” got an unpleasant call from the Director about five minutes after the hearing ended.

House Judiciary Committee, Subcommittee on Oversight, Oversight of the Federal Bureau of Prisons (Apr. 17, 2018)

– Thomas L. Root

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