Tag Archives: halfway house

Shocking News from GAO! BOP Has Messed Up FSA Placement! Who’d Have Guessed? – Update for February 17, 2026

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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.

GAO PAINTS PICTURE OF DEADBEAT BOP’S CHAOTIC HALFWAY HOUSE MANAGEMENT

The Government Accountability Office painted a bleak picture of the Bureau of Prisons’ halfway house placement program, a chaos of mismanagement that deprives inmates of First Step Act credits they have earned and halfway house operators of payments they are owed.

The 7-year-old First Step Act encourages federal prisoners to complete programs proven to reduce recidivism by promising them earned time credits that can shorten sentences and extend their time in prerelease custody in Residential Reentry Centers or RRCs (which we know as halfway houses) and on home confinement. Writing in Forbes last week, Walter Pavlo said, “Lawmakers understood what correctional professionals have long known. The last months of a sentence should focus on reconnecting people to jobs, housing, and families, not warehousing them in prison.”

Reality, however, is muted. The GAO reports that not only has the BOP not consistently moved eligible inmates into halfway houses on time, but often, the BOP does not even know how many people are eligible for and entitled to placement.

The Report said that “BOP officials said they do not know because the dates individuals are eligible to transfer are not readily available… GAO found that BOP did not apply all the earned time toward placement in RRCs and home confinement for 21,190 of 29,934 individuals reviewed, for reasons such as insufficient RRC capacity and court orders. However, the full scale of this issue is unknown due to the lack of readily available data on eligibility dates.”

The problem has been due in part to limited capacity in BOP-contracted halfway house and home confinement spaces, BOP officials told GAO. However, the Report stated, “BOP does not know the full extent of this shortage because it has not comprehensively assessed its capacity and related budgetary needs. Without these assessments, BOP cannot ensure it has enough space for incarcerated individuals to transfer on time. BOP could also miss opportunities to increase revenues and decrease costs to the federal government.”

As of September 30, 2024, the BOP was using 91% of its contracted halfway house beds and 121% of its contracted home confinement space. A full 38% of halfway houses were at or above 95% capacity, and 62% were at or above the 95% capacity for halfway house slots. In fairness to the BOP, since William K. Marshall III assumed the Director’s slot, the agency has prioritized home confinement through the alternative Federal Location Monitoring program, managed by the US Probation Office instead of halfway house staff.

GAO also found that the BOP has been a deadbeat on a scale that would get a defendant on supervised release sent back to prison. From 2022 through March 2025, the Bureau “made roughly 65,000 late payments to contractors, including to RRCs,” according to the Report. “As a result, the agency paid $12.5 million in interest penalties as part of $2.8 billion in payments to contractors. In addition, GAO found that BOP paid RRCs late about 70% of the time, from fiscal years 2023 through 2024.”

It should be unsurprising that halfway houses would be less than enthusiastic about working with the BOP to expand their businesses: the Report said that as a result of late payments, halfway houses “face hardships due to the late payments — needing private loans to pay staff. One halfway house representative said late payments have made some halfway houses reluctant to bid for new BOP contracts, which can further complicate BOP’s plans to expand capacity.”

Pavlo wrote, “The BOP understands that it has a problem and after years of not addressing it now realize that the solution is going to take time.” A BOP spokesman said, “[T]he Bureau has actively posted Requests for Information… in more than 20 locations nationwide to expand RRC and home confinement services… With respect to home confinement, the Bureau is transferring individuals as quickly as possible once they reach their Home Confinement Eligibility Date and meet all statutory and public safety criteria. We are committed to ensuring individuals are not held longer than necessary when they are appropriate for home confinement placement.”

Government Accountability Office, Bureau of Prisons: Actions Needed Better Achieve Financial and Other Benefits of Moving Individuals to Halfway Houses on Time (February 11, 2026)

Forbes, GAO Critical of Bureau of Prisons Use of Halfway Houses (February 12, 2026)

~ Thomas L. Root

Less than Meets the Eye – Update for June 30, 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.

A TRULY SHORT STACK

A week ago, I reported that BOP Director William K. Marshall III had announced the dawning of a new day in the use of First Step Act credits (FTCs) and the Second Chance Act. Among his several promises was that his new policy “ensures that FSA Earned Time Credits and SCA eligibility will be treated as cumulative and stackable, allowing qualified individuals to serve meaningful portions of their sentences in home confinement when appropriate.”

It turns out that the new memo doesn’t exactly say “cumulative and stackable”. Instead, it directs that “[i]n addition to FTCs for those individuals who have earned less than 365 days of FTCs, staff must also consider adding up to an additional 12 months of prerelease time under the SCA, based on the five-factor review.”

Under the heading “The Rules Are Clear,” a number of institutions last week issued guidance that doubled down on the memo. The “guidance” stated, “For individuals who have earned less than 365 days of FSA time credits towards supervised release, staff must also consider adding up to an additional 12 months of pre-release time under the SCA based on the five-factor review. The FSA Time Credit Worksheet for time under the SCA defaults to and will remain “zero” until your Unit Team inputs the pre-release time as determined based on the five-factor review. The number will range from zero to 12 months.”

Notwithstanding the heading, the only thing “clear” in all of this is the implication that, despite what the Director said, people who have more than 365 FTCs to be used toward prerelease custody will probably not be getting any SCA time whatsoever.

Practically speaking, no one with a sentence of under 46 months will earn any FTCs that go to prerelease custody. That’s because it is only mathematically possible to earn 365 days in a sentence of that length, after being adjusted for good time granted under 18 USC § 3624(b). All of the 46-monthers’ FTCs will be used up in cutting their sentences by 12 months. It will take a sentence of at least 74 months before a prisoner has accumulated more than 365 additional FTCs to be used toward more halfway house or home confinement. So the people with the most time – more than 74 months – being the ones most likely to benefit from the stacking, who will feel the impact of the non-stacking “stacking.”

Much of the problem arises from the tension between First Step and the SCA. Under the “five-factor review” (set out in 18 USC § 3621(b)), inmates are placed in halfway house not as a reward but rather because they need the prerelease custody time to give them “a reasonable opportunity to adjust to and prepare for the reentry.” 18 USC § 3624(c). First Step, on the other hand, treats halfway house/home confinement as a reward for earning FTCs. There’s nothing wrong with either approach, but the problem comes in mixing the two: despite all the fine talk about time being “cumulative and stackable,” the five-factor review applied to someone who is already entitled to 12 months in a halfway house as an incentive under the FSA is very unlikely to need any more than that amount of time there to have “a reasonable opportunity to adjust to and prepare for the reentry.”

The “five-factor review” will and probably should disqualify anyone with 12 months of prerelease custody under the FSA from any additional SCA prerelease time. If 12 months in a halfway house isn’t enough to prepare an inmate for release into the community, then (1) he or she probably is not rated as having a low chance of recidivism to begin with, and thus is ineligible to use any accumulated FTCs; and (2) will not make it in society once released.

I got email from an inmate last week denouncing the institutional guidance as “a very inmate-unfriendly interpretation of how FSA and SCA interact (despite the FSA saying time limits on SCA don’t apply and that FTCs should be in addition to other incentives).” But SCA halfway house was never meant to be an incentive, but rather was intended to be a tool for people who needed the transition time and services of a halfway house.

For now, the Director’s new policy suggests that we’ll see a lot more FSA prerelease time served on home confinement. That’s probably good for the BOP and prisoner alike. However, despite the “stackable and cumulative” talk, there is little reason to think that the “five-factor review” will result in stacked FSA and SCA prerelease custody time than it did before.

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

BOP, Memorandum on Use of Home Confinement as a Release Option (June 17, 2025)

BOP, Home Confinement and Pre-Release Placement Updates (June 25, 2025)

– Thomas L. Root

More About the Cheese – Update for June 23, 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.

THE DEVIL’S IN THE DETAILS

Last Friday, I wrote about the Federal Bureau of Prisons’ latest pronouncements on how it would implement the “awards” portion of the First Step Act time credits (FTCs) program.

You recall that federal prisoners may earn FTCs for successful completion of evidence-based recidivism reduction programs (EBRRs), classes and vocational programs and therapy shown to reduce their likelihood to again fall into crime after release.

By and large, the EBRR program is good stuff. The Attorney General’s report last June reported that recidivism among people who had completed recidivism assessment and programming was coming in substantially lower than even the rosy assessments made right after First Step passed. (Note: We should be seeing the AG’s June 2025 update any day now).

To entice inmates to earn FTCs, the First Step Act provided that the credits could reduce the sentence of an eligible prisoner by up to a year, and FTCs left after the sentence reduction could be used for more halfway house and home confinement. But the BOP has been all over the map as to how to implement the awards, leaving a lot of prisoners and their families feeling puzzled, frustrated or betrayed.

The other factor in play is the BOP’s authority under the Second Chance Act of 2007 to place an inmate in a halfway house for up to 12 months at the end of his or her term, with 10% of his or her sentence (up to six months) of the final term being served on home confinement.

Last week, I only had the BOP’s press release to work from, but over the weekend, I obtained a copy of the new memo – entitled “Use of Home Confinement As A Release Option.” The 4-page memorandum from BOP Director William K. Marshall III to wardens suggests a bold, new pro-release mindset at the BOP, but – as with everything in this world – the devil’s in the details.

The memo’s highlights:

• The BOP will treat its authorizations under the First Step Act and Second Chance Act as cumulative. BOP staff shall and apply those in sequence to maximize prerelease time in community custody, including home confinement.

• Halfway house “bed availability/capacity shall not be a barrier to home confinement when an individual is statutorily eligible and appropriate for such placement.”

• If a First Step Act or Second Chance Act eligible prisoner does not require the services of a halfway house, the inmate “shall be referred directly from an institution to home confinement.” Halfway house “placement should be prioritized for those in our custody with the most need for services available at a [halfway house].”

• Referrals shall proceed with the understanding that so long as prisoners meet First Step Act and Second Chance Act eligibility requirements, “they shall receive the forecasted credits and ordinarily should not experience delays in prerelease placement based on administrative timing, presumed [halfway house] capacity limits or placement constraints, or pending credit accrual.”

• Under the Second Chance Act, inmates may be placed in prerelease custody for a period of up to 12 months (halfway house) or 6 months or 10 pct of their sentence (home confinement), whichever is less. “The Second Chance Act Conditional Placement Date reflects the window under 18 USC § 3624(c) —up to 12 months (halfway house) or 6 month or 10% of the sentence (home confinement)—for which the individual is expected to qualify, subject to a five-factor review. “There is no restriction concerning how many FTCs may be applied toward home confinement. For individuals only eligible under the Second Chance Act, referrals must comply with 18 USC § 3624(c), including a five-factor review and documentation of eligibility based on sentence length (12 months [halfway house] or 6 month or 10% (home confinement), whichever is less).”

• For prisoners “who have earned less than 365 days of FTCs, staff must also consider adding up to an additional 12 months of prerelease time under the Second Chance Act, based on the five-factor review.”

• Home confinement candidates must be able to show a verified and stable home environment that supports monitoring, appropriate supervision, and safe community reentry and integration, and that they pose no public safety or placement disqualification. Employment history shall not be required. For individuals at or near working age, potential for employment may be considered positively, but is not mandatory.

Note what has not changed: Second Chance Act placement is still based on the BOP’s “five-factor” review, found in 18 USC § 3621(b):

(1) the resources of the halfway house;

(2) the “nature and circumstances of the offense;”

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence about “the purposes for which the sentence to imprisonment was determined to be warranted; or recommending a type of penal or correctional facility as appropriate;” and

(5) any pertinent Sentencing Commission policy statement.

The memo and the “five factor” review contain enough wiggle room to enable the BOP to justify disqualifying Mother Teresa from halfway house or home confinement placement. Home confinement will be allowed for “qualified individuals,” but the memo directs that “placement decisions should prioritize public safety and the overall stability of the release plan.” Second Chance Act halfway house time is subject to review that is broad enough to let the BOP cut or take away halfway house on the basis of the crime or what it thinks of the prisoner.

Those persons who recall that in the late months of CARES Act home confinement placement, the BOP began asking inmates’ prosecutors for their views on sending a prisoner home, may have good cause question what may happen in the latest opaque review process.

BOP, Memorandum on Use of Home Confinement as a Release Option (June 17, 2025)

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

– Thomas L. Root

Enticing But Evanescent BOP Cheese – Update for June 20, 2025

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BOP DANGLES THE FIRST STEP CHEESE AGAIN

So, let’s see… the Federal Bureau of Prisons first proposed that a prisoner would have to spend eight hours in one of its program classrooms in order to earn one day of First Step Act time credit (FTC) to reduce her sentence or get an extra day of halfway house. Then it reversed course, holding that an inmate would receive one day of FTC credit for every day she was enrolled in the course.

Then the BOP said that when a prisoner’s FTC credits equaled the number of days left his sentence, he would be sent to a halfway house. But wait, that was only when the halfway house finally said he could come, however long that delay might be.

The BOP said that a prisoner was entitled to as much halfway house or home confinement time as she could earn in FTCs, and on top of that, she could get up to a full year in halfway house under the Second Chance Act. But then the agency said that no one could get more than 60 days in halfway house under the SCA, no matter what the law said. But then, the BOP said that was wrong, and prisoners could get a full year under the SCA. After that, the BOP decided that any prisoner with a full year’s worth of FTCs was ineligible to get any SCA time in a halfway house.

Got it?

Not yet, because in its latest policy reversal/about face/ tweak, the BOP this week decided that its last pronouncement was “inoperative,” as Nixon White House spokesman Ron Ziegler famously said. Now, BOP Director William K. Marshall III has announced “the dawn of a new era,” a restoration of “integrity and fiscal responsibility to the federal prison system.” This of course is a tacit admission that integrity and fiscal responsibility have been wanting at the BOP, akin to the emperor acknowledging that yes, indeed, he is naked as a jaybird.

Marshall said in a press release that henceforth

• FTCs and SCA eligibility will be treated as cumulative and stackable, “allowing qualified individuals to serve meaningful portions of their sentences in home confinement when appropriate.”

• The BOP’s Conditional Placement Dates — “based on projected credit accrual and statutory timelines — will drive timely referrals, not bureaucratic inertia.”

• Stable housing and “community reintegration readiness, not past employment,” will guide placement decisions.

• Halfway house bed capacity will not be a barrier to home confinement placement when a prisoner is statutorily eligible and “appropriate for such placement.”

The press release quotes Marshall as saying the new policies “mark[] a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

The latest policy flip-flop comes on the heels of Marshall’s appointment, the week before, that BOP veteran Richard Stover has been appointed “to serve in furthering the implementation of the First Step Act.”

That announcement did not specify Stover’s title, place in the chain of command, or precise duties. Nevertheless, in the six plus years since passage of First Step, the BOP has not designated any management-level employee as being responsible for BOP compliance with the law. Marshall said that appointment of Stover to oversee First Step implementation and Josh Smith as Deputy Director “reflect a critical investment in strengthening our leadership infrastructure to better support staff, improve operations, and fully implement the First Step Act—the cornerstone of our path to safer facilities and stronger outcomes.”

Stover has 28 years with the Bureau, starting as a case manager, rising to Warden and ultimately serving as a Senior Deputy Assistant Director. Most recently, Stover ran the Designation and Sentence Computation Center in Grand Prairie. Marshall said in his announcement of the appointment that Stover’s “work developing the First Step Act Time Credits policy and his leadership at institutions like FCI Danbury demonstrate his deep expertise in executing complex reforms with clarity and precision.”

All of this is great stuff, but like Charlie Brown with Lucy holding the football, we’ve been here before. It has always been baffling to me that the BOP, chronically broke and understaffed, wasn’t hustling people with accumulated FTCs into inexpensive home confinement as quickly as possible under 18 USC 3624(g)(2). Under the SCA, the BOP can only place a prisoner in home confinement for 10% of an inmate’s sentence (up to six months maximum). But 100% of a prisoner’s FTCs can be used for home confinement.

Skeptics (and heaven knows I am one) note that even the press release contains just enough wiggle room to let the BOP take away everything it has given. Home confinement will be allowed for “qualified individuals,” but who is “qualified” and under what criteria (and decided by whom) is opaque. After all, prisoners must be “appropriate for such placement,” whatever that means.

For that matter, promising that statutory eligibility “will drive timely referrals, not bureaucratic inertia,” has a chicken-in-every-pot flavor to it. Just like no one asked where all those chickens were going to come from, the idea that people are going to go to halfway houses that won’t accept them has a delusional quality to it that matches its lofty blandishment.

Walter Pavlo, writing in Forbes, observes:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

Challenge, indeed. My take on it is a little less diplomatic: The cheese has been dangled in front of the inmate mice again. Let’s see how soon it is moved this time.

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

Forbes, Bureau of Prisons Retracts Rule, Truly Expands Halfway Houses (June 17, 2025)

BOP, Message from the Director (June 5, 2025)

– Thomas L. Root

Class Action FSA Credit Lawsuit Against the BOP Case Dismissed – Update for June 16, 2025

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DC COURT DISMISSES CHALLENGE TO BOP FSA CREDIT HALFWAY HOUSE PLACEMENT

You may recall that last December, the Criminal Law Reform Project, ACLU and mega law firm Jenner & Block sued the Bureau of Prisons for denying prisoners placement in halfway house or home confinement for the full term earned by their FSA time credits (FTCs).

Last week, the case died an ignominious death.

The case sought to certify a class action – the class being defined as anyone who now or in the future would be eligible to use FTCs for prerelease custody – to win a judicial holding that BOP rules sending a prisoner to halfway house only when the halfway house said it had space available violated 18 USC §§ 3624(g)(1) and (2). That statute says that when a prisoner has earned FTCs “in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment… [he or she] shall be placed in prerelease custody.” (Emphasis is mine).

BOP rules and policies, however, let the agency delay placement until space is available at a preferred halfway house, no matter how long that might be.

The suit argued that the BOP’s rules and policies violated 5 USC § 706(1) (contending that the BOP’s application of FTCs is “unlawfully held or unreasonably delayed”) and § 706(2) (the BOP’s rule on application of FTCs is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). In its ruling, the U.S. District Court for the District of Columbia held that the plaintiffs could not justify establishing a class for litigating the 706(1) claim, because whether placing an FTC inmate in halfway house was “unreasonably delayed” past the eligibility date depended on the length of the delay and reasons for it, both questions that were individual to the inmate in question.

The District Judge held that a class action had been justified on the § 706(2) “arbitrary, capricious, an abuse of discretion” question, but the Court nonetheless granted the BOP’s motion to dismiss the count. The prisoners’ suit argued that § 3624(g)’s language that eligible prisoners “shall be placed in prerelease custody” means that the BOP must place them in halfway house as soon as they are eligible. But the Court disagreed. It held that the prisoners’

“shall-means-shall” argument overlooks that § 3632(d)(4)(C) does not specify when a prisoner must be transferred to prerelease custody. Instead, it provides that the BOP “shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Section 3624(g), in turn, establishes the criteria for eligibility. Neither § 3632(d)(4)(C) nor § 3624(g) says that the BOP must transfer a prisoner immediately upon achieving eligibility. Section 3632(d)(4)(C) is best read as a directive that identifies what group of prisoners the BOP must transfer into prerelease custody, not as establishing an immutable date by which the BOP must effectuate individual transfers.

The Court acknowledged that “some district courts have held in the habeas context that the FSA requires the BOP to transfer an individual prisoner to prerelease custody once they become eligible… None of these cases, however, presented the argument made here by Plaintiffs, which is that the FSA compels the BOP to transfer every prisoner on the date of eligibility.”

The 48-page decision is detailed and fairly well reasoned. While not slamming the door on lawsuits to force BOP compliance with timely placement of FTC prisoners, Judge Amit Mehta’s ruling highlights the procedural and substantive obstacles to doing so. As such, it should be required reading for those seeking to force the Bureau to send them to prerelease custody on their FTC eligibility date.

Crowe v. Federal Bureau of Prisons, Case. No 24-cv-3582, 2025 U.S. Dist. LEXIS 109052 (D.D.C., June 9, 2025)

– Thomas L. Root

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

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

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

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