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Bureau of Prisons Says ‘Union, No’ – Update for September 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.

BOP CANCELS UNION CONTRACT FOR 30,000 EMPLOYEES

The Federal Bureau of Prisons last Thursday canceled its collective bargaining agreement with Council of Prison Locals 33, the national union representing more than 30,000 of its 34,900 workers. Cancellation of the contract, which would have expired in 2029, makes BOP employees “the latest group to be targeted by the Trump administration’s effort to assert more control over the government work force,” according to the New York Times.

BOP Director William K. Marshall III told employees that the union “has a proud history of advocating for its members, and I want to acknowledge the positive contributions it has made over the years… But when a union becomes an obstacle to progress instead of a partner in it, it’s time for change. And today, thanks to President Donald J. Trump and Attorney General Pamela Bondi, we’re making that change. Today, I’m announcing the termination of our contract with CPL-33 effective immediately.”

Marshall said that workers would not be fired, suspended or demoted without cause or due process, and that their pay and benefits were guaranteed by law to stay in place. Nevertheless, he told Brandy Moore White, the union’s president, that employees no longer have a right to union representation during meetings with management, investigative interviews or other proceedings. Earlier this year, the BOP prohibited the deduction of union dues from employee paychecks, causing union membership to plummet.

Moore White said, “Don’t be fooled, this is not about efficiency or accountability — this is about silencing our voice… “The vast majority of our members are Republicans and voted for this president. I literally cannot explain to you how many messages I’ve gotten from them saying this is such a slap in the face. This man vowed to protect law enforcement, and this is what we get in return. They just feel so blindsided and so frustrated with how this is going.”

She said the union plans to take legal action and seek a Congressional remedy.

Although Trump’s Executive Order issued last spring to cancel government union contracts made use of a narrow legal provision that lets a president suspend collective bargaining for national security, Marshall’s  announcement made no mention of any national security concerns. Instead, he just said the agency was ending the agreement because it believed collective bargaining was a “roadblock” to progress.

John Zumkehr, president of AFGE Local 4070 at FCI Thomson, argued the cancellation increases what he said is an already high risk of suicide among BOP employees. “When you strip away the protections we’ve fought for, you endanger the well-being of every officer and undermine the entire system,” Zumkehr said. “Instead of standing behind us, the Bureau is tearing down the few safeguards we have left.”

Writing in Forbes, Walter Pavlo noted that the BOP “has often been criticized by advocate groups as not being responsive to implementing laws, such as the First Step Act and Second Chance Act. Both of these pieces of legislation were slow to be implemented with some blaming the union for the lack of progress.”

He quoted Rabbi Moshe Margaretten, president of the Tzedek Association, a group instrumental in the creation and passing of the First Step Act, “As someone who has spent years working closely with the Bureau of Prisons on reform, I can say without hesitation that the union has been one of the greatest obstacles to real progress. For too long, every new policy, no matter how commonsense or beneficial to staff and inmates alike, had to be dragged through an approval process where the default answer was ‘no’… This is a watershed moment — an opportunity to finally build a Bureau of Prisons that works better for the men and women who serve in it and for the country as a whole.”

New York Times, Federal Bureau of Prisons Ends Union Protections for Workers (September 26, 2025)

BOP, Director’s Message (September 25, 2025)

AFGE CPL-33, Bureau of Prisons Union Condemns Administration’s Attack on Workers’ Collective Bargaining Rights (September 25, 2025)

Federal News Network, Federal Bureau of Prisons terminates collective bargaining agreement with AFGE (September 26, 2025)

Associated Press, Federal Bureau of Prisons moves to end union protections for its workers (September 25, 2025)

Forbes, Bureau of Prisons Cancels Collective Bargaining Agreement With Union (September 26, 2025)

~ Thomas L. Root

Will First Step Task Force Make A Difference? – Update for August 1, 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.

FIRST STEP TASK FORCE FINDING ITS FOOTING

Rick Stover, Senior Deputy Assistant Director of the Federal Bureau of Prisons’ Designation and Sentence Computation Center (DSCC), says that the BOP’s new First Step Act task force has begun evaluating prisoners now in halfway houses who could be transferred to home confinement if they were to receive the full benefit of “stacking” recommended Second Chance Act placement atop FSA time credits.

Writing in Forbes, Walter Pavlo said the task force – with over 30 DSCC analysts assigned – noted that while the SCA limits home confinement to the final 6 months (or 10%) of a sentence, “the end of the sentence is a moving target for some inmates because they continue to earn FSA credits each month even when they are at the halfway house. The Task Force is manually calculating these dates for inmates in halfway houses, because the BOP’s own computer program currently does not calculate these dates once inmates are released [to] halfway houses.” Mr. Stover said the task force is ensuring that such calculations will occur with the recent application updates.

Once that is done, Mr. Stover told Mr. Pavlo, the Task Force will focus on those currently in prison. Mr. Stover said, “As we… move inmates from the halfway houses to home confinement, we expect this to create a sizable number of open beds in many of our halfway houses across the country. This allows us to then revisit the placement dates for inmates currently in our institutions and increase the number of inmates that we can place in the community, and in many instances, allow inmates to get out of prison quicker to begin their transition to go home.”

Mr. Stover is optimistic, Mr. Pavlo reports. “While the Bureau has made marked improvements in our time credit calculation applications since the onset of the FSA statute, more improvements are needed. We have changes forthcoming that will simplify the data for both staff and inmates.”

The BOP effort to push prisoners out to halfway house and home confinement as early as possible is laudable, especially because some prison consultants think that the BOP has discretion to deny inmates their entitlement to FSA credits. I reported a month ago on the U.S. District Court for the District of Columbia’s dismissal of Crowe v. BOP. Former BOP Unit Management Section Chief Susan Giddings (now a private prison consultant), writing for herself and prison consultant Bruce Cameron last week, lauded the dismissal. She said that the Crowe court’s denial of class status

was particularly gratifying for the authors because they have consistently argued that 1) there is nothing in the FSA that eliminated or modified the Bureau’s designation authority, including halfway house and home confinement designations, and 2) the idea that the FSA required the Bureau to transfer an individual solely based their eligibility date regardless of any other compelling issues undermined the requirements of the Second Chance Act (SCA). The SCA required the Bureau to ensure that incarcerated individuals were provided with the same individualized consideration when making prerelease designation decisions as they were when making institution designation decisions. The decision-making process for prerelease placement (i.e., halfway house and home confinement) includes the inmate’s unit team making a prerelease placement recommendation based on a variety of factors, including but not limited to individual release needs, institutional conduct, the current offense, history of success or failure in prior community placement, and criminal history. The completed designation request is then sent to residential reentry staff, who then consider all the information provided by the institution, as well as the community program resources and any community safety issues when making the designation decision.

I disagree with Dr. Giddings and Mr. Cameron that Crowe went as far as they argues it does and that the decision is a good thing. Walt Pavlo may agree with me. He implicitly suggests that keeping inmates in BOP prisons when they are legally eligible for less restrictive incarceration may be due to a BOP mindset as much as anything. Earlier this week, Mr. Pavlo described the problem as being that

the BOP has lacked leadership to lead it into the modern era of incarceration. It is an Agency that prospered during the days of locking up drug offenders that saw the federal prison population top over 220,000 in 2013. Then as buildings became old and decrepit, it failed to keep up and now BOP employees sit in the same rotting, molded facilities that house the inmates they watch.

Dr. Giddings and Mr. Cameron seem confident that BOP decisionmakers will do the right thing by the inmates they oversee, and that they both need and will responsibly use the authority to withhold FSA placement based on SCA factors that they argue that the law provides. Their view is shared by a number of commentators and many US Attorneys’ offices, and is worth noting.

At the same time, Mr. Pavlo’s blunt suggestion that Bureau employees are locked in old thinking is a notion shared by its own cohort of observers.  New BOP Director Marshall so far has made some promising moves, including the Task Force. Now, the Task Force has to perform.

Forbes, Bureau of Prisons Task Force Taking Shape, Challenges Remain (July  23, 2025)

Giddings, Crowe, et al. v Federal Bureau of Prisons, et al: Common Sense for the Win! (July 25, 2025)

LISA, Class Action FSA Credit Lawsuit Against the BOP Case Dismissed (June 16, 2025)

Forbes, Bureau Of Prisons Could Fix First Step Act, If It Had The Will (July 29, 2025)

~ Thomas L. Root

A Short Rocket of BOP News – Update for July 24, 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.

LAST WEEK AT THE BUREAU OF PRISONS

You’d think that the sole focus of the Federal Bureau of Prisons in the last week had been how to produce celebrity prisoner Ghislaine Maxwell for a Congressional deposition. But from Duluth to Alcatraz, there was a lot else going on as well. Here’s the short rocket…

Marshall Establishes FSA Task Force:   Bureau of Prisons Director William K. Marshall III announced the established of an FSA Task Force at the BOP’s Grand Prairie, Texas, Designation and Sentence Computation Center.

Marshall cited inmate “frustration that their paperwork for home confinement under the First Step Act (FSA) wasn’t being processed by staff despite Director Marshall’s directive to maximize the use of community placement. But at the same time, the staff told [Marshall] that the systems they rely on weren’t always showing the right dates… The majority of staff were doing their best with the information they had, but, unfortunately, they were taking the blame from inmates and families who thought they were dragging their feet. That wasn’t fair to them.”

The task force will identify prisoners in halfway houses who are eligible for home confinement; manually calculate home confinement dates that “stack[] both the FSA and Second Chance Act;” and ‘[r]eview eligible incarcerated individuals inside institutions for additional community placement opportunities.”

Writing in Forbes, Walter Pavlo said, “Having a person serve a portion of their sentence in the community is not something new and has been used for decades by the BOP. However, the Agency has been slow to move inmates after the [First Step Act] was codified… in January 2022. The initiative is part of Director Marshall’s broader strategy of “Leadership in Action,” which has included institutional walk-throughs, direct engagement with frontline staff, and timely operational changes based on what he hears.”

BOP, Director Marshall Launches FSA Task Force (July 14, 2025)

Forbes, Bureau of Prisons Launches First Step Act Task Force (July 14, 2025)

Alcatraz Moves Forward:  Never mind that the price tag has blown through $2 billion to renovate a prison closed for 60 years that only houses 325 prisoners and has no water supply. A visit to Alcatraz Island in San Francisco Bay last week by Attorney General Bondi, Dept of the Interior Secretary Doug Burgum, Marshall, and BOP Deputy Director Joshua J. Smith makes it clear that President Trump’s May musings on social media that he wanted to reopen Alcatraz as a federal prison to “house America’s most ruthless and violent offenders” and remove criminals “who came into our country illegally,” is going to happen.

A BOP press release underscores that reopening Alcatraz is pure symbolism, the fevered dream of President Trump: “Reopening Alcatraz isn’t just about a building, it’s about sending a message: crime doesn’t pay, and justice will be served. If feasible, Alcatraz will stand as a beacon of American resolve, where the most dangerous offenders face accountability. For the public, it’s a promise fulfilled—a stronger, safer America. And for President Trump, it’s a project that will make our nation proud.”

Alcatraz was closed as a maximum-security prison in 1963 after 29 years of operation, because it was too expensive to continue operating. Now managed by the National Park Service, the island is one of San Francisco’s most popular tourist destinations.

BOP, The Rebirth of Alcatraz (July 17, 2025)

NY Times, Trump’s Plan to Reopen Alcatraz Appears to Move Forward With Officials’ Visit (Jul 17)

FPC Duluth to Remain Open: Seven months after the then-BOP Director Colette Peters listed FPC Duluth with six other facilities that would be closed because of “aging and dilapidated infrastructure,” new BOP boss William K. Marshall III announced last week after a site inspection that the minimum-security camp “will not be deactivated.”

Currently, there are only about 258 inmates remaining at the facility, but officials anticipate repopulating the camp to its rated capacity of about 800 prisoners. The camp is located on the grounds of the former Duluth Air Force Base.

Minnesota Public Radio, Duluth prison camp to remain open, reversing earlier decision to ‘deactivate’ the facility (July 16, 2025)

ICE Sending Immigrant Detainees to FDC Honolulu, Proposes Using Fort Dix: Under normal circumstances, scoring an all-expenses-paid trip to Hawaii would be a Wheel of Fortune moment.  But these are not normal circumstances.

It turns out that over 70 immigrant detainees, some from as far east as Florida, are being flown to imprisonment at the Federal Detention Center in Honolulu.

The Honolulu Civil Beat quoted one immigration lawyer as saying that a client “was taken into custody in Florida and went to two detention centers there before he was transferred to Louisiana, Arizona and two facilities in California before finally coming to Hawaiʻi.” Attorneys are complaining that the endless moves and distances make consultation with their clients almost impossible.

Homeland Security Secretary Tom Homan said over the weekend that 60,000 immigrants are currently in custody, with plans for 40,000 more.

Still, air conditioning in the Aloha State may be better than a tent in the South Jersey heat. Last week, Secretary of Defense Pete Hegseth approved the use of Joint Base McGuire-Dix-Lakehurst, where FCI Fort Dix is located, to confine immigrants. The Defense Department said detainees would be confined in “temporary soft-sided holding facilities,” suggesting for now that facilities at the aging FCI Fort Dix – located on base grounds – will not be used.

Honolulu Civil Beat, ICE Is Moving Immigrants Arrested On The Mainland To Honolulu (July 16, 2025)

Philadelphia Inquirer, Trump administration plans to hold immigration detainees on South Jersey military base (July 18, 2025)

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

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

Things Are Seldom What They Seem – Update for June 2, 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 OL’ SWITCHEROO

buttercup250602Unless you’re my age (and I am not telling you what that age might be), you’re probably not familiar with Gilbert and Sullivan’s light opera, 19th-century musicals that parodied British life. In H.M.S. Pinafore – perhaps their best-known work – low-class Buttercup pines for the high-born captain of the Royal Navy warship HMS Pinafore. At one point, she tries to hint to the Captain that despite their difference in societal status, they might be able to hook up.

She sings,

Things are seldom what they seem, skim milk masquerades as cream, black sheep dwell in every fold, all that glitters is not gold…

Remember two months ago, when the BOP said no one would get more than 60 days of Second Chance Act halfway house time, only to recant a week or so later? It seemed that the problem had been solved. Unfortunately, as the Bureau of Prisons proved last week, the fix was illusory, as “storks turn out to be but logs” or “Bulls are but inflated frogs.”

A new BOP memorandum issued last week at first seemed to be a wonderful expansion of home confinement, but it in fact strips away SCA rights from prisoners who have been serving the longest sentences.

We have not seen the memo, just a press release. The release provides that home confinement will be “a priority for individuals who are eligible and do not require the structured support of an RRC. RRC placement will be reserved for those with the greatest need.” What’s more, unit teams are directed to “use FSA and SCA Conditional Placement Dates—based on projected Earned Time Credits (FTCs) expected to earn—to guide prerelease planning and ensure accurate and timely referrals.”

More home confinement? Great news, right?

Not really. The new policy does not expand the BOP’s authority to place people on home confinement by even one day. Ever since 2008, the BOP has had the authority to place inmates in home confinement for the final 10% of their sentences (up to a maximum of 6 months) under 18 USC § 3624(c)(2). Six years ago, the First Step Act amended § 3624(c)(2) to direct that the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

Just like Dorothy always had the power to go back to Kansas, the BOP has had the power to send prisoners to home confinement.
Just like Dorothy always had the power to go back to Kansas, the BOP has had the power to send prisoners to home confinement.

However, none of the BOP’s authority meant much up to now. BOP staff largely did not send people directly to home confinement. It was easier to send them to halfway house and then let the halfway house send them on to home confinement and do the monitoring. The halfway houses were glad to do it, because it freed up a bed they could sell for another inmate, and they still got some payment for the inmate they were continuing to monitor.

Suddenly, the BOP has figured out that it can better use the limited number of halfway house beds it has under contract (and save money) by sending low-risk inmates directly to home confinement. It’s the right call, but it doesn’t expand the availability of home confinement one bit. The BOP has no more power to put people on home confinement today than it had a week ago, a month ago, a year ago, or even as of December 21, 2018.

What’s worse is what the memo does NOT say. On Saturday, Walter Pavlo reported in Forbes that “[w]hen asked whether inmates are still eligible for Second Chance Act placement up to 12 months prior to their FSA conditional placement date, as has been the case, the BOP responded, ‘Due to statutory restrictions found in 18 U.S.C. § 3624(c)(1), an individual who has earned 365 days (12 months) of First Step Act credits to be applied to prerelease custody cannot receive additional prerelease time under the Second Chance Act.’”

This means that no one with 730 or more FSA credits will get any SCA halfway house or home confinement. Pavlo wrote, “The BOP’s current stance contradicts its position from just a few months ago, when it stated that stacking First Step Act and Second Chance Act benefits was permissible. Now, without addressing its previous position, the BOP asserts that home confinement under the Second Chance Act is only allowed by law during the final 12 months of a prison sentence.

home210218Additionally, the BOP claims that home confinement under the First Step Act can only be applied when the First Step Act time credits earned are equal to the remaining length of the prison term. This means an inmate cannot apply First Step Act credits to home confinement while also receiving up to 12 months of prerelease custody (6 months in a halfway house and 6 months in home confinement) under the Second Chance Act. For many inmates, this change means they will have to remain in prison for up to a year longer than they had initially expected.”

In the press release, BOP Director William K. Marshall III boasted that “President Trump said he would fight for the forgotten men and women of this country, and the First Step Act proved he meant it. Now, we are ensuring that this reform continues to work—not just as a policy, but as a promise to Americans seeking redemption and a path forward.”

BOP Press Release, Federal Bureau of Prisons Issues Directive to Expand Home Confinement, Advance First Step Act (May 28)

Forbes, Prisoners Set Back By Bureau Of Prisons Home Confinement Expansion (May 31)

– Thomas L. Root

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

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

Bad Cases Make Hard Law – LISA Newsletter for September 12, 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.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act.  Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root