Bureau Of Prisons Retracts Rule, Truly Expands Halfway House

Trying to Get First Step Act Right

In May, Bureau of Prisons (BOP) distributed a memorandum stating that inmates who have earned 365 days of First Step Act (FSA) credits for prerelease custody are not eligible for additional prerelease time under the Second Chance Act. Further, it stated that those who had shorter sentences, under 4 years, and who had a home to stay in, could only get home confinement under the Second Chance Act. That limitation, 10% of the sentence imposed up to a maximum of 6 months, meant that many minimum and low security inmates would stay in institution correctional facilities for much longer.

Prerelease Custody

There are two components to the transition from the prison institution to the community. The first is a stop at a halfway house, which are operated by for-profit and non-profit entities that provide staffing to care for and monitor returning inmates. These inmates come from every BOP security level from minimum security campers to those coming from high security US Penitentiaries. The accommodations are modest with a bed, perhaps a television and some delivered meals for breakfast and dinner. Those in halfway houses are expected to have a job during the day. Inmates can earn passes to go home on weekends beginning on Fridays and returning on Sundays.

The other component is home confinement, which allows an inmate to live in their own home, go to work and be subjected to monitoring by an ankle bracelet or some special cellphone. Home confinement is capped at 6 months depending on the sentence length but many in prison long to be in the community sooner to earn wages and be closer to their family members.

This combination of halfway house and home confinement has been used for decades by the BOP but the FSA allowed inmates to earn an unlimited amount of prerelease custody through participation in programs and productive activities. This obviously benefits those with longer prison terms. However, limitations in capacity at these halfway houses, BOP funding and policy implementation has caused a backlog leaving inmates in expensive institutions much longer than necessary.

The New Memorandum to Expand Community Confinement

Director William Marshall III issued an internal memorandum to all wardens in the BOP stating, “To be clear, FSA [First Step Act] and SCA [Second Chance Act] authorities are cumulative and shall be applied in sequence to maximize prerelease custody, including home confinement (HC). Residential Reentry Center (RRC) bed availability/capacity shall not be a barrier to HC when an individual is statutorily eligible and appropriate for such placement.”

This directive given in the memorandum represents a bold departure from earlier efforts by the BOP to restrict prerelease custody and it is the first time that the BOP has recognized the word “shall” in the context of placing eligible inmates into halfway house and home confinement. Previously, the BOP has stated that any move to prerelease custody was based on availability of halfway house space. While no specifics were given in the memorandum as to expansion of halfway house capacity, the BOP must have a plan in place. In fact, when the BOP was still searching for a new Director and Deputy Director, it issued a memorandum stating that prerelease custody was going to be curtailed because of budgetary concerns. That memorandum was overturned as well.

The BOP’s Office of Public Affairs issued a press release concerning the changes and stated the following key points (bold print was emphasized by BOP):

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.

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.

RRC bed capacity limitations will not be a barrier to Home Confinement when an individual is statutorily eligible and appropriate for such placement.

Does BOP Have Halfway House Capacity

Fully implementing the FSA depends on a place to either house or monitor inmates in the community. That capacity comes from halfway houses. The BOP faces significant challenges regarding the adequacy of its halfway house capacity. These centers play a crucial role in reintegrating inmates into society by providing structured environments that facilitate employment, counseling, and other reentry services.

Despite the essential function of RRCs, the BOP has struggled to meet the growing demand for these facilities. Reports indicate that the BOP’s RRC population has often exceeded contracted capacity, with some facilities operating at over 100% capacity. This overutilization has led to challenges in providing adequate services and accommodations. Moreover, the BOP’s efforts to expand RRC capacity have been hindered by various factors, including zoning difficulties and delays in facility openings.

The Case Manager Barrier

The BOP has traditionally had a communication problem between the central office leadership who make the policy and the case managers who implement that policy on the ground. This is particularly true of the FSA. Case managers are responsible for overseeing the rehabilitation and reintegration of inmates, including developing individualized treatment plans, monitoring progress, and recommending changes to custody levels. They also facilitate communication between inmates and the courts, manage security concerns, and assist with transitioning inmates to community-based programs such as halfway houses.

That transition and when to start the process for transitioning the inmate back into society falls on the shoulders of the case manager. With FSA and Second Chance Act, the date a person leaves prison is very much a calculation that everyone needs to understand. It has also been unequally applied across institutions where some case managers have been reluctant to implement policies for unknown reasons. That is not a problem that should be on the case manager, that is a leadership problem that has existed for years as 122 institutions essentially are self-contained prisons with different leaders, wardens, who have their own interpretation of policy. This inconsistency of implementing a law has been the achilles heel of the BOP since the FSA was passed.

The key to success of this policy will be based on communication to the staff. It is the only way the FSA can live up to its purpose to return many to the community sooner so that they can complete their sentence in a way that respects the law, keeps communities safe and returns citizens who are ready to rejoin society with purpose.

Advocates React

Advocacy groups have routinely cheered on the BOP based on memorandums that tout reform, but later look at results with disappointment. Measured results in cost savings and lower recidivism rates are the key to FSA success.

I reached out to Rabbi Moshe Margaretten, President of Tzedek Association and one of the primary advocates for implementation of the FSA, who told me, “I want to express my deepest admiration and gratitude to the BOP for today’s outstanding announcement. Under the exceptional leadership of Director Marshall, this bold and thoughtful policy marks a watershed moment for meaningful second chances in our country.”

Rabbi Margaretten said that he sees this as the BOP’s clear commitment to fully implementing both the FSA and the Second Chance Act and that the new guidance was done with compassion, clarity, and courage. He also noted, “This is nothing short of inspiring. By stacking eligibility under both statutes, focusing on stable housing instead of outdated employment requirements, and removing artificial barriers to home confinement, this guidance embraces the true intent of the law: helping men and women safely return home and rebuild their lives.”

Leadership Will Make All The Difference

The BOP has struggled to find quality leadership to change the culture and get better results, which explains why the agency reached outside for new leadership. It was Donald Trump who signed the FSA into law in December 2018. During the Biden administration, BOP leadership spoke of milestones implementing the law but fell far short of expectations by holding people in prison longer than the law allowed. They set themselves up for failure by not expanding resources, like halfway houses, to meet the increased demand. In the BOP’s June 2024 report on the FSA it stated that there have been no cost savings associated with the implementation of the law, something that was a cornerstone to the law’s passing. This same statement has been in all previous BOP reports on FSA.

The BOP seems to acknowledge their problems now with Director Marshall in charge. The BOP’s press release stated, “This clarification reflects the Bureau’s commitment to both the letter and the spirit of the First Step Act and Second Chance Act. By maximizing both authorities where appropriate, we are expanding opportunities for successful reentry while maintaining our commitment to public safety. As indicated previously, this directive is rooted in the principle of smart, fair criminal justice reform—reform that began when President Donald J. Trump disrupted entrenched political paralysis and signed the FSA into law, delivering the most significant overhaul to the federal justice system in a generation.”

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.