January 16, 2024
The Federal Bureau of Prisons (BOP) has been sending prisoners to halfway houses for decades to complete the final phase of their prison term. George W. Bush signed the Second Chance Act in 2007, allowing prisoners to serve up to 12 months of their imposed sentence at a halfway house, either living at the facility or monitored on home confinement. This is known as prerelease custody.
Halfway houses used by the BOP are contracted facilities in the community. Most are run by nonprofit organizations such as Goodwill but the BOP has oversight over the contracts and the rules associated with prisoner behavior. When disciplinary infractions occur at the halfway house, the result could mean returning the prisoner to a federal institution to complete the prison term.
Halfway houses have become more important to the BOP. President Donald Trump’s First Step Act, signed into law in December 2018, allowed federal prisoners, mostly minimum security level, to earn credits to both reduce their sentence by up to a year, but also earn credits toward home confinement. For many prisoners it meant the opportunity to leave the prison institution sooner and start to rebuild their life as productive citizens. For taxpayers, it meant reducing the skyrocketing costs of institutional incarceration. According to the last Department of Justice’s First Step Act Annual Report in 2023, “BOP has no cost savings to report based on early transfer to prerelease custody at this time.” The primary reason was that it was playing catch up from the Final Rule from the Federal Register which came out in January 2022 that provided a more definitive statement on what exactly prisoners could expect in the form of a sentence reduction.
According to that same First Step Annual Report, for those released from an institution to a halfway house, the BOP is no longer responsible for the costs specific to an individual inmate such as individual medical care, food, clothing, and other amenities, and it therefore expects to realize significant cost savings from the transfer of individuals to supervised release. That said, since the BOP has not yet closed any institutions as a result of the First Step Act, it is still responsible for certain fixed costs necessary to operate our institutions. The bottom line is that people are being housed in prisons longer than most expected and certainly longer than Congress had intended when they passed the law.
Initially the problems with releasing prisoners came from the BOP’s inability to come up with a calculation that allowed prisoners to earn up to 15 days off for each month of productive programming. Then other problems cropped up when the BOP changed the rules regarding how the credits were to be earned. Those have since been mostly fixed but now the one remaining problem is that 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.
The solutions are not easy. Zoning for halfway houses is difficult. One example is that the BOP has been trying to open a halfway house in Hawaii for years but they have been unsuccessful. A new halfway house is expected to open soon in Washington DC but that has seen numerous delays and still remains off line. Dana DiGiacomo is the Administrator of the Residential Reentry Management Branch for the BOP and spoke at the American Corrections Association meeting in Maryland on January 4, 2024 stating, that halfway houses had a “… 90 day projection of 99% utilization,” meaning that there was no room to place any more prisoners.
Prisoners who have earned their First Step Act credits are staying in prisons longer than necessary and longer than the law allows. The law states under 18 U.S. Code § 3624 – Release of a prisoner Section 11(g) Prerelease custody capacity, “The Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” [emphasis added] That law is not being met for many prisoners who have met the requirements for First Step Act, some of whom can serve years of their sentence on home confinement. This is a problem that is going to persist unless something is done.
The BOP has had 5 years to bring halfway house capacity on line since the signing of the First Step Act, which everyone knew would increase demand for halfway space. One initiative the BOP did years before the First Step Act was try to work with U.S. Probation on Federal Location Monitoring (FLM) to allow some minimum security prisoners to be monitored on home confinement by U.S. Probation rather than halfway houses. This has been and continues to be an underutilized resource. DiGaicomo stated that of over 5,000 prisoners on home confinement (as of January 4, 2024) only 182 (3.6%) were in FLM.
In December 2010, a revised Interagency Agreement between the Administrative Office of the U.S. Courts-Office of Probation and Pretrial Services and the BOP presented 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.
Before December 2010, BOP referred only prisoners who had previously been rejected by the halfway houses, often due to significant risk factors or medical reasons. Not surprisingly, U.S. probation officers were reluctant to accept supervision of these prisoners because of the resources required to monitor. During Fiscal Year 2009, FLM averaged 90 prisoners with approximately 20 districts out of 94 participating. The 2010 Interagency Agreement was meant to target primarily minimum-security prisoners, an easier group to monitor. In 2010, BOP estimated that 6,500 prisoners releasing in FY 2011 could meet the eligibility requirements with an average stay of 122 days. The BOP population is down from 201o but still thousands could participate in FLM.
Use of FLM is cost-effective. The average daily cost for supervising a BOP prisoner on FLM is far less than a per diem cost of a halfway house or even home detention monitored by a halfway house. Even in 2010, the BOP acknowledged that halfway house space was limited, just as it is today. FLM does not require building new facilities, zoning approval and most prisoners have to pay for the monitoring devices (ankle bracelet, GPS monitoring or modified cell phone).
Carl Bailey, BOP Office of Public Affairs provided a statement that stated the FLM program provides a cost-effective alternative for individuals whom the BOP and the servicing United States Probation Office (USPO) mutually determine require fewer services than those who are placed in residential reentry centers (RRCs – Halfway Houses) and who have a stable residential plan. Individuals in this program remain in the custody of the BOP and are monitored by a USPO at an approved residence. They are not required to report to an RRC for monitoring.
Older prisoners, many of whom are not wanted at halfway houses because of their health needs, are staying in institutions far too long as a result of not having more FLM capacity. Older prisoners have also lost one of the BOP programs, Elderly Offender Pilot Program, which expired in fall 2023, that allowed them to go to home confinement for the last 33% of their sentence. Those prisoners who have earned their First Step Act are also staying in prison longer than the law states. Having no capacity to monitor them outside of a prison institution is not only unfair to prisoners but a heavy cost to taxpayers who expected more from the First Step Act.
The problem with FLM is that it is managed by each Judicial District and some Districts open them up to BOP and others do not. This is a Court issue not just a BOP one. As a retired BOP executive told me, “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.”