The Federal Bureau of Prisons (BOP) represents the largest component of the entire Department of Justice with a budget of $8.3 billion. Like other federal agencies, each year BOP requests funding and there is plenty of reasons for them to ask for more.
The BOP operates 122 federal prison complexes across the country, many are more than 30 years old. The facilities are used 24/7/365 and many are now in need of repair to the tune of$3 billion. Each year, the BOP is given only a fraction of that amount so each year the prison infrastructure crumbles a bit more.
Then there are staffing issues. The BOP Director Colette Peters has informed Congress that the agency has a staffing crisis. Director Peters addressed this earlier this year on CBS’s60 Minutes when interviewed about the challenges the BOP faces. In total, the BOP needs over 3,500 corrections officers and nearly 3,000 medical / mental health professionals. It is a monumental task.
To help the BOP, Congress passed the First Step Act in 2018 with a goal of cost savings by having prisoners take classes to earn reductions in their sentence and to earn additional credits that would allow them to serve a larger part of their sentence in prerelease custody (halfway houses and home confinement). The BOP has acknowledged in its annual update on First Step Act that it has yet to realize any savings from the program even though thousands of prisoners have been released earlier than they would have without the first Step Act.
There are beginning to be signs of progress in cost saving but not enough to offset the costs of the programs themselves. According to the BOP, the overall minimum security population has decreased by 17.5% during 2021 and 2022 while the overall prison population increased. This is significant because minimum security prisons are among the most expensive to operate.
Congress understood the issues the BOP was facing and the general mood of the country when it comes to incarceration. The First Step Act was meant to provide a tool to the BOP that would reduce costs of incarceration by sending people to types of supervision, preferably in the community, rather than relying on the crumbling institutions. However, in speaking with a number of people in prison, they tell me that their time in prison could be cut shorter if the BOP took advantage of the tools give to it under First Step Act.
The First Step Act allows prisoners to take up to a year off of the imposed sentence and allows prisoners the ability to earn unlimited amounts of time in prerelease custody toward the end of their sentence. The least costly and least restrictive type of confinement is home confinement. It was hoped that First Step Act would put more people in home confinement and for longer periods of time. However, the BOP’s current interpretation of its use of home confinement under the First Step continues to cause confusion.
The Second Chance Act (SCA), signed into law by President George W. Bush, was the first meaningful legislation to allow prisoners to serve part of their sentence in the community, up to a year. The SCA became the standard with many prisoners receiving months in a halfway house at the end of their sentence. There was also a provision in SCA to allow a prisoner to serve the last 10% of the imposed sentence, capped at 6 months, in home confinement. The home confinement monitoring was done by the halfway houses who conduct visits to the home, make calls to assure the person is at home during curfew and to monitor their movement during the day (e.g. make sure the person is at work).
The First Step Act built on SCA. While the First Step Act allows prisoners to reduce their sentence by up to a year, a provision also allows them to earn credits above that toward prerelease custody. In the BOP’s annual First Step Act report, BOP states “[prisoners] shall earn time credits to be applied toward prerelease custody (i.e., transfer to a Residential Reentry Center or home confinement for service of a portion of the individual’s sentence). This simple reading seems to imply that the BOP could allow use of the First Step Act credits for either residential reentry center (halfway house) or home confinement.
The use of home confinement is imperative in lowering costs of incarceration and the BOP is not maximizing that. First, many of the prisoners transferring to prerelease custody under the First Step Act represent mostly minimum security prisoners who have the lowest propensity for violence and recidivism. This population needs the least amount of supervision and usually does not require the use of many of resources at a BOP halfway house (such as food and shelter). Those with much longer sentences and fewer assets, like a home or a car, will need to rely on halfway houses and those are going to be more and more occupied by those who are least likely to need the services offered. Those mostly minimum security prisoners, would be best to place on home confinement rather than taking up a bed at a halfway house.
What is happening now is that the BOP has updated its calculations so that it can anticipate actions around when a person is leaving prison. One of the those calculation is stated as being when a person is eligible for home confinement. The BOP is using the SCA to determine that date of home confinement which is simply 10% of the sentence imposed (up to a maximum of 6 months) from the date the person is to leave the BOP. However, for those who have longer sentences, over 8 years, those prisoners earn a considerable amount of First Step Act credits toward prerelease custody that, according to the law, can be either halfway house or home confinement. What this means is that someone with over a year of First Step Act credits toward prerelease custody is being told to stay in a halfway house until the home confinement eligibility date, which can be months after the person arrives at the halfway house, and in some cases years.
Prisoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.
I reviewed a voucher for payment for a halfway house in Virginia. The cost it charged to the BOP for a prisoner who stayed at the halfway house was $83.95/day. It charged $41.98/day for those on home confinement, about half the cost of halfway house. Yet, the BOP still holds people in these halfway houses longer than necessary and are using the SCA with its provision of the last 10% of the sentence as rationale for doing so. Even the BOP agrees that long term living in halfway houses by those who are minimum security poses recidivism risks.
The First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement. The agencies interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.
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