The First Step Act ushered in much needed change to reduce our federal prison population and reduce recidivism. It allows federal prisoners the opportunity to both reduce their sentence and increase the amount of time that they can spend in the community, known as prerelease custody. Far from being free, prerelease custody halfway houses provide a much needed resource to assist prisoners reentering society as productive members while also providing some supervision. Halfway houses are meant to provide the opportunity for prisoners to spend a portion of their sentence in the community so they can earn funds to get back on their feet.
Allowing prisoners to work in the community dates back in the United States to the time of the Civil War where southern states struggled to repair damaged infrastructure. Having a place to even put prisoners at the time was especially challenging, as most prisons had been destroyed during the war. Initially, some states paid private contractors to house and feed the prisoners. Within a few years states realized they could lease out their prisoners to local planters or industrialists who paid minimal rates for the workers and were responsible for their housing and feeding. Alabama became the last state in the nation to outlaw the practice of prisoner leasing in 1928, over 60 years after the practice began.
In 1967, Correctional Research Associates published the “Community Work and Alternative to Imprisonment” as a result of the then-recently passed federal law Prisoner Rehabilitation Act of 1965. Then, it was envisioned that many of those who would be allowed to serve out a portion of their sentence in the community could find meaningful work and recover from their past criminal life. The published paper also noted that there were those who did not need incarceration by stating that as “... a practical matter a gangster or other professional criminal is ordinarily not sentenced to imprisonment with any significant intent that he will be "corrected" or "rehabilitated." Rarely does the typical "white collar" offender need any of the rehabilitation services which a correctional system may offer and his commitment, more often than not, is a reflection of public policy.” However, times have changed.
White collar crimes and other non-violent offenses in the federal criminal justice system can carry long prison terms. Look at the case of Sam Bankman-Fried who is serving a 25 years sentence or Elizabeth Holmes who is in prison for over 11 years. Prior to the First Step Act, many minimum security prisoners were passed over for long halfway house stays in favor of those prisoners who had much longer sentences and who needed supervision because of their criminal past. Now, First Step Act is going to change what the population at halfway houses will look like in the coming years.
One aspect of the First Step Act allows for prisoners, again many of whom are minimum security, to earn credits by participating in programming and productive activities. Each month an eligible prisoner can earn up to 15 days/month off their sentence up to a maximum of one year. Beyond that, there is no limit to how many credits someone can earn and those with long sentences can earn many months or years in halfway houses. The pressure of this group of prisoners is being felt by the Bureau of Prisons (BOP) who are now filling halfway houses with many who do not necessarily need the services offered there, namely a roof over their head. Speaking with many prisoners who are in the halfway house they tell me how much they appreciate being away from institutional living but also think they could be supervised at home by the halfway house rather than live there.
I discussed this with Hugh Hurwitz, retired Acting-Director of the BOP and was involved in the initial rollout of First Step Act, and we collaborated on an opinion piece that recently appeared in the Atlanta Journal-Constitution. Despite repeated attempts to increase their halfway house capacity, BOP has made only incremental increases to their capacity since the First Step Act passed in December 2018.
The BOP’s Office of Public Affairs reports that “on January 1, 2019, the BOP contracted for 10,408 residential beds in halfway houses. As of September 23, 2024, the BOP is contracted for 10,553 residential beds in halfway houses.” The BOP is now telling some halfway house providers, all private or non-profit entities, that they are cancelling some solicitations for additional capacity because of “budgetary and staffing considerations.” BOP receives over $400M annually to implement the First Step Act.
It has taken time to get to this place. Prisoners are now only earning sufficient time credits to be eligible for significant time placement in prerelease custody as a result of First Step Act credits. Many prisoners and their family 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 then in the community.
BOP is limited in their ability to house prisoners in halfway houses by the number of halfway house and home confinement “beds” under contract. BOP reports that “as of September 23, 2024, BOP is contracted for 10,553 residential beds in halfway houses. Of those, 8,665 are filled, and 1,888 are available. For home confinement, BOP is contracted for 3,900 participants and has 4,659 participants.” So, it appears BOP is over capacity in home confinement and only at 82% capacity in their halfway house beds. BOP notes that “many of the unfilled beds in an halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement.”
However, a short survey of BOP’s halfway house providers, confirms that they are operating well below their maximum capacity. Many BOP halfway houses have unused capacity, including those in highly desirable locations. Some of this is under contract with BOP and some is not. For example, one halfway house provider that we spoke to wished to remain anonymous but they are operating at 89% of their contracted capacity, but still has hundreds of available beds in much needed locations not under contract. BOP could look to modify those existing contracts to increase the number of beds available.
Hurwitz and I discussed how the BOP might now have to prioritize the use of this limited resource to meet the requirements of First Step Act. We propose a three-tiered halfway house placement process for BOP to follow that will allow transparency and fairness to the extent possible under the law. The first tier for consideration for placement in prerelease custody are those that have earned time credits under the First Step Act. If they fill all the halfway house and home confinement beds, then the assessment stops here.
If capacity still exists after these prisoners are placed, then BOP should look to the second tier – those not eligible for the First Step Act but are eligible under the Second Chance Act (SCA), signed into law by George W. Bush. The SCA allows for prerelease custody up to one year (including the lesser of a maximum of 6 months or 10% of the sentence in home confinement). The SCA predates the First Step Act and was the only mechanism for prerelease custody for BOP prisoners until the First Step Act passed. Under this tier, these prisoners are not eligible for First Step Act time credits due to their recidivism risk and/or their sentence was excluded under the First Step Act. These prisoners are more likely to need placement in prerelease custody as they are generally of a higher risk of recidivism and need the resources that community transitional programming provides.
To the extent that BOP has any capacity left, they then would look at tier three. These are those people that have earned First Step Act time credits and are also eligible for time under the SCA. BOP calls this “stacking” (First Step Act plus SCA time). The laws allow this, and BOP has stated that they are seeking to stack.
It is likely that the halfway house capacity issue is not going away anytime soon. However, the savings of placing someone in the community sooner is a benefit to the taxpayer and it helps the prisoner get back to a meaningful role in society. The First Step Act is a law that is meant to save money and the only way to do that is to both reduce sentences and send prisoners back into the community sooner. President Trump, who signed the First Step Act into law, will want cost savings and he is certainly not shy about using private contractors to solve government problems. Halfway houses, even under President Biden, welcomed the use of private prison companies to do the job of community custody. It sure looks like they may get another chance under Trump.
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