Courts Challenge BOP’s Interpretation of First Step Act

The BOP is violating Congress’ mandate under the First Step Act (FSA) by failing to transfer AICs to their home community when they have earned enough credits to do so. However, relief may be at hand. I’m hoping that the Supreme Court’s Relentless v. Department of Commerce decision, which overruled the Chevron doctrine and negates the ability of federal agencies like the Bureau of Prisons to interpret statutes, will give incarcerated people some traction before judges. 

The BOP’s inability to honor the FSA requirements was documented in a recent court case, Alphonso Woodley v. Warden, USP Leavenworth, Civ. No. 24-3053 (D. Kansas, May 15). The judge found that the BOP’s failure to transfer the petitioner to prerelease custody upon his eligibility “violates federal law” and ordered the BOP to act within 30 days. (The case was also interesting because Woodley had not completed the administrative remedy process.) 

Since early 2023, AICs around the country have been telling me that they are not being transferred to the community despite earning enough credits under the FSA. The BOP claims that halfway house bed space is insufficient, and that home detention is often not feasible. 

I’ll break this response down from a system and policy perspective, then put it in the context of both the FSA and the Second Chance Act (SCA) of 2007.  

First, Congress did not properly fund a buildout of the residential reentry center/home detention (RRC/HD) infrastructure when it expanded community placement with the creation of First Step Act credits. A union official told me just yesterday that Congress knew there was a funding problem when it passed the FSA in 2018. A similar funding gap resulted when Congress extended RRC placement from six to 12 months with the SCA. Bed space capacity was exceeded not long after the SCA was passed. 

Second, there has always been a widespread misunderstanding about the SCA. Contrary to popular perception, it does not mandate placement in an RRC. While Congress intended to increase RRC placement from six to 12 months, the only statutory requirement was to place eligible individuals in pre-release “programs” – which includes the BOP’s in-custody Release Preparation Program. The FSA was drafted to fix this deficiency in the SCA and thus limit the BOP’s discretion (and send more individuals back to their communities). While RRC placement under the SCA is still discretionary, the FSA (and the BOP’s corresponding policy) is crystal clear that the mandated community placement under the FSA is in addition to any SCA placement recommendation: 

“The RRC and/or HC recommendation will include the total number of days recommended based on the five-factor review (see 18 U.S.C. § 3621(b)), required under the Second Chance Act, plus the remaining number of FTC days not applied to supervised release at the time of the referral.” BOP Program Statement No. 5410.01, First Step Act of 2018-Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4), p. 16. 

The Relentless case makes clear that the BOP must comply with the law as it is written and can no longer get away with withholding earned pre-release credits or refusing additional SCA time. 

This brings me to the changes the BOP must make. The lack of halfway house beds cannot be resolved with more home detention. The BOP contract process sets quotas for both RRC placement and home detention, so the latter is also finite. Currently, the BOP’s Home Confinement Directive, Program Statement No. 7320.01, lists the following eligibility criteria for home detention:

1. No public safety factors.
2. Excellent institutional adjustment.
3. A stable residence with a supportive family.
4. Confirmed employment (if employable).
5. Little or no need for the services of a CCC (community corrections center, now known as RRCs).

This policy and the foundational program statement, No. 7310.04, “CCC Utilization and Transfer Procedures,” both of which preceded the Second Chance Act, are in serious need of revision to allow more direct home placements and update other information based on the changes in both the SCA and FSA.  [You should be aware that your unit team should start the RRC/HD placement process about 19 months in advance!]

One other important consideration: The lack of halfway house bed space is a grave disservice to the people who need transitional placement the most. Individuals who have spent the most time in high-security environments must compete for beds with people who have minimum and low recidivism risk assessments and don’t need transition into the community via an RRC. Every internal BOP memo on RRC placement and broader guidance from the DOJ’s deputy attorney general and IG state that higher-risk people should receive the longest transitional placement. The BOP must rethink who is prioritized for an RRC bed.