A BOP press release is causing quite a stir in the advocacy world. Some individuals with influential voices are heralding it as a change that will free many more people via early, supervised release. “Halfway house bed space is NO LONGER an excuse,” crowed one person on Facebook. “If someone qualifies for [halfway house] or home confinement, they should be placed—period.” But there are lots of reasons to be skeptical. 

I can’t say that I blame lay people for their lack of caution, given the triumphalist wording of the press release: “This is the dawn of a new era, one in which the Bureau of Prisons will realize the full potential of the First Step Act (FSA) and Second Chance Act (SCA)…” Specifically, the release stated that SCA benefits and FSA earned-time credits “will be treated as cumulative and stackable.” 

The wording sounds like eligible individuals could get transferred to the community a year earlier than their release date under the SCA (although it has always been discretionary) and another year with the accumulation of FSA time credits. But not so fast. An internal memorandum disseminated by the new BOP director on May 28 states that due to statutory limitations in the SCA, individuals who earn the full 365 days of early release available under the FSA cannot get more than 12 months of community placement (RRC or home confinement). Perhaps the press release simply fails to say that while benefits under the two acts can only be stacked up to a year. 

First Step Act confusion is one of the more exploited issues in the predatory consulting world. Too many people fall for Google ads or Facebook postings implying that the sponsor can get a loved one out of prison early in return for thousands of dollars.  FSA is also misunderstood in the legal community. 

The reality:  Aside from the early days following the passage of the FSA, very few people who were serving a lengthy sentence have been awarded SCA time stacked on top of earned FSA pre-release credits. In addition to the claimed statutory limitation, there is simply insufficient bed capacity in residential reentry centers (halfway houses) and contract limitations on the staff and equipment required to place more people in home detention. The underfunding crisis developed quickly following implementation of the FSA. (The same shortfall occurred in 2008 after the enactment of the SCA, which is one reason why the potential of a full year of community release was elusive before the FSA.) 

With the significant budget deficits and cuts that are in the news, I’d like to know how or where the BOP would obtain the funding to pay private contractors to exceed their pre-set quotas. In fact, the BOP has not been able to place people in RRCs or home confinement even for the time earned under the FSA! And recently, DC’s District Court rejected the argument by the ACLU and its partners that “shall means shall,” ruling instead that the FSA does not compel the BOP to transfer every prisoner to community release on the date of their eligibility.

“Section 3632(d)(4)(C) [of the FSA] is best read as a directive that identifies what group of prisoners the BOP must transfer into prerelease custody, not as establishing an immutable date by which the BOP must effectuate individual transfers,” the judge ruled.

So, unless the ACLU team appeals and wins, or there are other favorable circuit court decisions, I guess “shall” doesn’t mean shall anymore!

A review: It takes about 27 months in prison before an FSA-eligible person begins to earn credits toward a year of early release. Those credits ordinarily accumulate at the rate of 15 days a month, which requires over two additional years to get to the maximum 365. So, that’s 27 months, plus 24 months to hit the statutory maximum community placement under the SCA, as stated in the director’s internal memorandum.

The broader, systemic issue that no one is paying attention to is this: People ineligible for FSA credits due to the nature of their charge and who are most in need of community transition  are getting shorter RRC placements because there is a shortage of beds, since they are occupied by lower-risk FSA-eligible individuals.  

Readers who have followed my monthly Sentencing Partner articles for the past 10 years know that changes in policy are required to be disseminated as “Change Notices,” according to the BOP’s own policy on directives management. Governing by internal memo or press release lacks rigor and transparency and leads to inconsistency, confusion and exploitation.  

Another issue flying under the radar is the fact that once sent into the community, people are not continuing to earn time credits under the FSA. That’s because once a person is transferred to an RRC or HC, there is no way to apply the credits because they are already in the community. Since the BOP is already using its discretion to apply the first 365 credits toward early supervised release, it could also front load all projected credits so they could transition into the community even sooner.

Being a federal prison junkie, I keep a close eye out for any new reports from the DOJ-IG, GAO or the BOP itself. And with each one, I shake my head in disappointment because too often, what the BOP, or even the DOJ, reports obscures the “reality on the ground.”  For the most part, the authors are not being intentionally misleading; instead, these instances mostly stem from a misunderstanding of what is really happening in our federal prisons.

For example, consider the DOJ’s FY ‘24 performance budget submission for the BOP to Congress. It falsely assumes that the BOP complies with its policy on the safe, secure and humane housing of AICs, which calls for no more than 50% of cells to be double-bunked in medium-security facilities and a cap of 25% in high-security penitentiaries. But the reality is that that virtually all the cells in these prisons now have two occupants. Some context: Older prisons were designed for only one resident. (Note that although the DOJ has said it believes the presence of a cellmate prevents suicides, AICs will tell you that the risk of assaults and homicides goes up.) However, at the beginning of the “tough on crime” era (specifically the abolition of parole via the Sentencing Reform Act of 1984), the BOP began to use double and triple bunks to accommodate the growing influx of prisoners. I vividly remember management repeatedly describing the excessive crowding as “temporary.” Over the years, however, a new normal was born and it is no longer questioned. A similar situation exists with staffing. The BOP intentionally limited staffing to less than 100% of requirements, due partly to warden’s incentives to keep costs down, and that lower percentage now has become the new norm, as if prisons can operate effectively with a reduced complement of staff. 

Another example is the FY 2025 performance budget submission. It states that “all sentenced adults in custody in federal correctional institutions are required to work (except for those who, for security or medical reasons, are unable to do so).  Most adults in custody are assigned to an institution job such as food service worker, orderly, painter, warehouse worker or groundskeeper.” On paper (or rather, on the computer), that is true; everyone is assigned a job. But many AICs don’t actually work, and thus they don’t receive even the paltry “maintenance pay” (and for which prisons receive funding). The idle time, like crowding, creates unsafe environments and fails to equip incarcerated individuals with reentry skills. In addition, the lack of income that can be used for commissary purchases leads many AICs to hustle for money in other, more destructive ways, such as gambling, drug smuggling and the operation of illicit stores within units. 

And then there are the descriptions of services, in that same report, that are more aspirational than fact. A good example is the agency’s claim to offer a comprehensive reentry-preparation program, including “classes in resume writing, job seeking and job retention skills.  It also includes presentations by officials from community-based organizations that help with employment and training opportunities after release from prison.” However, if you talk to incarcerated individuals themselves, you’ll often hear that only a couple of classes are offered, the programming is superficial or antiquated, or the services can’t be accessed due to long waiting lists. The DOJ has publicly and repeatedly identified deficiencies in reentry programming since the 1990s, which should give us pause about whether calling for more department oversight is an effective call to action. 

It’s worth noting that in the same 2025 performance submission, the DOJ said, “Incentives have been expanded under the First Step Act, and when adults in custody complete a recommended EBRR program in an identified need area, they may earn additional phone minutes, a monetary incentive award, incentive event, transfer nearer to home, preferred housing or additional visitation.” Yet it is unclear which of these incentives, if any, have been implemented. Just this month, the BOP announced that phone minutes for AICs are now capped at 300 – well under the 810 promised to eligible individuals in the FSA.

This is, in part, why PERA was established: to help stakeholders discern the myths from the realities of what is happening in our federal prisons – thus informing legislation, regulations and advocacy to achieve better outcomes for AICs.