First Step Act Archives

The dialogue that didn’t happen at the House Appropriations BOP hearing

Pam Bailey on March 20, 2025

Among the primary channels for independent oversight of the federal Bureau of Prisons are the House and Senate Judiciary and Appropriations committees. And yet the hearings held by these bodies are too often “dog-and-pony shows”—featuring questions that often miss the issues that most need examination, followed by BOP responses that omit or obscure the full truth. What’s needed is for committee staffers to consult in advance with an organization like PERA, which can identify issues that need exposure, as well as how to word the questions, then provide real-time analysis of BOP responses and suggested follow-up questions.

A case in point is the recent BOP oversight hearing held by the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies. Here are our thoughts on questions that missed the mark or weren’t asked, along with responses that hid more than they revealed:

Plans for a new prison

Republican Chair Hal Rogers from Kentucky predictably promoted the planned construction of a new federal prison in his state’s Letcher County. Given that so much of the rest of the hearing focused on the BOP’s struggle to recruit and retain staff (Deputy Director Kathleen Toomey cited more than 4,000 vacant positions across all its facilities) and maintain its buildings (there’s a $3 billion modernization and repair backlog!), it’s hard to understand how he can justify another prison. (Toomey: “Currently, more than 4,000 beds are unusable due to dangerous conditions like leaking or failing roofs, mold, asbestos or lead. That’s the equivalent of two to three entire prisons.”)

To justify a new prison, Rogers cited “a rise in inmate numbers” that “demands a careful assessment of whether the BOP has the infrastructure…to manage this growth while maintaining safety and rehabilitation.” What he does not know or did not divulge is that the agency is incarcerating 64,000 fewer people today than in 2013 (155,000 vs. 219,000).

Likewise, the Letcher County location is like most other federal institutions – in the middle of nowhere and thus don’t facilitate family visitation and do not attract qualified workers.

The BOP’s staffing shortage

In her opening comments, Toomey elaborated on the large number of vacancies the BOP has yet to fill, saying that salary incentives have been most effective – totaling $229 million in fiscal year 2024. However, due to current push to cut costs, she acknowledged that this tactic is not sustainable. What is needed, yet no one asked about, is a deeper analysis of non-pay dynamics that affect job satisfaction. Likewise, an expanded, creative use of university interns would be an option; and once in the door, many stay.

When it comes to cost cutting, the BOP should be pushed for details and challenged on its choices. For example, Toomey reported that the BOP has reduced its operating budgets across the board by 20% and paused employee training. But instead of the DOGE-style “chainsaw” approach, the BOP should first look at its top-heavy bureaucracy.

While there is indeed a critical shortage of correctional officers and medical professionals, overall, the BOP is actually up in staff since 2005: The bureau employed 32,735 staff in 2005. In contrast, as of May 30, 2024, the BOP reported 35,827 employees and 3,827 vacant positions. That’s 3,000+ more staff than in 2005. What should be cut, as we said in a recent blog post, is headquarters staff (with 10 divisions) and the six regional offices.

Another possible cost-saving solution is a shift away from designating most BOP staff members as law enforcement personnel. This would have two beneficial effects: It would save money by altering the benefit structure, including pensions and retirement age, as well as curb the practice of “augmentation,” in which even these professionals are expected to be correctional officers when there is a shortage. Requiring someone who wants to be and is trained as a teacher, social worker or case manager to search cells, etc. is antithetical to a mission of rehabilitation.

What should not be cut are items like the injections that had been used as the primary therapeutic intervention in the BOP’s medication-assisted treatment program for drug addiction. The injections of naltrexone or buprenorphine had long been preferred over oral treatments in the prison setting due to the greatly reduced risk of diversion. However, a switch to oral strips was recently mandated to cut costs. Toomey obliquely referred to this cut in her testimony, yet none of the congressmembers present questioned it.

And then there are some short-term additional expenses that would both alleviate shortages and improve some longstanding deficiencies in the care of adults in custody. For example, it would be worth the minimal extra cost to equip inmates’ currently “dumb” tablets with the functionality needed for video visits and interactive educational programs. Since the shortage of COs have led to an unacceptable frequency of lockdowns, allowing video visits with family, email from inside cells and online educational programming would mitigate some of the negative consequences. In addition, fewer educational staff would be needed. Instead, as of today, the tablets offer only pay-per-view mindless entertainment.

Another example is the scheduling of medical exams and procedures that must be performed by outside specialists. One of the most common complaints we hear from both AICs and family members is tests and procedures that take months to happen. Toomey noted that a portion of the significant overtime paid to COs is caused by the need for officers (often three at a time) to take inmates to the outside hospitals, etc. When those personnel are not available, the trips simply do not take place – leading to cases like one individual we know of who didn’t get a prostate biopsy for nine months after his PSA levels signaled trouble. But there is another solution that could save money in the long run: more mobile units that offer more services, bringing outside medical care directly to the prison. (During its inspection of FMC Devens – a hospital facility! – earlier this year, the OIG found that exams were on average 53 days overdue, due in part to a lack of COs to escort inmates to scheduled appointments.)

First Step Act implementation

When questioned about the BOP’s notoriously troubled First Step Act (FSA) implementation, Toomey touted the “good news” that “last year, we created some dedicated positions, and we were able to almost double that number from about 350 to about 700.”

The committee members allowed her statement to stand, so we must assume that they aren’t hearing from many inmates like we do, describing the long waiting lists and “ghost” programs (existing only on paper). For example, this was a prominent issue at FCI Dublin, closed after it became known as the “rape club.” It’s a chronic problem within the BOP; when the Second Chance Act was passed in 2007, the required reentry affairs positions were filled by simply renaming existing jobs.

Assertions that can’t be challenged

And then there are statements like Rep. John Carter’s (“There’s been a notable rise in violent instances within federal facilities, particularly against correctional officers”) that Toomey let stand and cannot be challenged because the BOP still has not republished hundreds of policies and forms, saying “this content is temporarily unavailable as we implement the executive order on ‘Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.’” Other pages have “dead links,” like this one that offers data on assaults in prison, both by AICs and staff.

As the old saying goes, “democracy dies in the darkness.”

BOP reports: Read Between the Lines

Jack Donson on January 8, 2025

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.

Change in Phone Policy Creates Chaos

Pam Bailey on January 3, 2025

Last-minute and confusing communication by the federal Bureau of Prisons (BOP) and its facility-level staff members is stoking rumors and fueling anxiety among incarcerated individuals and their family members.

In October, the BOP issued a public announcement indicating that adults in custody (AICs) would no longer be able to make up to 510 minutes of free phone calls each month, beginning in 2025. Instead, it said, only AICs who are at least on a waiting list for one of its “evidence-based recidivism-reduction” (EBRR) programs would be able to make calls for free – and only up to 300 minutes per month (and no more than 30 minutes per day). This, even though the First Step Act of 2018 authorizes the BOP to award up to 510 additional phone minutes to individuals participating in programming, over and above the 300 minutes everyone received prior to the COVID pandemic (during which all AICs were allocated 510 free minutes, since personal visits weren’t possible).

In the three days leading up to the new year, the BOP finally got around to informing AICs in every prison of this new policy, and chaos has ensued. We began to receive a torrent of confused emails from AICs, and Facebook groups of family members are abuzz.

“The BOP has decided to make its own rules once again,” wrote one prisoner. “And it’s contrary to the First Step Act, the law of the land. Three hundred minutes is what everyone got before the FSA. One of the incentives for recommended programming that was supposed to be offered is more minutes – an additional 510. If the BOP is concerned about budget, wouldn’t it want to do that, then charge for it? This is ripe for litigation.”

Phone calls are the backbone of AICs’ connection to family and friends; visits are expensive and mail is often unpredictable and slow. Three hundred minutes is only 20 15-minute calls a month – less than one per day. “I have 10 children I communicate with and a multitude of family and friends I communicate with!” says one AIC. The co-founder of More Than Our Crimes must make many calls to help run the nonprofit organization. In addition, he is housed at USP Coleman 1, a facility that was locked down about three-quarters of 2024. The 30-minute daily limit on calls is particularly punitive.

“This ‘incentive’ feels like a straight-up punishment,” says Christopher Cobb, from FCI Atlanta.

In addition, individuals inside the prisons say they are receiving a variety of conflicting information, much of it wrong, according to what we’ve been told by the BOP itself:

USP Atwater (CA): “The warden made an announcement saying that although we can only get 300 minutes free now (if are in a program or on a wait list and are on the ‘refuse’ list for paying fines and restitution), we can pay for another 210 minutes.” This is incorrect. The BOP says the limit is 300 minutes, and it is “exploring” an expansion to allow another 210 minutes, at the AIC’s expense.

USP Victorville (CA): “Two memos have been posted on our electronic bulletin: one from the captain and one from the Trulincs [email) supervisor. But they differ: One says 300 free minutes for those signed up for FSA classes, and the other says everybody will get 300 free minutes, and FSA enrollees will get an additional 210.” The second memo is incorrect.

FCI Sheridan (OR): “Here they are saying that if you aren’t FSA-eligible, you do not receive any free calls.” The trick here is what is meant by “FSA-eligible.” AICs do not need to be eligible for FSA time-off credits to receive the free minutes. They merely need to be on the wait list for an approved program (a status that is reviewed monthly).

FCI Hazelton (WV): “What if you already have done a multitude of FSA programs and can’t do any now? There aren’t any waiting list for eligible programs here.” It is relatively easy to get on a waiting list at most prisons, but we can imagine that isn’t true everywhere, and the BOP bulletins do not address that situation. For example, to be accepted into an EBRR program, an AIC typically must be marked as in need of at least one of the 13 skills (such as anger management and parenting) in the SPARC -13 assessment. It’s possible a person could be assessed as not in need.

FCI Fairton (NJ): “Once you complete your 30 minutes of free phone time here, you can’t talk anymore even if you are willing to pay.” This is not how it’s supposed to be operating, from our understanding. The 30-minute limit per day is for free calls.

FCI Loretto (PA): “They posted a chart here showing that if you have to call internationally, the cost varies by country.” Our reading of the July FCC ruling is that international calls also are subject to the 6-cent-per-minute cap. However, we are seeking to confirm that.

Another important observation: If a call is not free, family members may pay instead via an account with ICSolutions. However, when we contacted them, the operator had no knowledge of the FCC ruling (which states the agency intended to reduce costs for AICs as well as their family members) and listed per-minute costs much higher than 6 cents for even domestic calls. On the other hand, there is an advantage to paying for calls through the outside service. A proposed rule from the BOP would authorize the agency to deduct dollars from AICs’ accounts every month if they owe court-ordered restitution or other fees.

A final note: The free calls do not start until an AIC uses up his or her minutes from the previous cycle. Once an AIC “revalidates,” the free calls kick in. This was not communicated to AICs in advance – another source of confusion!

In previous times, says PERA executive director and former BOP case manager Jack Donson, staff were given talking points in advance when major changes like this were implemented across the BOP, and a townhall meeting was held to make sure everyone was on the same page. Clearly that didn’t happen now. If there was ever a textbook case of another poorly managed aspect of the FSA, this is it. Stay tuned, there will clearly be more updates.

BOP FSA Missteps Continue

Jack Donson on October 22, 2024

In early September, the BOP’s FSA time-credit assessment tool was updated to incorporate future pre-release credits. However, a few days later, BOP case managers were told by the central office to stop sharing the assessments, amid rumors of a “glitch.” I did some calculations using a couple of the new assessments and they were all off substantially. One assessment produced an “FSA conditional placement date” that was two years earlier than the person’s actual eligibility. It’s disturbing that the FSA was passed in 2018, the time-credit application went live in 2022, and yet the government still can’t get it right. Earlier this month, the application was reportedly corrected once again but we are getting reports of case managers refusing to provide copies.

A few things to keep in mind regarding the BOP’s calculation of FSA time credits: An average of 27 months is required for AICs to earn the maximum 365 days of time credits. This advances the projected release date from GCT REL (good conduct time, or 15%) to FSA REL. Be aware that a person’s release date on the BOP website updates monthly but stops when the maximum 365 days of credits are earned. At that point, pre-release credits can be calculated by adding the monthly awards going forward while subtracting the same amount of days from the FSA release date at the back end. The point at which they meet is the FSA conditional placement date (CPD). The CPD is the date when a person can be transferred to an RRC (halfway house) or home detention.

It is very important that pre-release credits are calculated and applied! PERA is supporting the New York ACLU, which is collecting information on cases in which AICs are past their CPD but remain in prison. This issue is not going away.

Meanwhile, on Oct. 4, the BOP published this statement:

The BOP is updating its FSA time credit system to better support AICs as they engage in pre-release planning. Under the FSA, AICs earn time credits for completing approved programs while in custody, which can reduce the time before they are placed in community settings such as Residential Reentry Centers (RRCs) or home confinement.

AICs will now see three key dates in their records to help them plan their release:

FTC conditional placement date: The date when an AIC may be eligible for pre-release placement based on earned FSA time credits.
Second Chance Act (SCA) conditional placement date: The date when an AIC may be eligible for release under the SCA. SCA eligibility requires an individualized assessment and is not guaranteed.
Conditional transition to community date: The earliest possible release date, based on a combination of FTCs and SCA eligibility.

FBOP employees will use these dates to make release decisions, beginning the process 17-19 months before the date for conditional transition to community. For eligible individuals, this could include recommendations for direct home confinement, bypassing RRC placement when appropriate.

It is essential for AICs to continue participating in FTC-earning programs, as any suspension in their participation due to misconduct could delay their release. The FSA conditional release date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.

The BOP will prioritize processing referrals based on placement dates, with unit teams initiating referral packets for pre-release placement at least 12 months, but no later than 60 days, prior to the conditional transition to community date. The Residential Reentry Management Office will work to ensure that AICs are placed in the community according to these recommendations, provided there are adequate resources in the community.

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We’ll be monitoring implementation. Stay tuned.

Confusion over FSA Implementation Continues to Reign Within BOP

Jack Donson on August 27, 2024

BOP Director Colette Peters testified to the House Judiciary Committee in July that the tool developed by the agency to calculate release dates under the First Step Act has been updated to incorporate credits expected to be earned in the future toward transition into a halfway house (residential reentry management centers, or RRCs) or home confinement. However, we’ve checked with a few people inside the federal system and no one we spoke to said that that has happened. Rather, Director Peters likely was referring to the initial 365 days of early release credits available to eligible FSA recipients, over and above the 15% good-conduct credits federal prisoners already receive. What is still missing from the agency’s calculator is the accumulation of future pre-release credits for home confinement or RRCs.

BOP policy is clear that case managers should calculate future FSA credits when they process halfway house referrals. It is not rocket science to add 10 or 15 days for each month until release. Yet the director’s testimony seems to communicate that the BOP views the initial 365-day advancement as a mandate, and release to community detention as discretionary. That thinking has led to the current shortage of RRC beds and a dearth of home detention placement. Don’t forget: FSA pre-release credits are in addition to halfway house placement days awarded according to the five factors outlined in the earlier Second Chance Act. The number of 2241 habeus corpus petitions filed on this issue are at a fever pitch right now as a result, and the ACLU is considering legal action on behalf of people in federal custody.

In the BOP’s defense, Congress did not properly fund the augmentation of RRC/home detention infrastructure needed to fulfill FSA requirements. This is indicative of legislators not grasping the unintended consequences of the back-end provisions of the laws they pass. One of our next blog posts will focus on the lack of funding for the ombudsman function in the Federal Prison Oversight Act.

End Carve-Outs and Everyone Benefits

Jack Donson on August 27, 2024

In recent years there has been a trend toward exempting groups of people from the benefits of sentencing reforms. However, doing so bakes a degree of injustice into our justice system.

It is helpful to understand the historical context for this trend. Prior to the Sentencing Reform Act of 1984 (which created the U.S. Sentencing Commission and abolished parole), and the draconian “War on Drugs” bills that followed, all people were treated equally (from a sentencing perspective) once imprisoned. The length of sentence was the punishment, with the nature of the crime, the person’s history, etc. taken into consideration when the judge imposed the penalty. At that time, everyone had an equal opportunity to earn early release due to good behavior and rehabilitation (by statute or via good-time credits). Most individuals were eligible for parole consideration after completion of one-third of their sentences. The average person with a life sentence was eligible to petition for parole after 10 years, and most lifers received mandatory parole after 30 years (with exceptions being high-profile, “sensationalized” individuals like Mutulu Shakur).

How do we decide that some crimes are ‘worse’ than others?

Today, the use of “carve outs” that treat people differently after incarceration is on the rise, and isn’t getting the attention it deserves in the advocacy world. The most common used carve-out is the exemption of individuals who were charged with violent crimes or sex-related offenses. The white-collar lobby has some culpability in encouraging these carve-outs, by spreading a false narrative in which fraud, theft and graft are crimes whose perpetrators are more capable of rehabilitation and worthier of release.

These carve-outs are now enshrined in the psyche of the justice community, as reflected in the First Step Act (FSA) of 2018. Advocates should insist that this be fixed in any “second step” legislation. Incarceration is designed for rehabilitation as well as incapacitation, and every person who makes strides toward personal growth and change should benefit from early release into the community offered via FSA credits.

Consider punishment from a fairness and deterrence perspective: A young adult in an urban area commits one act labeled as violent (there are many degrees!) and must serve 85% of his federal prison term no matter what. Yet a person who commits repetitive white-collar crimes or a first-time offender who causes losses to other in the multi-millions can be back in the community after serving just over 35% of their terms due to FSA eligibility. This is discrimination, and some people will calculate this expected leniency into their future behavior, which may perversely result in an increase such “nonviolent” crimes. It’s difficult to understand why this disparity is not getting more attention.

Let’s go a step farther with FSA pre-release credits. The people who need programming and transitional placement in the community (halfway houses) the most – individuals still in high-security prisons, for example – are the ones who are not getting it because either they are not eligible for FSA incentives or are placed on the bottom of programming waiting lists, which give preference to those who are eligible or are closer to release. But how does that promote public safety in the long term? The medium- and high-risk people ineligible for the time credits are competing for halfway house beds with people who simply don’t need the transition. Behaviors that deviate from social norms are complicated issues, involving many criminogenic factors. Aside from the most egregious crimes, we should not automatically label white collar offenses as less harmful to society than so-called violent offenses or offenders. This violent/nonviolent narrative must end when considering legislation.

A prisoner’s perspective

A More Than Our Crimes member at FCI Atlanta, Christopher Cobb, wrote about this issue recently on the MTOC blog. Below is an excerpt:

I believe that society should prioritize the rehabilitation of people who committed what is often considered the “worst” offenses. The broader community is safer when more people take evidence-based recidivism reduction (EBRR) programs. Incentives are needed to push more people into these programs, because most individuals in prison – an emasculating experience – need “prompting” to begin the hard work of change.” Why? It takes a while, after entering prison, to recognize and accept the harm they caused and their responsibility for it. And yes, offering incentives often means that many people initially take programs for the wrong reasons – to get out earlier (not necessarily because they know they need to change).

However, the beauty of “evidence-based recidivism reduction” is that almost all these individuals change their way of thinking as they progress through the programs. For instance, I originally enrolled in a paralegal correspondence course to find a way out of my situation. And it gave me that, along with the ability to help others obtain shorter sentences. But it also helped me understand where the government is coming from when it outlaws something, and how the history of the body of law has shaped our current justice system. Now I understand better how to bridge the gap between government agents and their viewpoints and those of us in the carceral situation.

Other inmates who have taken cognitive-development and criminal-thinking courses (BOP-offered EBRRs), and participated in programs like Threshold and RDAP (Residential Drug Abuse Program) have had similar experiences. And here is the kicker: Not one of those individuals actually took these courses to improve themselves; they signed up to get time off. The self-improvement was unexpected and occurred sort of as a byproduct. I guess you could say that instead of “gaming the system,” the system gamed them (but in a good way).

There’s another reason why these individuals sign up: to ease the boredom that leads to anger and violence. When people are in prison (especially when staff can lock the cell doors), they spend a lot of time in forced idleness. For instance, here at FCI Atlanta, we spend an average of 13 hours a day locked in our cells. (Yes, we have tablets, but other than music, we can only download mostly old, childish movies.)

And when we are let out, if you’re not working or in classes, you spend the majority of the time watching TV. TV isn’t a bad thing (everyone needs time to chill), but when that is all you do, it doesn’t really contribute to reduction of recidivism.

What does all that idle time lead to? Many guys turn to drugs. And drug overdoses are a clear health and safety issue.

I was not immune to this “disease.” For the first four or so years of my sentence, looking at the next 15 years in prison, I was angry. I spent most of my time simply playing cards. My day was TV, cards, TV, bed, then do it all again.

That is why I think it is so important to get “the worst” offenders into these classes. And the strongest possible incentive is earlier release from the suffering that prison imposes.

The result: The prison itself is safer and the population is more manageable. It is, therefore, a win-win when all prisoners are incentivized to participate in programs designed to reduce the likelihood of re-offense.