First Step Act
A tenant of our criminal justice system is rooted in the concept of swift and certain punishment, which refers to the principle that the consequences for criminal behavior should be imposed quickly and predictably following a violation. Neither of these hold up well in federal cases that often take over a year to reach a jury, or plea, and terms of incarceration are subject to the interpretation of rules that can keep people in prison longer than the inmate realized.
Some of the uncertainty related to the terms of confinement in an institution could be resolved by a more strict implementation of the First Step Act (FSA) by the Federal Bureau of Prisons (BOP). However, past BOP administrations did little to advance this, leaving many inmates in prison institutions longer than they would have been otherwise.
When Congress passed the FSA in December 2018, its primary goals were to reduce recidivism, improve rehabilitation opportunities, and address long-standing issues in the federal criminal justice system. The Act encouraged inmates to participate in evidence-based recidivism reduction (EBRR) programs and productive activities by allowing them to earn time credits toward early transfer to prerelease custody, such as halfway houses or home confinement. While the Act was primarily framed around rehabilitation, fairness, and public safety, lawmakers and policy experts also saw it as a fiscally responsible reform that could help control or reduce the costs associated with institutional incarceration by reducing prison terms and placing people in the community toward the end of their sentence.
The Second Chance Act
BOP has previously taken steps to reduce institutional prison populations and has embraced policies that support that goal. One example is the Second Chance Act, signed into law by President George W. Bush in 2008. Its primary objective was to lower incarceration rates and associated costs by expanding opportunities for community-based reentry. The Act allowed eligible inmates to spend up to one year in Residential Reentry Centers (RRCs)—commonly known as halfway houses—and provided an additional incentive: up to 10% of the imposed sentence (capped at six months) could be served on home confinement during the final year of custody.
For many years, the BOP embraced this policy, and it became common for inmates to receive between six months up to a full year of RRC placement. Although the law granted the BOP discretion in these decisions and did not mandate placements, both minimum-security camp inmates and those in high-security U.S. Penitentiaries also benefited. These transitional placements helped inmates gradually reintegrate into society and improve their chances of successful reentry.
Putting the Two Acts Together
The Bureau of Prisons (BOP) encountered significant challenges with the implementation of the First Step Act (FSA). One of the earliest and most pressing issues was the increased demand placed on Residential Reentry Centers (RRCs), which were suddenly expected to accommodate individuals eligible under the FSA—many of whom had relatively short sentences. This shift often came at the expense of not housing those with longer incarceration histories who relied on RRCs as transitional housing after years in prison. Notably, RRC capacity has seen little expansion from the time just prior to the FSA's enactment to the present day.
A more critical and complex issue has been the BOP’s difficulty integrating FSA provisions with those of the earlier Second Chance Act. In practice, this has led to widespread confusion among inmates, many of whom no longer have a clear understanding of when they will be transferred to community-based custody. The root of the problem lies in the BOP’s discretionary decision-making, which has increasingly favored extended incarceration in institutions rather than shortening it. These decisions are often made without transparency, explanation, or any formal communication to the affected individuals.
As a result, many incarcerated individuals are being denied the full benefit of the Second Chance Act, remaining behind bars for months longer than necessary. While the BOP technically has the discretion to release more people into community placement, it rarely exercises this option consistently.
For instance, a minimum-security inmate serving an 18-month sentence and who is eligible under the FSA, could theoretically be placed directly in an RRC upon arrival at the prison. With 81 days of Good Conduct Time and 135 days of potential FSA credits, only 324 days of the sentence would remain. Given that the Second Chance Act allows up to 365 days in an RRC, immediate placement seems not only possible but logical. Yet, in practice, these placements are rarely offered—and no existing program statement explains why this scenario is not being utilized.
Despite legislative efforts aimed at reducing time spent in federal prison, the BOP has continued to shield its internal decision-making — particularly around designation and release — from judicial oversight. This approach undermines the spirit of reform intended by both the FSA and the Second Chance Act and ultimately results in longer, not shorter, periods of incarceration.
Discretion Is Problematic
Under the Second Chance Act, the Bureau of Prisons (BOP) has broad discretion — primarily exercised through its case managers — to determine how much time an individual should spend in a community placement such as a Residential Reentry Center (RRC). These decisions are typically made without the need for formal justification, and in practice, the BOP rarely offers any explanation. Once a case manager makes a recommendation, it is forwarded to the Residential Reentry Manager (RRM), who oversees multiple RRCs within a region. Due to limited space and budget constraints, RRMs frequently reduce the amount of RRC time requested by case managers, often without providing any reasoning or feedback. This process is routinely labeled as the exercise of “discretion” — a term the BOP has consistently relied on as a shield against accountability or transparency.
Legally, the BOP holds firm authority over inmate placement within its system, including assignments to RRCs. While judges may offer recommendations—such as suggesting a specific facility or the duration of community placement — those suggestions are non-binding. The BOP retains the exclusive power to make final determinations, and courts have historically upheld its authority in these matters. As a result, the agency's decisions about where and how long individuals serve their sentences often override judicial input, further reinforcing the BOP’s unilateral control.
In a recent court case, two inmates brought a civil rights case in the District of Columbia saying that the BOP did not give them sufficient time to be placed in the community (See United States District Court for the District of Columbia, Case No.: 24-cv-3582, Crowe et al v Bureau of Prisons). The Court dismissed the case citing that by the time it made its decision, the two main people involved had already been transferred to an RRC and that the BOP had discretion to send inmates to the community if it wanted to.
If the BOP has this discretion, and law makers have provided two laws to help them move people to the community, then it begs the question why are they not doing it?
It’s About Security Classification
Community custody has wrongly been characterized as being free from prison. The BOP has four levels of security; minimum, low, medium and high. Most of those who are FSA eligible are in minimum and low security institutions representing roughly half of the BOP’s total population. Like oversight provided at all security levels in BOP institutions, placing a person in an RRC or home confinement is very much still incarceration.
Community custody whether in an RRC or on home confinement still requires significant oversight and accountability. Inmates must wear devices to track their movements, they must check in at certain times and they are under strict curfews. If they do not comply, they are returned to prison. It is a difficult existence and it most certainly is punishment. If the BOP decided to embrace the expanded use of RRCs, there is not a judicial circuit out there that could argue with the discretion used by the Agency. A recent opinion piece in The Hill co-authored by former Acting BOP Director Hugh Hurwitz and formerly incarcerated Louis Reed laid out some direction for the BOP to move people to the community.
Motivations to Keep People In Prison
The BOP has the ability to maximize the number of inmates they place in the community to complete their sentences but it just has not happened. They do not need Congress to Act or the president to give some executive order. They have the tools they need to place thousands of more people into RRCs.
There are plenty of theories as to why the BOP has not fully implemented FSA. One reason cited, without any empirical data, is that BOP employees rely on inmates for a job. Fewer inmates would translate into lesser job security. This theory does not hold up since the BOP is suffering from extreme staffing shortages. It has the tools it needs to right size the organization and focus more on those who really need to be kept from society. RRCs should be looked at as a being yet another security level that the BOP can use to house inmates, not some ‘get out of jail free’ proposition.
The fact is that the BOP has lacked leadership to lead it into the modern era of incarceration. It is an Agency that prospered during the days of locking up drug offenders that saw the federal prison population top over 220,000 in 2013. Then as buildings became old and decrepit, it failed to keep up and now BOP employees sit in the same rotting, molded facilities that house the inmates they watch. Those corrections offices and case managers on the front line see this everyday. There is a solution to this, if the BOP would only seize this opportunity.
Follow me on LinkedIn or Twitter or Forbes. Check out my website or some of my other work here.
.jpg)
