First Step Act
The message from Bureau of Prisons (BOP) Director William K. Marshall the III and Deputy Director Josh Smith is that the Agency is committed to fully implementing the First Step Act, signed into law by Donald Trump in his first term. Laws such as the First Step Act have the ability to reduce federal prison terms by up to a year and place inmates in a community setting, with strict rules, for a longer period of time. The plan was that this would save money, lead to better outcomes for inmates leaving to become productive members of society and provide opportunities to rejoin the workforce. To date, that initiative has fallen short because of troubles implementing the First Step Act and secondly because of the BOP’s interpretation of how it will go about maximizing time in the community.
Second Chance Act
Inmates need time to reintegrate back into society. In many federal cases it is many months or even years of between an indictment and a conviction. During that time, most men and women have limited job opportunities, high legal fees and an inordinate amount of stress knowing that prison is a possibility. Then there is prison itself. Not surprisingly, divorce is a likely outcome as a result of incarceration for those who are sentenced to more than a year. Rebuilding ones life after prison is an uphill battle and there is little rebuilding done inside of a prison institution. Living in a prison institution is punishment whether the person is in a US Penitentiary or a prison camp. Only through reconnecting with society is real progress toward reintegration possible.
The Second Chance Act (SCA), signed by President George W. Bush in 2008, was designed to ease the transition of people leaving prison back into society, with community custody and supervision playing a central role. The act recognized that successful reentry required more than surveillance; it depended on access to services that reduced the risk of reoffending and the chance to get on with opportunities to improve their lives. Under the SCA, inmates can spend up to a full year of their sentence in prerelease custody, which consists of up to a year in a halfway house and a year on home confinement depending on the duration of the sentence. This eligibility for community placement extended to minimum security inmates as well as those who had served decades in a US Penitentiary.
Advantages of Community Placement
Half of the BOP’s inmate population is minimum or low security with many of these inmates having a minimum or low chance of reoffending or committing a violent act, a measure known as PATTERN in the BOP. The BOP PATTERN score (Prisoner Assessment Tool Targeting Estimated Risk and Needs) is the BOP’s risk assessment system. It predicts recidivism by measuring factors like criminal history, prison conduct, education, and program participation. Scores categorize individuals as minimum, low, medium, or high risk, guiding programming and release eligibility. Most inmates in lower security prisons have a low or minimum PATTERN. So the BOP’s own matrices identify those likely to succeed in the community before they are even sent to the community.
While in the community, inmates can work, reunite with their family and still serve their sentence under strict rules of prerelease custody. Those rules include wearing a monitoring device, adherence to curfews, taking phone calls in the middle of the night to assure the inmate is home and holding a job. The money an inmate can earn in the community is significantly more than the $0.15/hour they make in prison, which should be noted is paid for courtesy of tax payers. The earnings an inmate can make in the community goes to both support the returning person’s family but also holds them to contributing to payment of fines, penalties or restitution.
While the BOP does provide healthcare for inmates in the community, many inmates who are released to the community have the ability to use their own medical insurance and elderly offenders who are eligible for social security can also collect after prison.
Director Marshall’s Commitment
BOP Director Marshall, who previously led a much smaller correctional agency in the state of West Virginia, recently released a video about the initiatives he is undertaking to put spotlight Trump’s First Step Act. Marshall stated, “Let me be crystal clear: this program isn’t about doing less; it’s about doing what we were always supposed to do, BETTER. This upgrade means fewer delays, more people getting the community placements they’ve earned, and our staff having access to reliable information to do their jobs with confidence.”
Deputy Director Josh Smith also stated that community ties are most important to reducing recidivism, noting that the BOP has increased the number of minutes it allows inmates to speak on phones to their families. So why are so many inmates still complaining about the lack of time they are receiving in the community?
Limitations
The BOP has acknowledged that they have a limited number of halfway house spaces to transfer inmates to during the final time in custody. In short, nobody wants a halfway house in their community. The BOP does not operate any halfway houses, but instead contracts with for profit companies like GEO Group or CoreCivic, and non-profit organizations like Goodwill or Dismas House. These contracts are limited in the number of beds they hold for federal inmates and when there is no room in the community, it is less likely that a person can stay the full amount of time in the community. The result is that many minimum security inmates spend most of their time in prison facilities rather than in community confinement.
If a person has an 18-month federal sentence and is eligible for both First Step Act credits and Second Chance Act placement, that person could potentially go to community placement almost immediately after reporting to prison. However, that never happens even though the law allows it and even though the BOP has itself won court battles stating that it has the authority to place inmates in any institution, or in the community, that they see fit. Transferring an inmate to the community reduces the stress on staff, which is suffering from low morale mostly because of the staffing shortages that continue to plague BOP.
BOP Has Authority to Place Inmates Where It Wants
The legal foundation for placing an inmate in whatever security level they choose comes from two statutes. The first is 18 U.S.C. § 3621(b), which makes clear that the BOP alone has the authority to decide where an inmate serves a sentence. Judges can recommend a specific facility, but the BOP is not required to follow that advice. The second is 18 U.S.C. § 3624(c), which directs the BOP, “to the extent practicable,” to ensure that prisoners spend a portion of their final months in conditions designed to prepare them for reentry. That includes placements in Residential Reentry Centers (RRCs, commonly known as halfway houses) or in home confinement.
Case law reinforces this point. In United States v. Ceballos (2011), the Ninth Circuit Court of Appeals emphasized that while a judge may recommend prerelease custody, the ultimate decision belongs to the BOP. In Sacora v. Thomas (2010), the same court upheld the BOP’s broad discretion to decide how much time, if any, an inmate would spend in prerelease custody. In both cases, the courts made it clear: prerelease placement is not a right, it is a matter of administrative judgment by the prison system. So why is the BOP, with leadership that seems to want to do more community placement, so reluctant to do so?
Frustration
For inmates and their families, this can be frustrating. The promise of a softer landing before full release—time in a halfway house to reconnect with work and family, or home confinement to rebuild trust—can make a critical difference in successful reentry. Yet the outcome depends entirely on the BOP’s evaluation and resource availability. Director Marshall’s message about returning inmates to the community sooner has been confusing to some inmates. In a directive in June 2024, Marshall stated that those who did not need the resources of a halfway house would instead be sent directly to home confinement. The problem with that is the SCA limits home confinement to 10% of the imposed sentence up to a maximum of 6 months. The result is that many inmates with shorter sentences, under 5 years, spend more time in prison institutions because they do not need the resources of living at a halfway house.
Inmates want to go to halfway houses, particularly those who have families they are trying to help and to start a new chapter in their life. Finding a job, renewing a license, avoiding family travel to a prison on a weekend for visitation, are only possible through community placement. There is accountability and a proven track record of success in community placement.
In short, while federal law encourages prerelease preparation, it does not guarantee it. The BOP alone decides who qualifies, when the transfer will happen, and for how long. For better or worse, prerelease custody remains, for the most part, a matter of discretion, not entitlement. So the BOP has the discretion, they have the right message from senior management to get this done, they simply have to have the will to realize the full benefits of community placement.