Prisoners Set Back By Bureau Of Prisons Home Confinement 'Expansion'
The BOP issued a press release on May 28, 2025 touting, 'Federal Bureau of Prisons Issues Directive to Expand Home Confinement, Advance First Step Act.' However, a closer look reveals that this move neither expands home confinement nor advances First Step Act.
When Trump signed the First Step Act into law in December 2018, advocates, prisoners and criminal justice reform groups all touted it as a major victory. The law was meant to both reduce the sentences for non-violent prisoners, many of whom are first time offenders, by up to a year and also give them the opportunity to serve more of their sentence under strict conditions in the community. However, the BOP has had a difficult time implementing this law under multiple directors since becoming law.
It took over three years for the Department of Justice and BOP to finalize the Final Rule for First Step Act. During that time, thousands of inmates stayed in prison hoping they would receive credits to reduce their sentence. From January 2022 until now, the BOP has taken different positions on the law, leading some to get out of prison too late while others enjoyed the additional credits and were released earlier than anticipated.
The BOP initially implemented the First Step Act by capping the credits through a rule that stated no credits could be earned within 6 months of release. BOP then issued a memorandum in March 2025 limiting the amount of halfway house placement for federal inmates from 12 months to 2 months, something central to the Second Chance Act, another hallmark piece of criminal justice reform. Both of these actions were rescinded after outcry from advocacy groups.
In September 2024, the BOP implemented a new calculator to anticipate the effects of the First Step Act after other iterations of the calculator proved to be an inaccurate tool. The result was a predictive report that every inmate was given that provided them with a projected date for leaving the institution to live in the community and a release date from BOP custody. The reaction to those in custody and their families was immediate joy, however, that was short lived.
The reports reflected 'stacking' the practice of showing the inmate both all of their First Step Act credits and the maximum amount of prerelease custody (12 months) under the Second Chance Act. To date, few inmates ever received the full compliments of these credits and the recent memorandum from Director Marshall upends 'Stacking.'
Many people want to know what the new memorandum means and the BOP provided a statement clarifying their rule. When asked whether inmates are still eligible for Second Chance Act placement up to 12 months prior to their FSA conditional placement date, as has been the case, the BOP responded, 'Due to statutory restrictions found in 18 U.S.C. 3624(c)(1), an individual who has earned 365 days (12 months) of First Step Act credits to be applied to prerelease custody cannot receive additional prerelease time under the Second Chance Act.'
The BOP's current stance contradicts its position from just a few months ago, when it stated that stacking First Step Act and Second Chance Act benefits was permissible. Now, without addressing its previous position, the BOP asserts that home confinement under the Second Chance Act is only allowed by law during the final 12 months of a prison sentence. Additionally, the BOP claims that home confinement under the First Step Act can only be applied when the First Step Act time credits earned are equal to the remaining length of the prison term. This means an inmate cannot apply First Step Act credits to home confinement while also receiving up to 12 months of prerelease custody (6 months in a halfway house and 6 months in home confinement) under the Second Chance Act. For many inmates, this change means they will have to remain in prison for up to a year longer than they had initially expected.
The BOP's statement went on to say, 'For individuals eligible under the First Step Act (18 U.S.C. § 3624(g)), and who are projected to earn at least 365 days (12 months) of time credits for prerelease custody, referrals should be based on credits and the corresponding First Step Act Conditional Placement Date. There is no restriction concerning how many credits may be applied toward home confinement.' Those who earn a year off of their sentence and another year toward home confinement will not receive any Second Chance Act, meaning they will serve a year in a prison that could have been spent in the community.
Former BOP Director Colette Peters (fired on January 20, 2025 by Trump), stated in a congressional hearing last year that capacity at BOP halfway houses was capped out. She stated at the time, "So this [halfway house capacity] is almost as significant of a problem as our recruitment and retention crisis and our infrastructure crisis, because as you're aware ... now under the First Step Act, they could spend months or years, and so that has created a substantial backlog in our residential reentry center.'
In December 2018, when the First Step Act was signed into law, the residential reentry centers (or halfway houses) had a capacity of 10,500 beds. At that time, it was understood that the law would increase the number of people placed in prerelease custody. However, as of today, the capacity of halfway houses remains largely the same. As a result, those who are eligible for First Step Act credits, which would allow them to return home sooner, now find themselves competing for limited bed space with individuals who have been incarcerated for decades and rely on halfway house resources to reintegrate into society. The intent of the new memorandum was to redirect individuals who do not require halfway house services to home confinement. However, the outcome may be that fewer people are able to leave prison, and those who could have served part of their sentence in the community will end up remaining in prison for a longer period.
In his press release about the expansion of halfway house use, Director Marshall said, 'President Trump said he would fight for the forgotten men and women of this country, and the First Step Act proved he meant it. Now, we are ensuring that this reform continues to work—not just as a policy, but as a promise to Americans seeking redemption and a path forward.'
This new directive seems counter to Trump's promise.
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