Highlighting continuing challenges in implementing First Step Act’s custody transition mandates

In this extended new commentary in the Atlanta Journal-Constitution, Hugh Hurwitz and Walter Pavlo discuss the importance of halfway house in the federal prison system and challenges created by the First Step Act. I recommend the piece in full, and here are excerpts:

When most people think of the Federal Bureau of Prisons, they think of the many federal prisons across the country. They don’t think of houses in their neighborhoods.

There is a group of 150-plus small facilities in our communities that house and oversee more than 14,000 adults in custody. The Bureau of Prisons contracts with these facilities — known as residential reentry centers or halfway houses — to provide assistance to adults in custody who are nearing release. Residential reentry centers provide a safe, structured, supervised environment for the adults in custody, as well as employment counseling, job placement, financial management assistance and other programs and services.

Reentry centers help those in custody gradually rebuild their ties to the community during this transitional phase. Contracts usually have an in-house portion (the adult in custody lives in the halfway house) and a home-confinement portion (where the adult is ordered to stay their own residence for some of the day)….

The First Step Act of 2018 was signed into law by then-President Donald Trump on Dec. 21, 2018. The act sought to improve criminal justice outcomes and reduce the size of the federal prison population while creating mechanisms to maintain public safety.  Among other things, the act provides for low-risk adults in custody to earn time credits toward placement in early supervised release and prerelease custody….

Congress inadvertently put the bureau in an impossible position. The act states that “Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.”  The use of the word “shall” is key here.  “Shall” is mandatory, not permissive.  This means that if someone earns time credits and is otherwise eligible, they must be put in prerelease custody.

When the First Step Act was passed, the Bureau of Prisons recognized this requirement and began looking into ways to increase residential reentry center capacity. Despite repeated attempts, the bureau has made only incremental increases.

According to the bureau’s Office of Public Affairs, there were 10,408 beds in contracted halfway houses on Jan. 1, 2019. As of Sept. 23, 2024, that number was 10,553 — only 145 more in 5½ years. Inexplicably, the Bureau of Prisons is now telling offerors that they are canceling some solicitations for additional residential reentry center capacity because of “budgetary and staffing considerations.” The bureau receives more than $400 million annually to implement the First Step Act.  Surely, it can find a way to use some of this funding to increase reentry center capacity….

As adults in custody are now earning sufficient time credits to be eligible for significant time placement in prerelease custody, the bureau says it lacks sufficient bed space and is unable to fully comply with the law.  The Bureau of Prisons is limited in its ability to house adults in custody in residential reentry centers by the number of centers and home confinement “beds” under contract.