Congratulations! Why Your Family Member Is Likely Part of the 21,000 Club

We at A Better Tomorrow are passionate about helping inmates and their families prepare for and achieve successful reentry. If you’re like most families, you are eager for your loved one to transition into community custody, whether through a halfway house (RRC) or home confinement. Like many others, you may also be frustrated that they should have already transitioned by now but still have not. Well, you are not alone.

The Government Accountability Office (GAO) recently audited the Bureau of Prisons and issued a report titled GAO Summary Report to Congressional Requesters, GAO-26-107353. In this report, the GAO manually reviewed approximately 29,000 inmate case files — apparently due to inadequate computer tracking systems — and found that more than 21,000 prisoners were being held in prison beyond the BOP’s own calculated prerelease date for community confinement. Yes, more than 21,000 individuals.

That number comes from a First Step Act (FSA) population of roughly 70,000 prisoners. Imagine how much higher the total could be if all files were reviewed and all FSA credits were properly calculated.

The report identified several causes for these delays, including:

• Poor computer systems

• Lack of employee training

• Operational inefficiencies

• Insufficient halfway house capacity

  
  

However, the primary issue cited was that since the First Step Act became law in 2018, prior BOP leadership failed to add enough halfway house beds to support the law’s implementation.

The former BOP Director blamed budget limitations, but many believe that explanation is insufficient given the amount of waste, fraud, abuse, and spending priorities that exist within federal agencies. One example frequently cited is the hundreds of millions of dollars spent annually on overtime. Regardless, the First Step Act is federal law, and it clearly states that the BOP Director shall ensure sufficient bed capacity exists for the program.

Unfortunately, implementation has fallen far short of that requirement.

Since 2018, the BOP reportedly added only around 1,200 halfway house beds despite starting with approximately 6,800 beds nationwide. That averages to roughly 150 new beds per year — nowhere near enough to meet demand. According to the GAO, this shortage has contributed directly to the backlog of more than 21,000 prisoners awaiting prerelease placement.

In our opinion, the 21,000 figure likely understates the true scope of the problem for two major reasons:

1. The GAO Did Not Review Every File

The GAO reviewed approximately 29,000 files, not the entire population of more than 70,000 prisoners eligible under the First Step Act.

2. The BOP Continues to Exclude Certain FSA Credits

The BOP still disregards or improperly calculates FSA credits in several common situations, including:

• Using incorrect start dates for when prisoners begin earning FSA credits

• Suspending credit accumulation during transfers between BOP facilities, which can last two to four months

• Refusing to apply projected future FSA credits that would continue accruing during halfway house or home confinement

  
  

This final issue is especially significant because it can involve one to two years’ worth of credits. Instead of applying those projected credits to move up prerelease custody dates, the BOP has effectively stated those credits are “thrown away,” according to filings in Gonzalez v. Herrera before the Ninth Circuit Court of Appeals.

As frustrating as these issues are, there is still reason for optimism.

Both the Department of Justice and the BOP’s new leadership — Director William Marshall III and Deputy Director Joshua Smith — have publicly stated their commitment to properly implementing the First Step Act. While meaningful reform will likely take years due to the size and bureaucracy of the BOP, several corrective actions are already underway.

For example:

• The BOP has formed a First Step Act Task Force led by Rick Stover

• Requests for proposals have reportedly been issued for 20 new Residential Reentry Centers (RRCs)

• The BOP is rewriting Program Statement 5410.01 regarding FSA implementation

  
  

Mr. Stover has even publicly acknowledged that the current procedures need substantial revision.

The challenge facing the DOJ and BOP is that, for years, many U.S. Attorneys, Regional Offices, and BOP legal departments opposed broader application of FSA credits in court proceedings and administrative grievances. As a result, many inmates continue receiving BP-9, BP-10, and BP-11 denials stating that requests are “rejected by policy,” even when families and inmates believe the denials conflict with the plain language of the statute.

Director Marshall III now appears to be attempting to reform many of these outdated policies, but revising decades-old procedures across such a large federal agency is an enormous task.

So what can families do right now while these reforms slowly unfold?

We will discuss this more in future blog posts, but at a minimum, families should consider the following:

1. Encourage Your Loved One to Exhaust the Administrative Remedy Process

Encourage your family member to complete the BP-8 through BP-11 administrative process and clearly state that they believe they are not receiving all earned First Step Act credits. The requested relief should be recalculation of those credits.

This process may take several months, but exhausting administrative remedies is often necessary before pursuing relief in federal court.

2. Contact Your Congressional Representatives

Families should consider contacting their U.S. Representative or Senator. Provide them with the name and contact information of the institution’s Warden and ask that they inquire about your loved one’s delayed prerelease placement. You can also ask them to contact Director Marshall III directly.

Some families worry about retaliation, but many would argue that continued delays in prerelease custody already amount to ongoing harm.

We will continue expanding on these issues in future blog posts and encourage families to review their loved one’s FSA worksheet carefully to determine whether any of these common issues may apply.

If you have questions or comments, please respond below.