How President Trump can make the First Step Act work better for the Inmates, their Families, and the Federal Bureau of Prisons

by

Susan M. Giddings, PhD, Unit Management Section Chief, Federal Bureau of Prisons, Ret.

Bruce Cameron MS LPC-S LSOTP-S Federal Bureau of Prisons Ret. South Central Regional Office

      With the new Trump Administration only weeks away, a Forbes.com column published earlier this week pondered what that might mean for the Federal Bureau of Prisons and the First Step Act (FSA). Setting aside some inaccuracy, the columnist missed an opportunity to focus on real solutions while also perpetuating the false idea that the goal of the FSA was strictly to release people from prison sooner and save money. In 2018, President Trump told the American people the First Step Act was meant to incentivize meaningful participation in programs designed to reduce the risk of recidivism and increase the likelihood for these individuals to lead productive, law-abiding lives after serving their sentences and not return to prison.1 Early release and prerelease placement were the incentives, not the goal— any cost savings are a byproduct.

      In the early days of implementation, the goals were clear, and the path was fairly obvious, but the nature of politics is such that elections happen, and they have consequences. In 2021, the incoming Garland Administration had a completely different idea about the FSA implementation and how time credits should be earned and applied— a position that undercut the important change the FSA was intended to create. This seismic paradigm shift meant that more than two years into implementation, the Bureau was now bogged down with recoding, rewriting, and retraining. Today, only weeks from a new Trump Administration, the question of what President Trump's leadership can do to make the First Step Act work better for both the incarcerated population and the Federal Bureau of Prisons is a legitimate question. When President Trump spoke about the goals of the FSA, he emphasized this was only the "very big first step.1" We agree wholeheartedly— it's time for the next steps, and we have some suggestions for him.

      The FSA allows incarcerated individuals to earn time credits toward both early release and prerelease community placement. With the first year of earned credit applied toward early release, individuals with shorter sentences only earn FSA credits toward release, and then their prerelease placement is under the Second Chance Act. Many, if not most, of these individuals, have minimum risk levels with verified home plans and could be placed in home confinement, which frees up critical bed spaces for those who need the residential resources of a halfway house. So, why doesn't the Bureau just do this? Because Second Chance Act prerelease placement restricts home confinement to 180 days or 10% of their sentence, whichever is less. Given the lessons learned from the Cares Act and extended FSA home confinement placements, this restriction no longer makes sense. President Trump can call on Congress to amend the Second Chance Act and strike the home confinement restriction, allowing the Bureau to place these low-risk, lower-need individuals into direct home confinement.

      The FSA statutory language is complex—arguably unnecessarily so—and the complexity has been and continues to be an ongoing challenge. Despite the statute outlining the requirement for incarcerated individuals to complete risk and needs assessments, be assigned to programs based on those assessments, and then monitored for successful participation and completion to earn time credits, Federal Magistrates and District Courts continue to weigh in on what they believe Congress intended. Of course, the role of the courts is to ensure federal agencies are implementing the laws passed by Congress, but the variety of decisions, both agreeing and disagreeing with the Bureau's implementation regarding the same issues, is dizzying. Some courts have even decided that credits are just given, not earned, with incarcerated persons not required to meet the provisions of the law. President Trump can call on Congress to amend the FSA statute by adding language to clearly articulate the conditions required to begin earning credit. Such an action would create clarity for both the Bureau and the incarcerated population, as well as eliminate the wasted time and resources spent by the courts and the Bureau. 

      Another area of the statute that requires clarity relates to eligibility for prerelease placement. Because Congress did not specify that individuals needed to be eligible to participate in prerelease placement to have their earned time credits applied, the Garland Administration required the Bureau to place individuals with state detainers, unresolved pending charges, and pending deportation in non-secure, community-based halfway houses. Due to the increased risk for escape, these individuals are not permitted to transfer to home confinement and, as such, tie up bed space for extended periods of time— presuming they don't escape anyway. Separate from the community risks, and these placements also displace other individuals who are eligible for and need the halfway house placement, with or without time credits. 

      It's no secret that the Bureau needs more community prerelease bed space; Congress obligated the Bureau in the FSA to ensure there was enough space, but the process to establish new bed space is neither simple, quick, nor inexpensive, and Congress did not provide enough resources for the Bureau to fulfill this obligation. Further, community-based programs such as halfway house and home confinement were never designed for long-term placements, nor were they ever staffed to manage the workload of such placements. There are 22 Residential Reentry Management Offices (RRMO), typically with only seven employees each, that manage nearly 12,000 individuals in prerelease community placements and provide oversight to approximately 160 provider contracts, in addition to many other duties. With the FSA, the Bureau has had to adopt a new model that includes both short-term reentry programming and long-term community incarceration but was not provided the funding to make this shift. The Bureau needs President Trump to grant special contracting authority that would reduce the time it takes to establish new contracts and expand existing ones. The Bureau also needs the funding to pay for these new and expanding contracts, as well as increase staffing levels— more oversight staff to manage the increased capacity (people and contracts) and case management and records specialists necessary to provide oversight to the earned time credit application for the community-based population. 

      With the Second Chance Act restrictions on home confinement removed and the Bureau provided the resources they need to rapidly expand community-based programs, the Bureau could then expand home confinement placement for all individuals with a viable, verified home plan and who are already housed in minimum-security facilities with minimum recidivism risk levels. This would require greater support from Federal Probation and Pretrial Services to investigate and verify release plans more quickly and earlier in an individual's term of incarceration. Although the FSA already includes a provision for such collaboration, it has not fully materialized, and the resulting impact is release plan approvals are delayed, which, in turn, delays home confinement placement for otherwise eligible individuals and further exacerbates the bed space capacity issue. The incarcerated population needs President Trump to call on the Federal Judiciary and Federal Probation and Pretrial Services to support the home confinement initiative, which will allow for better management of space, better-serving individuals with an actual need for temporary housing, and yes, it would save money as well.

      These ideas are just easy, low-hanging fruit that could yield significant results as incarcerated individuals transition from prison to their communities as law-abiding, productive citizens. Other initiatives would require significant Congressional engagement and action. For starters, amend the statute related to earning and applying credit— the complexity of the FSA's current language only created confusion and uncertainty, as well as an extraordinary administrative burden for Bureau employees at all levels. President Trump could also call on Congress to amend statutory language, creating a leaner, more efficient process— a simpler, straightforward system of earning and applying credit that reduces, or even eliminates, the level of confusion created by the current language and at the same time significantly reduce the administrative burden. This change would allow case management and other frontline staff to focus on delivering programs and reentry planning. 

      More than just amending the current legislation, it is time for what we are calling "next steps legislation"— maybe President Trump can even call it the Next Step Act. The Forbes.com columnist suggested that, because of the early release benefits, Congress should expand the Residential Drug Abuse Treatment (RDAP) admission criteria to include individuals without a need for drug treatment; this is a poor idea as it would displace other individuals with an actual treatment need. A better idea would be expanding program-specific early release benefits— President Trump, as part of the next steps legislation, can call on Congress to expand early release benefits for other major program completions, including residential programs like the Challenge, Brave, and Life Connections programs or certain non-residential programs such as GED completion and Department of Labor certified apprenticeships. 

      A truly bold idea would be to re-envision eligibility for FSA earned time credits and the RDAP early release benefit, as well as any future early release benefits. The DOJ reported in the 2024 FSA Annual Report more than 90,000 people (roughly 65% of the population), were ineligible to earn and/or apply FSA credit due to their offense or/and recidivism risk level.2 Why should we limit incentivizing any group to engage in programming? Next steps legislation could create a path for higher-risk individuals to earn time credits and other early release benefits. This new earning eligibility path could be tied to program completion and clear conduct. 

      The ideas here are just some examples of what can be done. The incarcerated population and the Bureau need President Trump to act immediately. The outgoing Administration only exacerbated the issues for the Bureau and undermined the good faith efforts of thousands of Bureau employees in implementing the First Step Act as intended by President Trump. The Garland Administration actively contributed to the prerelease bed space crisis and confusion for incarcerated persons, their families, and Bureau employees. The First Step Act was a good first step, but elevating it to the next level and truly realizing its full potential will take imagination and leadership. We believe President Trump has exactly what it takes to get it done. 

1. Remarks by President Trump on H.R. 5682, the FIRST STEP Act. Available at https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-h-r-5682-first-step-act/

2. First Step Act Annual Report, June 2024. Available at https://www.bop.gov/inmates/fsa/docs/first-step-act-annual-report-june-2024.pdf