The Trump-era First Step Act has allowed thousands of nonviolent federal offenders to leave prison sooner, but advocates say they have reviewed numerous instances of inmates remaining behind bars longer than they should be — raising questions about ongoing implementation failures.
Sreedhar Potarazu, a former federal inmate who sued his Maryland prison in 2022 over the calculation of his so-called earned time credits under the First Step Act, has turned his inside knowledge of the law toward helping inmates determine the exact dates when they should be released from prison, typically into a halfway house or home confinement, until their sentences are fulfilled.
In nine cases reviewed by Potarazu and shared with NBC News, inmates were incarcerated between two and eight months past their “last date inside,” a term that he says denotes when an inmate can technically be transferred out of prison to prerelease custody because they’ve accrued enough time credits through participation in rehabilitation and work programs and drug and alcohol abuse counseling.
“Even one life kept in longer is an injustice,” Potarazu said, adding: “The taxpayer should care because they’re footing the bill. You may not have anyone in there, but you’re still paying for it.”
Walter Pavlo, president of the consulting firm Prisonology LLC, whose experts include former federal Bureau of Prisons case managers, wardens and sentence computation professionals, said he regularly sees cases of inmates who have remained in prison past the dates they should have been moved, with an underlying issue appearing to be a lack of capacity at halfway houses.
Across the country, the BOP says it contracts with about 160 halfway house locations offering more than 10,000 beds, although it’s unclear how often they are at maximum capacity and whether they can offer additional space.
More than 8,200 inmates are in halfway houses, the agency says.
In response to whether the BOP tracks how many inmates may be incarcerated longer because of delays in transferring them, the agency said Thursday that such information is not collected.
“Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP said.
The agency added that it “makes every effort to place individuals who qualify for release under the First Step Act,” but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”
Pavlo said he’s seen that anecdotally, as well.
“I have families calling halfway houses every single day asking when there will be space,” he said. “What’s frustrating is that it’s so discombobulated.”
The First Step Act, a bipartisan law signed in 2018 by then-President Donald Trump, was enacted to give an opportunity for “minimum-risk” or “low-risk” offenders to receive shortened sentences. Supporters believe the law can cut harsh sentences for nonviolent drug offenders, reduce recidivism and help lower the prison population, while lessening racial disparities in the criminal justice system.
More than 144,000 people are held in BOP custody, a number that has generally fallen over the decades, the bureau’s data shows. The agency says over 33,500 inmates who qualify under the First Step Act have been released.
But as the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information. In 2022, as the BOP fine-tuned the time credits program, a new computer app was launched to automatically calculate those credits, although it initially suffered a technical glitch.
The BOP said Thursday that “credits are being calculated as required under the First Step Act.”
Pavlo said the issue now has moved beyond the calculation of the time credits to the agency’s responsibility to secure inmates a place outside of prison or in home confinement as part of their prerelease custody.
The First Step Act mandates the BOP director “shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.”
In a 2023 annual report, the agency said it was still “too soon to assess cost savings resulting from the implementation” of the law, and that the BOP remains “responsible for the costs for individuals being moved from an institution” to a halfway house or home confinement.
“The BOP has no cost savings to report based on early transfer to prerelease custody at this time,” the report said.
Data published in the Federal Register in September shows it cost $116.91 per day to house a federal inmate compared to $107.39 per day in a halfway house. The cost for home confinement supervision was about $55.26 a day in fiscal year 2020.
Rep. David Trone, D-Md., a member of the House Appropriations Committee, said additional savings are incurred when an inmate who has been through First Step Act programs is rehabilitated, finds work through transitional housing and, ultimately, does not return to prison.
“I always refer to the First Step Act as criminal justice lite,” Trone said. “We need to get real savings and give people real second chances. We haven’t executed the First Step Act properly.”
Ames Grawert, a senior counsel for the Brennan Center for Justice who has studied the law, said it wouldn’t be surprising if inmates aren’t being released to halfway houses as soon as they should be because of capacity — but it’s up to Congress to ensure the BOP has the funding to implement the First Step Act and the infrastructure is in place.
“Implementation is always a challenge in any law, especially when you’re dealing with a system that’s as complex and with so many issues as the Bureau of Prisons,” Grawert said. “It doesn’t mean that people made mistakes in drafting the bill, it just means that the follow-through is really, really hard to make happen.”
Potarazu, an ophthalmic surgeon, said he spent at least four additional months in prison on financial fraud-related charges after he was eligible to be moved to a halfway house in 2023 under the First Step Act.
He first filed a petition in 2022 seeking for his time credits to be accurately calculated, and a federal judge in Baltimore finally ruled in his case on Wednesday. It was dismissed without prejudice after the judge said his case was “moot” because Potarazu was no longer in BOP custody.
But, Potarazu said, he was validated after the judge wrote that the “BOP admits that Petitioner’s earned time credits were incorrectly calculated several times.”
The agency on Thursday declined to comment on the ruling.
Potarazu said he ultimately wants to see others like himself released when the BOP is legally obligated to do so, and that prisoners shouldn’t have to assume they’re going to remain behind bars longer than they should and go to the lengths of litigation that can take years.
“Even when you have the foresight to do so, you’re still trapped,” he said.
