GAO
February 2012

United States Government Accountability Office

Report to Congressional Requesters

BUREAU OF
PRISONS
Eligibility and
Capacity Impact Use
of Flexibilities to
Reduce Inmates' Time
in Prison

GAO-12-320

February 2012

BUREAU OF PRISONS
Eligibility and Capacity Impact Use of Flexibilities
to Reduce Inmates’ Time in Prison
Highlights of GAO-12-320, a report to
congressional requesters

Why GAO Did This Study

What GAO Found

The Department of Justice’s Federal
Bureau of Prisons (BOP) is responsible
for the custody and care of federal
offenders. BOP’s population has
increased from about 145,000 in 2000
to about 217,000 in 2011 and BOP is
operating at 38 percent over capacity.
There is no longer parole for federal
offenders and BOP has limited
authority to affect the length of an
inmate's prison sentence. BOP has
some statutory authorities and
programs to reduce the amount of time
an inmate remains in prison, which
when balanced with BOP’s mission to
protect public safety and prepare
inmates for reentry, can help reduce
crowding and the costs of
incarceration. GAO was asked to
address: (1) the extent to which BOP
utilizes its authorities to reduce a
federal prisoner’s period of
incarceration; and (2) what factors, if
any, impact BOP's use of these
authorities. GAO analyzed relevant
laws and BOP policies; obtained
nationwide data on inmate participation
in relevant programs and sentence
reductions from fiscal years 2009
through 2011; conducted site visits to
nine BOP institutions selected to cover
a range of prison characteristics and at
each, interviewed officials responsible
for relevant programs; and visited four
community-based facilities serving the
institutions visited. Though not
generalizable, the information obtained
from these visits provided insights.

BOP’s use of authorities to reduce a federal prisoner’s period of incarceration
varies. BOP primarily utilizes three authorities—the Residential Drug Abuse
Treatment Program (RDAP), community corrections, and good conduct time.
• Eligible inmates can participate in RDAP before release from prison, but
those eligible for a sentence reduction are generally unable to complete
RDAP in time to earn the maximum reduction (generally 12 months). During
fiscal years 2009 through 2011, of the 15,302 inmates who completed RDAP
and were eligible for a sentence reduction, 2,846 (19 percent) received the
maximum reduction and the average reduction was 8.0 months. BOP officials
said that participants generally do not receive the maximum reduction
because they have less than 12 months to serve when they complete RDAP.
• To facilitate inmates’ reintegration into society, BOP may transfer eligible
inmates to community corrections locations for up to the final 12 months of
their sentences. Inmates may spend this time in contract residential re-entry
centers (RRCs)—also known as halfway houses—and in detention in their
homes for up to 6 months. Based on the most recently available data, almost
29,000 inmates completed their sentences through community corrections in
fiscal year 2010, after an average placement of about 4 months; 17,672 in
RRCs, 11,094 in RRCs then home detention, and 145 in home detention
only. RRCs monitor inmates in home detention and charge BOP 50 percent
of the daily RRC cost to do so. However, BOP does not require RRC
contractors to separate the price of home detention services from the price of
RRC beds and thus, does not know the actual costs of home detention. BOP
officials stated that they are developing a process to review and amend
existing RRC contracts and require new contractors to submit proposals
separating out RRC and home detention prices, but did not document the
specifics of the review process or establish time frames or milestones for the
review. Thus, BOP does not have a roadmap for how it will achieve this goal.
• Most eligible inmates receive all of their potential good conduct time credit for
exemplary compliance with institutional disciplinary regulations—54 days
taken off their sentence, per year served, if an inmate has earned or is
earning a high school diploma; 42 days if not. As of the end of fiscal years
2009, 2010, and 2011, about 87 percent of inmates had earned all of their
available credit.
BOP also has other authorities, such as releasing prisoners early for very
specialized reasons, but has used these less frequently for various reasons.

What GAO Recommends

Inmate eligibility and lack of capacity impact BOP’s use of certain flexibilities and
programs that can reduce an inmate’s time in prison. BOP officials cited inmate
ineligibility for RRC placement (e.g., inmates who are likely to escape or be
arrested or with sentences of 6 months or less, among other things) as the
primary reason that some inmates are not released through community
corrections and one of the main reasons that some inmates are not able to
participate in RDAP. BOP’s lack of additional RRC space has prevented it from
increasing the length of its RRC placements. According to BOP, lack of program
capacity also prevents eligible inmates from entering and completing RDAP early
enough to earn their maximum allowable sentence reductions, which prevents
BOP from maximizing the cost savings provided by the authority.

GAO recommends that BOP establish
a plan, including time frames and
milestones, for requiring contractors to
submit prices of RRC beds and home
detention services. BOP concurred
with this recommendation.
View GAO-12-320. For more information,
contact David C. Maurer at (202) 512-9627 or
maurerd@gao.gov.

United States Government Accountability Office

Contents

Letter

1
Background
BOP’s Use of Authorities That Can Reduce a Federal Prisoner’s
Period of Incarceration Varies
Inmate Eligibility and Lack of Capacity Impact BOP’s Use of
Certain Flexibilities
Conclusions
Recommendation for Executive Action
Agency Comments and Our Evaluation

5
10
30
35
36
36

Appendix I

Comments from the Federal Bureau of Prisons

38

Appendix II

GAO Contact and Staff Acknowledgments

39

Tables
Table 1: Statutory Provisions Available to BOP to Reduce a Federal
Prisoner’s Period of Incarceration or Time in BOP Custody
Table 2: Number of Eligible Inmates Placed in Community
Corrections Who Complete Their Sentences, and Average
Length of Stay for Fiscal Years 2009 and 2010
Table 3: GCT Credit Disallowance Guidelines, by Infraction
Severity Level
Table 4: Illustration of BOP’s Calculation of GCT Credit for an
Imposed Sentence of 10 years for an Inmate Earning the
Maximum GCT Credit

8
17
22
24

Figures
Figure 1: BOP Regional Map
Figure 2: RDAP Participation Process
Figure 3: Daily Cost per Inmate of BOP Facilities Compared with
Community Corrections
Figure 4: Number of Inmates Ineligible for RRC Placement from
April 2008 to March 2011

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12
19
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GAO-12-320 BOP Use of Sentencing Flexibilities

Abbreviations
BOP
DAP
DHO
DOJ
GCT
ICE
RDAP
RRC
USSC

Federal Bureau of Prisons
Drug Abuse Program
Disciplinary Hearing Officer
Department of Justice
Good Conduct Time
Immigration and Customs Enforcement
Residential Drug Abuse Treatment Program
Residential Reentry Center
United States Sentencing Commission

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GAO-12-320 BOP Use of Sentencing Flexibilities

United States Government Accountability Office
Washington, DC 20548

February 7, 2012
The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
The Honorable Robert C. “Bobby” Scott
Ranking Member
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
United States House of Representatives
The Department of Justice’s (DOJ) Federal Bureau of Prisons (BOP) is
responsible for the custody and care of federal offenders. 1 BOP’s mission
is to confine federal offenders in the controlled, safe, secure, humane,
and cost-efficient environments of prisons and community-based facilities,
and to provide work and other self-improvement opportunities to assist
offenders in becoming law-abiding citizens. BOP’s population has
increased by 50 percent from about 145,000 in 2000 to about 217,000 at
the close of fiscal year 2011, and BOP projects a net increase of roughly
6,000 inmates annually for the next 3 years. In addition, BOP reports that
it is operating at 38 percent over capacity with higher rates of crowding in
its high- and medium-security institutions than in its low- and minimumsecurity institutions. 2
The size of the federal prison population is a function of many factors,
including the nation’s crime levels, sentencing laws, and law enforcement
policies, all of which are beyond the control of BOP. In addition, the
Sentencing Reform Act of 1984 abolished parole for federal offenders,

1
The National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.
L. No. 105-33, § 11201, 111 Stat. 712, 734-37, transferred the responsibility and costs
associated with certain state criminal justice functions, including housing, parole, and
supervised release of adult felons convicted under the D.C. Code from the District of
Columbia to various federal government agencies, including BOP.
2

The figure refers to capacity in institutions operated by BOP. Security level classification
depends on factors such as staff supervision the institution is able to provide; the
presence of security towers; perimeter barriers; the type of inmate housing (e.g.,
dormitories, cubicles, or cells); and the staff-to-inmate ratio.

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and subsequent legislation established mandatory minimum sentences
for many federal offenses, which limit the authority BOP has to affect the
size of the prison population or the length of prison sentences. 3 However,
BOP has some statutory authorities whereby it can reduce the period
during which an inmate is incarcerated or remains in BOP custody. 4
These programs and authorities are primarily intended to rehabilitate
inmates and prepare them for reentry into society, and encourage good
behavior while in BOP custody. Effective BOP use of these authorities,
while adhering to the agency’s stated mission to protect society by
confining offenders in the controlled environments of prisons and
community-based facilities, has the potential to help reduce overcrowding
and the associated costs of incarceration.
You asked us to review the authorities BOP has to reduce a federal
prisoner’s period of incarceration and how it is using its authorities.
Specifically, this report addresses the following questions:
•
•

To what extent does BOP utilize its authorities to reduce a federal
prisoner’s period of incarceration?
What factors, if any, impact BOP’s use of these authorities?

To address the first question, we analyzed relevant federal statutes to
identify what discretionary authorities BOP has to reduce a prisoner’s
period of incarceration. 5 We also analyzed BOP policies, program
statements, and guidance memos, and interviewed officials from BOP’s

3

Prior to passage of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.
1987, federal judges generally had broad discretion in sentencing. Most criminal statutes
provided only broad maximum terms of imprisonment. Federal law outlined the maximum
sentence, federal judges imposed a sentence within a statutory range, and the federal
parole official eventually determined the actual duration of incarceration.

4

In this report, we use the term “incarceration” to refer to inmates housed in federal
correctional institutions or privately managed prisons. Most inmates serve out the last
portion of their sentences under BOP custody in a prerelease placement in a communitybased facility or in home detention.
5

We limited our review to authorities that apply to inmates who committed a federal
offense on or after November 1, 1987, after the effective date of the Sentencing Reform
Act of 1984, also known as “new law.” BOP also has in its custody offenders sentenced
under “old law,” some of whom are parole eligible, and may not be eligible to benefit from
some of the authorities we discuss in this report. “Old law” refers to offenses committed
before November 1, 1987, and to the statutory, regulatory, and BOP provisions followed
prior to the enactment of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98473, 98 Stat. 1976.

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Information, Policy, & Public Affairs Division; Office of General Counsel;
Designation and Sentence Computation Center; and Correctional
Programs Division to determine how BOP implements programs that
utilize its discretionary authorities. We obtained nationwide data regarding
inmate participation in relevant BOP programs, program capacity, and
sentence reductions received for program participation, or through other
authorities, during fiscal years 2009, 2010, and 2011. We also obtained
population and cost projections BOP has developed related to various
alternative uses of its authorities. We compared BOP’s methods for
estimating the costs of supervising inmates in home detention with
standard practices for program and project management to determine
whether BOP has a planning process in place to achieve reliable
estimates of these costs. 6 We obtained information from relevant BOP
officials about the steps taken to ensure the accuracy of all of the data,
and found the data to be sufficiently reliable for the purposes of this
report.
To address the second question, we interviewed BOP Central Office and
program officials as well as subject matter experts in community
corrections, inmate rights, and in-prison rehabilitation programs identified
through a review of the literature and through subsequent discussions
with these experts. We also conducted site visits to six BOP institutions,
and one privately managed institution overseen by BOP, to observe
operations and to obtain perspectives from prison officials about the
implementation of these discretionary authorities and any challenges they
faced. We selected facilities to cover a range of prison characteristics,
including management (e.g., BOP and private), security classification
(e.g., minimum, low, medium, and high), medical care level, inmate
gender, geographic variability (e.g., region, urban/rural), and the presence
of relevant BOP programs. 7 The sites include four BOP institutions and
one privately managed institution in BOP’s Western Region (all in
California); and four institutions in BOP’s Mid-Atlantic Region (all in

6

The Project Management Institute, The Standard for Program Management © (2006).

7

According to BOP officials, care-level categories are based on both medical treatment
capacity and proximity to an outside hospital. Care-level 1 facilities can treat limited
medical needs, and are generally about 40-60 miles from a hospital; care-level 2 facilities
can treat stable diseases, and are generally about 20-30 miles from a hospital; care-level
3 facilities can provide nursing care and assisted living, as well as mental health
treatment, and are generally about 5-10 miles from a hospital; care-level 4 facilities are
generally hospitals, of which there are six in BOP’s system.

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Maryland, Virginia, and West Virginia). Five of the nine institutions
contained multiple facilities which housed offenders classified at different
security levels. 8 At each institution, we obtained perspectives on
challenges from those officials responsible for the following activities:
•

•

•

conducting disciplinary hearings which could result in the
disallowance of sentence-reduction credit received by inmates for
good conduct while incarcerated;
administering BOP’s substance abuse treatment programs, including
the Residential Drug Abuse Treatment Program (RDAP) which
provides sentence reductions for eligible inmates who successfully
complete the program; and
reviewing inmates’ cases to make recommendations regarding the
length of placement in residential re-entry centers (RRCs), also known
as halfway houses, or in home detention at the end of an individual’s
sentence.

We also visited four RRCs in the Los Angeles and Washington, D.C.
metropolitan areas—the closest major metropolitan areas to the prisons
we visited, and thus serving inmates released to community corrections
from these prisons—to discuss with BOP community corrections officials
overseeing the operation of these RRCs and RRC managers any factors
that facilitate or hinder placing inmates in the community. We cannot
generalize our work from the facilities and offices we visited to BOP
facilities nationwide, but the information we obtained provides insights
into how BOP implements its discretionary authorities in various locations.
We conducted this performance audit from June 2011 to February 2012
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that

8

The nine institutions we visited contained the following 15 facilities housing offenders at
different security levels: 1 high-security facility, 3 medium-security facilities, 4 low-security
facilities, 5 minimum-security facilities, 1 facility housing female offenders of various
security levels, and 1 administrative facility housing both male and female inmates. BOP
designates certain institutions with special missions as “administrative,” such as the
detention of pretrial offenders; the treatment of inmates with serious or chronic medical
problems; or the containment of extremely dangerous, violent, or escape-prone inmates.
These institutions may house offenders at several different security levels.

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the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.

Background
BOP Population and
Institutions

In fiscal year 2012, BOP had a budget of about $6.6 billion for salaries
and expenses and as of December 2011, BOP had a staff of about
38,000, which includes administrative, program, and support staff
responsible for all of BOP’s activities nationwide. BOP houses inmates
across six geographic regions in 117 federal institutions, 15 privately
managed prisons, 185 RRCs (also known as halfway houses), and home
detention. 9 At the close of fiscal year 2011, about 94 percent of BOP’s
inmate population was incarcerated in either federal institutions or
privately managed prisons, operating at four different security level
designations: minimum, low, medium, and high. The designations depend
on the level of security and staff supervision the institution is able to
provide such as the presence of security towers; perimeter barriers; the
type of inmate housing, including dormitory, cubicle, or cell-type housing;
and the staff-to-inmate ratio. Some BOP institutions include multiple
prison facilities with different security classifications under common
management, in part to increase cost efficiencies. 10 According to BOP,
privately managed low-security facilities primarily house criminal aliens. 11
Figure 1 shows the distribution of BOP institutions, privately managed
prisons, and RRCs across BOP’s six geographic regions.

9

BOP contracts with four private corrections companies. BOP’s privately managed
prisons operate under performance-based contracts in accordance with some BOP
policies. BOP also has agreements with state and local governments and contracts with
privately operated facilities for the detention of federally adjudicated juveniles and for the
secure detention of some short-term federal inmates.

10

BOP has 13 federal correctional complexes systemwide that include separate prisons
under common management, and many prisons include an adjacent minimum-security
satellite camp under common management.

11

Criminal aliens are noncitizens convicted of crimes while in this country legally or
illegally.

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Figure 1: BOP Regional Map, Fiscal Year 2011

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To house inmates in community corrections locations, BOP contracts with
private organizations to manage 185 RRCs around the country. 12 These
RRCs allow BOP to house inmates outside of a prison environment to
either serve out their full sentence or their remaining sentence prior to
release in the community. 13 Inmates are authorized to leave for approved
activities, such as seeking employment, working, counseling, visiting, or
recreation, but are monitored 24 hours a day through sign-out
procedures, regular head counts, staff visits to the approved locations,
and random phone contacts. Inmates in RRCs are also required to work,
or be actively seeking work, and to pay a percentage of their salaries as a
subsistence fee to cover some of their expenses at the RRC. Some
federal inmates are placed on home detention at the end of their prison
term, either directly from an institution, or following some time in an RRC.
Home detention describes all circumstances under which an inmate is
serving a portion of his or her sentence while residing in his or her home.
Home detention inmates are held to strict schedules and curfews and are
monitored by a nearby RRC or the U.S. Probation Office through random
staff visits, phone contacts, and occasionally through the use of electronic
monitoring. 14 At the close of fiscal year 2011, about 5 percent of the
inmate population was housed in RRCs or home detention.

BOP Discretionary
Authorities That Can
Reduce a Prisoner’s Period
of Incarceration or Time in
BOP Custody

BOP has a number of discretionary authorities it can use to impact the
period during which an inmate is incarcerated or remains in BOP custody.
According to BOP officials, many of the programs that arise from these
authorities are primarily intended to rehabilitate inmates and prepare
them for reentry into society, as well as encourage good behavior while in
BOP custody. The authorities can be classified into two main categories:
(1) authorities that reduce the length of the inmate’s sentence, and (2)

12

As of December 1, 2011, BOP contracted with 105 providers to manage its inmates in
RRCs and home detention.

13

According to BOP officials, inmates serve out their full sentences in an RRC only if
recommended by the sentencing judge, if the inmate does not pose a threat to public
safety, and as bed space in RRCs allow. From fiscal years 2009 through 2011, 30
inmates served out their full sentences in an RRC.

14

BOP’s community-based programs are administered by staff of the Correctional
Programs Division (CPD) in Central Office (in Washington, D.C.), community corrections
regional management teams in each of BOP's 6 regional offices, and the employees of 22
community corrections management (CCM) field offices serving specific judicial districts
within their regions.

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authorities that allow BOP to transfer an inmate out of prison to serve the
remainder of his or her sentence in an RRC or home detention. Table 1
provides the statutory provisions allowing for BOP discretion to reduce a
federal prisoner’s period of incarceration. 15
Table 1: Statutory Provisions Available to BOP to Reduce a Federal Prisoner’s Period of Incarceration or Time in BOP
Custody
Discretionary flexibilities and associated statutory provisions

Description

Sentence credits and sentence reduction
Good Conduct Time (GCT)
18 U.S.C. § 3624(b)

BOP is authorized to award credit toward the service of an
inmate’s sentence, beyond the time served, of up to 54 days
per year of sentence served if the inmate has displayed
exemplary compliance with institutional disciplinary
regulations. To be eligible to earn credit, the inmate must be
serving a sentence of more than 1 year other than a term of
imprisonment for life.

Residential Drug Abuse Treatment Program (RDAP)
18 U.S.C. § 3621(e)

BOP is required to provide substance abuse treatment for
each inmate it determines has a treatable condition of
substance abuse. BOP must, subject to the availability of
appropriations, provide residential substance abuse treatment
(and make arrangements for appropriate aftercare) for all
eligible inmates, with priority for the treatment provided based
on proximity to release date. BOP may reduce the sentence of
an inmate convicted of a nonviolent offense who successfully
completes residential substance abuse treatment for a period
of up to 1 year.

15
Under 18 U.S.C. § 4102, the Attorney General is authorized to transfer offenders under
a sentence of imprisonment, on parole, or on probation to the foreign countries of which
they are citizens or nationals, and to delegate such authority to officers in DOJ. The
United States currently has treaties with 76 countries to return American citizens
incarcerated in those countries to the United States to serve out their sentences, and to
transfer foreign national inmates serving sentences in the United States to serve out their
terms in the countries where they are citizens or nationals. Within DOJ, BOP shares
responsibility with the Criminal Division, the United States Attorneys’ Offices, and the
United States Marshals Service for administering the treaty transfer program. BOP is
responsible for explaining the program to foreign national inmates, determining if a current
treaty agreement exists for interested inmates and if those inmates are eligible for
transfer, and preparing application packets for eligible inmates which are reviewed by the
Criminal Division’s International Prisoner Transfer Unit. Because DOJ’s Office of Inspector
General (OIG) conducted a separate review of this program during the course of our work,
we do not discuss this program in our report. See: Department of Justice, Office of
Inspector General, The Department of Justice’s International Prisoner Transfer Program
(Washington, D.C.: December 2011).

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Discretionary flexibilities and associated statutory provisions

Description

Modification of an Imposed Sentence
18 U.S.C. § 3582(c)

Upon motion of the Director of BOP, the court may reduce a
term of imprisonment after considering certain factors if it finds
that either (1) extraordinary and compelling reasons warrant
such a reduction; or (2) the inmate is at least 70 years of age,
has served at least 30 years in prison for the offense or
offenses for which the inmate is imprisoned, and a
determination has been made by the Director of BOP that the
inmate is not a danger to the safety of any other person or the
community; and that such a reduction is consistent with
applicable policy statements issued by the U.S. Sentencing
a
Commission (USSC). The Director may also motion the court
for an inmate who has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the USSC and the court may
reduce the term of imprisonment.

Weekend and Holiday Release
18 U.S.C. § 3624a

BOP is authorized to release inmates whose release date falls
on Saturday, Sunday, or a legal holiday on the last preceding
weekday.

Sentence Computation Authority to Allow Concurrent Service of
Federal and State Sentences
18 U.S.C. § 3584 (Multiple sentences of imprisonment)

If multiple sentences are imposed as the result of a single trial
from a single indictment, generally the terms run concurrently
(with a concurrent sentence, two or more sentences of
imprisonment are to be served simultaneously) unless the
federal court or a statute requires the terms to be served
consecutively. However, if multiple sentences are imposed as
a result of different trials, as when federal and state sentences
are imposed on a defendant, generally the terms run
consecutively (with consecutive sentences, two or more
sentences of imprisonment are to be served in sequence)
unless the federal court or a statute requires the terms to be
served concurrently. When both a federal and a state court
have imposed prison sentences on an offender, BOP may
credit time served in a state institution towards an inmate’s
federal sentence in certain circumstances.

Credit for Time Served in Custody
18 U.S.C. § 3585(b)

An inmate must be given credit toward his or her prison term
for any time spent in official detention prior to the date the
sentence commences as a result of the offense for which the
sentence was imposed, or as a result of any other charge for
which the inmate was arrested after commission of the offense
for which the sentence was imposed.

Transfer from prison to community setting
Residential Reentry and Home Detention
18 U.S.C. § 3624(c)

The Director of BOP must, to the extent practicable, ensure
that an inmate spends a portion of the final months of that
inmate’s term (not to exceed 12 months), under conditions that
will afford the inmate a reasonable opportunity to adjust to and
prepare for reentry into the community. This may include a
prisoner being placed in an RRC. In addition, a prisoner may
be placed in home detention for the shorter of 10 percent of
the term of imprisonment or 6 months.

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Discretionary flexibilities and associated statutory provisions

Description

Elderly Offender Pilot Program
42 U.S.C. § 17541(g)

The Attorney General was required to conduct a pilot program
during fiscal years 2009 and 2010 to determine the
effectiveness of removing eligible elderly offenders from a BOP
facility and placing such offenders on home detention until the
expiration of the prison term to which the offender was
sentenced.

Both sentence credit and transfer to community setting
Shock Incarceration Program
18 U.S.C. § 4046

BOP may place in a shock incarceration program (also known
as a boot camp) any person who is sentenced to a term of
imprisonment of more than 12, but not more than 30, months,
if such person consents to that placement. BOP discontinued
all shock incarceration programs in 2005, though it continues
to retain the statutory authority to institute such programs.
Source: GAO analysis of federal statutes.
a

Created in 1984, the United States Sentencing Commission (USSC) was charged with developing
the federal sentencing guidelines to limit disparities in sentencing among offenders with similar
criminal backgrounds found guilty of similar crimes.

BOP’s Use of
Authorities That Can
Reduce a Federal
Prisoner’s Period of
Incarceration Varies
Eligible Prisoners Can
Participate in RDAP in
Time to Complete the
Program; Few Receive the
Maximum Sentence
Reduction

BOP is required, subject to the availability of appropriations, to provide
residential substance abuse treatment and make arrangements for
appropriate aftercare for all eligible prisoners. 16 Generally, the process to
determine inmate eligibility for RDAP participation begins when inmates
express interest in the program. 17 In June 1995, BOP began offering
nonviolent participants a sentence reduction incentive of up to 12 months

16

18 U.S.C. § 3621(e). During the 500-hour institution component of RDAP, participants
are separated from the inmate general population in order to support prosocial attitudes
and behaviors and isolate program participants from negative peer pressure in the larger
prison environment.

17
Court documents, such as the Presentence Investigation Report, often include
substance use information, but other documentation may be sufficient, such as from a
medical provider, probation officer, or social service professional.

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for successful completion of the program. 18 The amount of sentence
reduction awarded upon completion is based on the length of an inmate’s
sentence. 19 Figure 2 displays the process by which inmates enter and
complete RDAP, and receive a sentence reduction if eligible.

18

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 32001,
108 Stat. 1796, 1896-98. RDAP was originally developed in 1989 and the first participants
completed the program in fiscal year 1990. Once requested, BOP is to determine an
inmate’s early release eligibility status based on a review of the inmate’s current offense
and prior convictions. BOP reviews current and prior offenses for both U.S. Code and D.C.
Code felony offenders. According to BOP headquarters officials, the legal review is
ordinarily completed within 30 days, but may take longer for more complicated cases.

19

BOP implemented the RDAP maximum sentence reduction categories based on an
inmate’s sentence length in fiscal year 2009 as a policy decision, but the first inmates to
receive sentence reductions based on the new policy completed the program in fiscal year
2010; the authorizing statute gives BOP discretion over how to provide up to a 12-month
sentence reduction to eligible RDAP participants.

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Figure 2: RDAP Participation Process

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According to BOP’s annual reports to Congress on substance abuse
treatment programs, during fiscal years 2009 and 2010 all eligible
inmates who expressed interest in RDAP were able to participate in the
program in time to complete it before their release from BOP custody.
BOP officials stated that all eligible inmates were again able to participate
in RDAP in fiscal year 2011. BOP estimates that 40 percent of inmates
entering federal custody each year will have a substance abuse disorder
and thus may be eligible to participate in RDAP, provided the other
eligibility criteria are met. 20 BOP data show that from fiscal years 2009
through 2011, on average, 18,709 inmates participated in RDAP in the 62
program locations throughout BOP each year. However, BOP reports
RDAP participation numbers as an aggregate count of every inmate who
participated in the program at some point during a given fiscal year. This
includes inmates who failed to complete the program—for example in
fiscal year 2011, according to BOP, 17 percent of inmates left the
program due to expulsion, withdrawal, disciplinary transfers, or other
reasons—and inmates who entered the program in a prior fiscal year or
who will complete the program in a subsequent fiscal year. As a result,
inmates may be double-counted—reported as participants in multiple
fiscal years. The participation numbers reported annually to Congress
thus do not reflect how many individual inmates participate in or
successfully complete RDAP each fiscal year. However, BOP provided us
with data showing that from fiscal years 2009 through 2011, on average,
6,875 inmates completed RDAP each year.
While BOP has reported that all eligible and interested inmates are able
to complete RDAP before their release from BOP custody, those eligible
for a sentence reduction incentive for successful completion are generally
unable to complete the program in time to benefit from the maximum
allowable reduction. From fiscal years 2009 through 2011, 15,302 RDAP
participants completed the program and were eligible to receive a
sentence reduction. Of those 15,302 participants eligible for a sentence
reduction, 14,034 were eligible for a maximum sentence reduction of 12
months, 596 were eligible for 9 months, and 672 were eligible for 6
months. However, in these three fiscal years, 2,846 inmates (19 percent)
received the maximum sentence reduction that corresponded to their
sentence length, while 190 (1 percent) received no sentence reduction.

20

BOP’s projection is based on a study of inmates entering federal custody from fiscal
years 2002 through 2003.

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GAO-12-320 BOP Use of Sentencing Flexibilities

The average sentence reduction received by eligible participants was 8.0
months. 21
Eligible participants generally do not receive the maximum allowable
sentence reduction because, according to BOP officials, by the time they
complete RDAP, they have fewer months remaining on their sentences
than the maximum allowable reduction. For example, to allow enough
time for completion of RDAP in the institution (9 to 12 months) and
transitional drug abuse treatment in an RRC, BOP policy recommends
that Drug Abuse Program (DAP) Coordinators initiate the eligibility
screening process no less than 24 months prior to the inmate’s projected
release date. However, some inmates may have to wait for clinical
interviews, for program slots to open, or both. 22 For example, at one
institution we visited, BOP officials told us they had a queue of 50 inmates
waiting to be interviewed by the DAP Coordinator to determine program
eligibility. At another institution we visited, BOP officials told us they had a
queue of 66 inmates who had been approved for participation and were
waiting for program slots to open. According to BOP, delays resulting
from this systemwide demand can prevent timely inmate entry into RDAP
and can reduce the number of eligible inmates receiving the maximum
allowable sentence reduction. 23

21

The maximum average sentence reduction would be 11.6 months, since 1,268 of the
15,302 inmates who completed the program in fiscal years 2009 through 2011 were
eligible for a maximum reduction of 6 or 9 months, based on the length of their sentences.

22

The RDAP program is available in 62 locations. BOP officials stated that potential
needs for substance abuse treatment are considered by BOP in initial designation to a
BOP institution following sentencing. Also, eligible inmates residing in facilities without
RDAP may have to wait to transfer to a facility offering the program.

23

According to BOP officials, inmates enter RDAP as cohorts, with 24 inmates per staff
member, and programs may have several cohorts participating concurrently. Inmates on
the waiting list wait until the next available cohort begins.

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BOP Refers Eligible
Prisoners to Community
Corrections, but Has Not
Assessed Home Detention
to Determine Potential
Cost Savings

As a part of an inmate’s reintegration into the community, BOP attempts
to provide all eligible inmates the opportunity to participate in community
corrections, defined as RRCs and home detention services. 24 BOP’s
program statements for RRCs and home detention lay out the steps all
BOP institutions are required to follow to assess each inmate for
community corrections suitability and appropriate length of placement.
During an assessment for RRC placement, BOP policy requires
prerelease RRC placement decisions be made on an individual basis and
conducted in a manner consistent with certain statutory criteria. The
criteria are: (1) the resources of the facility contemplated, (2) the nature
and circumstances of the offense, (3) the history and characteristics of
the prisoner, (4) any statement by the court that imposed the sentence,
and (5) any pertinent policy statement issued by the USSC. 25 According
to BOP officials, these factors are applied to all inmates regardless of
security level or offense. However, to place inmates on home detention,
BOP uses these factors as well as other factors stated in its home
detention program statement. The Program Statement requires
community corrections personnel to consider whether:
•

•

•
•
•

BOP has applied a public safety factor, indicating that the inmate has
demonstrated certain behaviors that require increased security
measures to ensure the protection of society;
BOP has designated the inmate as a Central Inmate Monitoring case,
indicating that the inmate requires a higher level of review prior to any
movement outside the institution;
the inmate’s case is sensitive or high profile and might generate
undue public concern;
the inmate has a history of escape or prior community corrections
failure; or
the inmate is unlikely to be employed.

24

The Second Chance Act of 2007, Pub. L. No. 110-199, § 251(a), 122 Stat. 657, 692-93,
amended 18 U.S.C. § 3624(c) to enable BOP to place inmates in community corrections
for up to 12 months (previously limited to 6 months or 10 percent of an inmate’s
sentence), and home detention for the shorter of 10 percent of the term of imprisonment
or 6 months. The statute does not guarantee an inmate a 1-year RRC placement or
placement in home detention for any portion of the inmate’s sentence, but only directs
BOP to consider placing an inmate in a RRC for up to the final 12 months of the sentence,
and to consider using home detention as part of an inmate’s reiintegration into the
community.

25

18 U.S.C. § 3621(b).

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GAO-12-320 BOP Use of Sentencing Flexibilities

BOP reported that it begins the process for community corrections
placement approximately 17 to 24 months prior to an inmate’s projected
release date.
Based on the most recently available data, during fiscal year 2010, almost
29,000 inmates completed their sentences through community
corrections. Of those inmates who were placed in community corrections,
over 60 percent were placed in RRCs only while the remainder received a
combination of RRC placement followed by home detention, or home
detention only. For those inmates who did not receive placement in
RRCs, BOP officials stated that these inmates, while eligible, may decline
RRC placement or RRCs may not be able to accommodate them. For
example, BOP officials stated that sex offenders are difficult to place
since there are only a limited number of RRCs able to accept them. In
fiscal year 2010, the average length of stay for inmates who were placed
in community corrections ranged from approximately 147 days for those
inmates who were placed in an RRC followed by home detention, to 95
days for inmates placed in an RRC not followed by home detention.
Moreover, inmates who are eligible for home detention can be placed for
up to 6 months or 10 percent of their sentences, whichever is less. In
fiscal year 2010, of the 11,239 inmates who were placed in home
detention either directly or following an RRC placement, 119 served either
6 months or 10 percent of their sentence in home detention. According to
BOP officials at institutions we visited, decisions about length of stay in
home detention are made on an individualized basis. It may take some
inmates longer than others to have the necessary resources in place—
such as a residence, a supportive family, and a job—to increase the
likelihood of a successful home detention placement. In addition, inmates
who have served longer sentences often have more serious needs upon
release from prison that can best be met through participation in
programs offered by RRCs rather than in home detention. Table 2 shows
the number of eligible inmates placed in community corrections and the
average length of stay during fiscal years 2009 and 2010. 26

26

According to BOP officials, data for fiscal year 2011 are not yet available because, as of
December 2011, some inmates placed during fiscal year 2011 have not yet completed
their sentences and been released from community corrections and BOP custody.

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GAO-12-320 BOP Use of Sentencing Flexibilities

Table 2: Number of Eligible Inmates Placed in Community Corrections Who Complete Their Sentences, and Average Length
of Stay for Fiscal Years 2009 and 2010
Fiscal Year 2009

Fiscal Year 2010

Number placed

Average length of
stay (days)

Number placed

Average length of
stay (days)

RRCs only

17,618

96

17,672

95

RRCs then home detention

10,452

150

11,094

147

143

83

145

103

28,213

116

28,911

115

Type of placement

Home detention only
Total placements in
community corrections

Source: GAO analysis of BOP RRC and home detention utilization data.

According to BOP officials, strategic goals are set for RRC utilization at
each security level BOP operates. 27 From fiscal years 2009 through 2011,
BOP set goals of 65 percent utilization for high security, 70 percent for
medium security, 75 percent for low security, and 85 percent for minimum
security. According to BOP officials, high-security inmates may be more
difficult to place than their counterparts at other security levels, due to the
greater likelihood that inmates with high-security classifications are more
likely to be violent offenders than inmates at other security levels. BOP
documented that in fiscal years 2009 through 2011 it exceeded its goals
in each security level. 28
The average length of stay in an RRC for inmates at each security level
also varied, with minimum-security inmates receiving longer stays than
inmates at other security levels. Recognizing that inmates at higher risk
for reoffending may be placed less often and may have shorter lengths of
placements than inmates at lower risk of reoffending, a June 2010
memorandum from the BOP Correctional Programs Division states that
higher risk inmates are more likely to benefit from RRC placement than
lower risk inmates, in terms of their likelihood of reoffending. 29 Therefore,
the memorandum recommends that RRC resources be focused on those
higher risk inmates most likely to benefit from placements.

27

Utilization refers to the percentage of eligible inmates BOP is able to place in RRCs.

28

BOP Residential Re-Entry Utilization Reports.

29

Memorandum for Chief Executive Officers: Revised Guidance for Residential Reentry
(RRC) Placements. Assistant Director Scott Dodrill, BOP Correctional Programs Division,
June 24, 2010.

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GAO-12-320 BOP Use of Sentencing Flexibilities

BOP has also recently developed strategic goals for home detention. For
fiscal year 2011, BOP had a goal to place 40 percent of all inmates
eligible for community corrections in home detention. This goal includes
direct designations to home detention as well as a combination of
placement in an RRC followed by home detention. Moreover, in a June
2010 memorandum, BOP management encouraged institutions to
consider opportunities to place minimum-security inmates in home
detention. Specifically, the memo states that institution staff should
evaluate minimum-security inmates to determine if direct transfer from an
institution to home detention is appropriate. BOP officials told us that
placing more minimum-security inmates in home detention would free up
space in RRCs for higher risk inmates. Although BOP does not track
home detention placements by security level, BOP data show that most of
the inmates placed directly to home detention have a minimum-security
designation. 30
BOP reported that housing inmates in community corrections was more
costly, on a per diem basis, than housing inmates in minimum- and lowsecurity facilities. Based on the most recently available data, in fiscal year
2010 the daily cost of a community corrections bed on average was
$70.79. Only the per diem costs for inmates in medium- and high-security
facilities exceeded per diem costs for community corrections. 31 For
example, BOP’s per diem costs to house inmates in institutions of varying
security levels were $57.55 for minimum, $69.53 for low, $71.91 for
medium, and $92.76 for high security as reflected in figure 3.

30

Although BOP does not routinely track home detention placement by security level,
BOP was able to provide us with a snapshot of the data as of November 25, 2011. Of
inmates on home detention, 1 percent were designated as high security, 14 percent as
medium security, 22 percent as low security, and 63 percent as minimum security.

31

We have ongoing work looking at facility and RRC costs in more detail, which we will
report on later this year.

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GAO-12-320 BOP Use of Sentencing Flexibilities

Figure 3: Daily Cost per Inmate of BOP Facilities Compared with Community Corrections

For inmates in community corrections, the RRC is required to collect a
subsistence fee of 25 percent of an inmate’s gross income if that inmate
is employed, to help defray the costs of community corrections

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GAO-12-320 BOP Use of Sentencing Flexibilities

placement. The subsistence payment is to be subtracted from the amount
the RRC bills BOP for providing supervision of inmates. For example, one
RRC we visited stated that they collected about $75,000 in fiscal year
2010 from working inmate residents. This translates to a little over $6,000
a month subtracted from the RRC’s monthly billing statement.
In contracting with RRCs for community corrections, BOP pays a rate of
50 percent of the overall per diem rate negotiated with the RRC for each
inmate in home detention. For example, if BOP pays a contractor the
average community corrections per diem rate of $70.79, BOP would pay
$35.39 per day for that contractor’s supervision of each inmate in home
detention. However, according to BOP, the agency does not require
contractors to provide the actual costs for home detention services as
part of their contract and therefore does not know the cost of home
detention. In addition, officials at two of the RRCs we visited told us that
they were uncertain as to the actual costs of the home detention
supervision services they provided to BOP and had not explicitly
examined these costs.
BOP officials stated that they are currently reviewing open solicitations
and new requirements for RRC contracts, to determine locations in which
cost proposals could be amended. According to BOP, the amended
solicitations would require potential contractors to submit separate line
items outlining the costs for RRC beds and home detention services
separately. BOP has stated that it has a process underway to start to
review contractors’ proposals that would separate the price of home
detention from the price of RRC beds, but BOP has not provided
documentation of the review process or time frames and milestones for
when it expects to finalize the process for requiring contractors to
separate the price. In accordance with standard practices for program
and project management, specific desired outcomes or results should be
conceptualized and defined in the planning process as part of a road
map, along with the appropriate projects needed to achieve those results,
and milestones. 32 Without a plan for the development of this process,
including time frames and milestones for when it will require contractors
to submit separate prices for RRC beds and home detention services,
BOP has no road map for how this will be achieved. Furthermore, setting
time frames for developing its process could better position BOP to set a

32

The Project Management Institute, The Standard for Program Management © (2006).

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GAO-12-320 BOP Use of Sentencing Flexibilities

level of reimbursement to the RRCs that reflects the price of home
detention, as well as weigh the costs and benefits of alternative options
for supervising inmates in home detention.

Most Inmates Earn the
Maximum Sentence
Reduction for Good
Conduct, and BOP Has
Proposed Changes to the
Amount

Most eligible inmates receive all of their potential GCT credit for
compliance with institutional disciplinary regulations. An inmate who is
serving a term of imprisonment of more than 1 year, other than a term of
life imprisonment, may receive credit toward the service of his or her
sentence, beyond the time served, known as GCT credit. Inmates who
have earned, or are making satisfactory progress toward earning, a high
school diploma or equivalent degree are eligible to receive 54 days of
sentence credit at the end of each year served; otherwise, inmates are
eligible to receive 42 days of sentence credit at the end of each year
served. Sentence credit is prorated for the last partial year of a sentence
served. From fiscal years 2009 through 2011, BOP data show that about
87 percent of inmates had earned all of their available GCT credit by the
end of each year, and an additional 3 percent of inmates earned at least
90 percent of the maximum available GCT credit. 33
Inmates may be disallowed from earning a certain number of days of
GCT credit for committing disciplinary infractions of a certain severity
level. An institution’s Disciplinary Hearing Officer (DHO) is the sole official
with the authority to disallow an inmate’s GCT credit. If the DHO finds an
inmate guilty of an infraction following a disciplinary hearing, the amount
of GCT credit he or she disallows is to be based on the severity of the
infraction and the number of times an inmate has committed an offense of
the same level of severity. 34 For example, an inmate has to commit a lowseverity infraction three times within the same year for disallowance of
GCT credit to occur. However, an inmate who commits a greatest severity
infraction once is subject to GCT disallowance. Table 3 shows the GCT
credit disallowance guidelines by infraction severity level.

33

BOP tracks inmates’ earned GCT credit throughout their terms of imprisonment.

34

DHO hearings are held for infractions at the 100-level (greatest severity) and 200-level
(high severity) as well as for repeated lower severity infractions or any cases referred by
institution staff. Inmates may appeal the DHO’s decision through BOP’s administrative
remedy process, which may include reviews at the regional and headquarters levels.

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GAO-12-320 BOP Use of Sentencing Flexibilities

Table 3: GCT Credit Disallowance Guidelines, by Infraction Severity Level
a

Infraction severity level

Infraction examples

Repetition during year Minimum disallowance

100-Level (Greatest severity)

Assaults; escapes; riots; drug or
alcohol use

1

41 days or 75% of remaining GCT

200-Level (High severity)

Fights; bribes; theft; tattooing

1

27 days or 50% of remaining GCT

300-Level (Moderate severity)

Insolence; gambling; lying; gang
activities

2

14 days or 25% of remaining GCT

400-Level (Low severity)

Obscene language; disruptive
conduct

3

7 days or 12.5% of remaining GCT

Source: BOP Program Statement 5270.09: Inmate Discipline Program.
a

If an inmate has less than 54 days of GCT credit remaining during a given year, the minimum
disallowance for an infraction is set at a percentage of the inmate’s remaining GCT credit.

For certain infractions, GCT credit that was earned in prior years may
also be forfeited. 35 GCT credit that has been disallowed or forfeited may
not later be restored. The DHO has discretion to depart from the GCT
credit disallowance guidelines or to forfeit an inmate’s earned GCT credit
based on mitigating or aggravating circumstances. If an inmate is a firsttime offender and is involved in BOP programs, demonstrating a
commitment to rehabilitation, a DHO may elect to reduce the amount of or
refrain from a GCT credit disallowance. Alternatively, if an inmate is a
repeat offender or commits an egregious act, the DHO may increase the
GCT credit disallowance or forfeit the inmate’s earned GCT credit.
Whenever the DHO departs from the disallowance guidelines, he or she
is required to provide justification for the departure and an explanation of
the mitigating or aggravating circumstances in the DHO hearing report
filed with the regional management office. 36 For example, in fiscal year
2011, BOP DHOs departed from the disallowance guidelines 17,571
times, or in 37 percent of DHO hearings, most often disallowing less GCT
credit than called for in the corresponding guideline. 37 The six DHOs we
spoke with in BOP’s Western and Mid-Atlantic regions described the
discipline process in consistent terms and five of the six DHOs recounted
the same types of mitigating and aggravating circumstances they
35

Earned GCT credit does not vest until an inmate’s release date, meaning that all credit
is vulnerable to forfeiture for disciplinary cause.

36

The decision of the DHO is final and subject to review by the Regional Director to
ensure conformity with the discipline policy.

37

In fiscal year 2011, of the 17,571 times DHOs departed from the guidelines, 14,227
were downward departures and 3,344 were upward departures.

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GAO-12-320 BOP Use of Sentencing Flexibilities

generally considered for departures. 38 For example, DHOs cited first-time
offenses and being taken advantage of as common mitigating
circumstances. One DHO we spoke with reduced a newer inmate’s
disallowance because the inmate was manipulated by a fellow inmate to
make a prohibited phone call for him. DHOs cited repeated offenses,
egregious acts, and violence against correctional officers as common
aggravating circumstances. One DHO we spoke with recalled forfeiting
over 300 days of an inmate’s earned GCT credit after the inmate was
involved in a prison riot. The six DHOs we spoke with told us that the
disallowance guidelines were clear, and that the discretion to depart from
the guidelines offered them sufficient flexibility and latitude to successfully
impact inmate behavior.
Although most prisoners receive all of their potential GCT credit, BOP’s
method of awarding GCT credit at the end of each year an inmate serves
results in a maximum of 47 days of GCT credit earned per year of
sentence imposed rather than the 54 days that inmates who have
contested BOP’s method in court maintain was the original intent of the
statute. 39 Under the Sentencing Reform Act, the USSC established
sentence guidelines with the understanding that inmates would receive
GCT credit so that their actual time served would be 85 percent of the
length of the sentence imposed by the judge, assuming good behavior. 40
BOP’s method of awarding GCT, however, results in inmates serving
more than 85 percent of their imposed sentences, even after earning the
maximum GCT credit, as can be seen in table 4, for a hypothetical
sentence of 10 years imposed by the sentencing judge.

38

One of the six DHOs did not recall departing from the guidelines in recent years.

39

As authorized in statute, 18 U.S.C. § 3624(b), BOP awards “up to 54 days at the end of
each year of the prisoner’s term of imprisonment,” or 54 days per year of sentence served.
As applied by BOP, this results in 47 days earned per year of sentence imposed because
inmates do not earn GCT credit for years they do not ultimately serve due to being
released early.

40

United States Sentencing Commission, Supplementary Report on the Initial Sentencing
Guidelines and Policy Statements, 23 (1987).

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GAO-12-320 BOP Use of Sentencing Flexibilities

Table 4: Illustration of BOP’s Calculation of GCT Credit for an Imposed Sentence of
10 years for an Inmate Earning the Maximum GCT Credit
Sentence completed

GCT granted at end of
year

Time remaining on sentence, in
years and days

0 years

Not applicable

10 years (3,650 days)

1 year

54

8 years, 311 days

2 years

54

7 years, 257 days

3 years

54

6 years, 203 days

4 years

54

5 years, 149 days

5 years

54

4 years, 95 days

6 years

54

3 years, 41 days

7 years

54

1 year, 352 days

8 years

54

298 days

Inmate released during
38 (GCT for the
9th year, after completing remaining 298 days is
8 years and 260 days
prorated to conform to
the ratio of 54 days per
365 served)
Total GCT days granted

470

Total GCT days granted
per year of sentence
imposed

470/10=47

Total time served (days)

3,650-470=3,180

Percent of sentence
served

3,180/3,650 = 87.1 %

Source: GAO analysis of BOP GCT credit calculation.

The U.S. Supreme Court upheld BOP’s methodology against a challenge
brought by inmate petitioners. 41 However, BOP officials told us that the
agency was supportive of amending the statute, and had submitted a
legislative proposal to Congress such that 54 days would be provided for
each year of the term of imprisonment originally imposed by the judge,
which would result in inmates serving 85 percent of their sentence. 42 BOP

41

Barber v. Thomas, 130 S. Ct. 2499 (2010).

42

The additional credit would be awarded retroactively to inmates sentenced under the
Sentencing Reform Act prior to the legislative change. For the hypothetical inmate with a
10-year sentence described in table 4, the inmate would receive a total of 540 days of
GCT. Thus the inmate would serve 3,110 days (85 percent) of the 3,650 days sentence
imposed by the judge.

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GAO-12-320 BOP Use of Sentencing Flexibilities

provided us estimates in December 2011 showing that if the GCT credit
allowance was increased by 7 days, as proposed, BOP could save over
$40 million in the first fiscal year after the policy change from the early
release of about 3,900 inmates. As of December 2011, the legislative
proposal had not been introduced on the floors of the House or Senate. 43

BOP Has Used Other
Authorities Less
Frequently to Reduce
Federal Prisoners’ Periods
of Incarceration

Modification of an imposed sentence: BOP has authority to motion the
court to reduce an inmate’s sentence in certain statutorily authorized
circumstances, but that authority is implemented infrequently, if at all.
•

The court, upon motion of the Director of BOP, may reduce the term
of imprisonment after considering certain statutory factors to the
extent that they are applicable, 44 if it finds that “extraordinary and
compelling reasons warrant such a reduction” (also known as
“compassionate release”) and the reduction is consistent with
applicable policy statements issued by the USSC. 45 According to BOP
officials, the Director has motioned sentencing judges for inmates’
early releases in a limited number of cases. For instance, BOP has
historically interpreted “extraordinary and compelling circumstances”
as limited to cases where the inmate has a terminal illness with a life
expectancy of 1 year or less or has a profoundly debilitating medical
condition. The USSC issued guidance that listed a number of
additional circumstances, such as the death or incapacitation of the
inmate’s only family member capable of caring for the inmate’s minor
child or children. 46 As of December 2011, BOP had not revised its
written policy to explicitly include all of the circumstances noted in the
USSC guidance although, according to BOP officials, the agency is
reviewing two cases that would fall within these circumstances. Where
“extraordinary and compelling circumstances” may exist, inmates

43

Second Chance Reauthorization Act of 2011, S.1231, 112th Cong. § 4(f) proposes to
amend certain statutory provisions related to good conduct time in 18 U.S.C. § 3624(b)(1).
The bill was reported out of the Senate Judiciary Committee on July 21, 2011, and is
awaiting full Senate action. Similar legislation has not yet been introduced in the House.

44

18 U.S.C. § 3553(a).

45

18 U.S.C. § 3582(c)(1)(A)(i).

46

Under 28 U.S.C. § 994(t), the USSC, in promulgating general policy statements
regarding the sentencing modification provisions in 18 U.S.C. § 3582(c)(1)(A), is required
to describe what should be considered extraordinary and compelling reasons for sentence
reduction, including the criteria to be applied and a list of specific examples.

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GAO-12-320 BOP Use of Sentencing Flexibilities

•

•

generally must submit a request explaining their circumstances and
their plans for housing, financial support, and medical care if granted
an early release. The request is to proceed through multiple layers of
review, including the inmate’s warden, the Regional Director, BOP’s
Office of General Counsel, and the BOP Director, who may ultimately
motion the court. 47 BOP officials recorded that from calendar years
2009 through 2011, 55 requests for early release were approved by
the BOP Director and brought as motions to a sentencing judge out of
89 requests approved at lower levels and received at BOP
headquarters. 48
The court, upon motion of the Director of BOP, may reduce a prison
term after considering certain statutory factors to the extent that they
are applicable, if (1) an inmate is over 70 years old, (2) has served at
least 30 years in prison pursuant to certain sentences imposed by
statute, 49 (3) a determination has been made by the BOP Director that
the inmate is not a danger to the safety of any other person or the
community as provided by statute, 50 and (4) such a reduction is
consistent with applicable policy statements issued by the USSC. 51
However, according to BOP officials, since the authority was enacted,
BOP has had no inmates in its custody meeting these criteria and is
considering how to implement this authority in the future if an inmate
qualified.
Generally, where a term of imprisonment is based upon a sentencing
range that has subsequently been lowered by the USSC, upon motion
of the BOP Director, the court may reduce the term of imprisonment. 52
According to BOP officials the BOP Director does not directly motion
the sentencing judge because this is generally accomplished by the
U.S. Attorney’s Office as the litigating body of DOJ. In addition, BOP
officials also stated that it is not necessary for the BOP Director to

47

A denial at the warden or Regional Director level may be appealed within BOP through
an administrative relief process. A denial by BOP’s Office of General Counsel or Director
is considered a final agency decision and can be appealed by motion to the federal court.

48

Additionally, as of December 2011, five requests submitted in fiscal year 2011 were still
under review at BOP headquarters.

49

18 U.S.C. § 3559(c).

50

18 U.S.C. § 3142(g).

51

18 U.S.C. § 3582(c)(1)(A)(ii).

52

18 U.S.C. § 3582(c)(2). The court may also act upon the motion of the defendant or its
own motion to reduce the term of imprisonment.

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GAO-12-320 BOP Use of Sentencing Flexibilities

motion the judge because inmates and their counsel generally initiate
the process. BOP supports the process in other ways, including
educating inmates about the relevant guidelines changes, notifying
the U.S. Attorneys Offices if inmates who appear to be eligible are
missed, and processing inmate sentence reductions if granted by a
sentencing judge. BOP has estimated that the retroactive change to
the sentencing guidelines for crack cocaine offenses that went into
effect on November 1, 2011, will result in 2,391 additional inmates
being released from BOP custody from fiscal years 2012 through
2014, yielding an estimated cost savings of $160 million. 53
Early release prior to a weekend or holiday: BOP releases inmates on
the last preceding weekday prior to a release date that falls on a
Saturday, Sunday, or legal holiday.
Shock Incarceration Program: Although BOP retains the authority to
operate the shock incarceration program, also known as boot camps, it
discontinued the program in 2005 due to its cost and research showing
that it was not effective in reducing inmate recidivism. Nonviolent,
volunteer, minimum-security inmates serving sentences of more than 12
months but not more than 30 months were eligible for the program, which
combined features of military basic training with traditional BOP
correctional values to promote personal development, self-control, and
discipline. 54 Throughout the typical 6-month program, inmate participants
were required to adhere to a highly regimented schedule of strict
discipline, physical training, hard labor, drill, job training, educational
programs, and substance abuse counseling. BOP provided inmates who
successfully completed the program and were serving sentences of 12 to
30 months with a sentence reduction of up to 6 months. All inmates who
successfully completed the program were eligible to serve the remainder
of their sentences in community corrections locations, such as RRCs or

53

A similar retroactive change to the sentencing guidelines for crack cocaine went into
effect on November 1, 2007. As of June 2011, the USSC reported that of the 25,736
inmate applicants for a sentence reduction, 16,511 (64.2 percent) had been granted.
Eligible inmates received an average sentence reduction of 26 months. The USSC was
able to determine the origin of the motion for 15,016 of the inmates who were granted a
sentence reduction. The BOP Director brought the motion in none of those cases. U.S.
Sentencing Commission Preliminary Crack Cocaine Retroactivity Data Report, June 2011.

54

Inmates serving sentences of 30 to 60 months and within 24 months of their projected
release dates were also eligible to participate in the program, but were not eligible for the
sentence reduction upon completion.

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GAO-12-320 BOP Use of Sentencing Flexibilities

home detention. A study of one of BOP’s shock incarceration programs,
published in September 1996, found that the program had no effect on
participants’ recidivism rates. 55 According to BOP officials, those and
other evaluation findings and the cost of the program led BOP to
discontinue its use in 2005.
Elderly Offender Pilot Program: Authorization for BOP’s elderly
offender home detention pilot program expired in September 2010.
Generally, the 2-year pilot program enabled BOP to transfer to home
detention inmates who were at least 65 years old, had served at least 10
years and 75 percent of their non-life sentences, had no history of
violence, sexual offenses, or escape or attempted escape from a BOP
institution, and who BOP determined would be of no substantial risk of
engaging in criminal conduct or endangering any person or the public if
released and with respect to whom BOP had determined that release to
home detention will result in a substantial net reduction of costs to the
federal government. 56 During the program, 71 inmates were transferred to
home detention. The statute requires the Attorney General to monitor and
evaluate each eligible elderly offender placed on home detention, and
report to Congress concerning the experience with the program.
According to BOP officials, this report has not been completed. We have
ongoing work looking at the results and costs of the pilot in more detail,
which we will report on later this year.
Concurrent versus consecutive sentences: When both a federal and a
state court have imposed prison sentences on an offender, BOP has the
authority to credit time served in a state institution towards an inmate’s
federal sentence in certain circumstances, thus resulting in a concurrent
sentence, but this authority applies to a relatively limited number of
inmates. 57 According to BOP’s program statement, multiple terms of
imprisonment imposed at different times run consecutively unless the

55

Federal Bureau of Prisons, An Evaluation of the Federal Bureau of Prisons Lewisburg
Intensive Confinement Center (September 1996).

56

42 U.S.C. § 17541(g)(5)(A).

57
With a concurrent sentence, two or more sentences of imprisonment are to be served
simultaneously. For example, generally, if a defendant receives concurrent sentences of
10 years and 15 years, the total amount of time for imprisonment is 15 years.

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federal sentencing judge orders that they run concurrently. 58 This includes
cases when a federal judge has not stated whether a state and federal
sentence should run concurrently or consecutively. However, BOP may
review, or the inmates may petition BOP to review, their cases to
determine a federal sentencing judge’s intent. BOP reviews the inmate’s
sentencing documents and custody history, and may also contact the
federal sentencing judge to determine whether the judge intended that the
state and federal sentences should be served consecutively or
concurrently. For example, of the 538 cases BOP reviewed in fiscal year
2011, 99 requests to serve sentences concurrently were granted, for a
total of about 118,700 days of sentence credit, 386 were not granted, and
53 were still under review as of the end of fiscal year 2011. 59
Credit for criminal custody: BOP has the authority to grant credit for
time served in criminal custody (such as time spent awaiting trial), and
according to BOP policy, it considers detention by Immigration and
Customs Enforcement (ICE) for the purposes of deportation to be
administrative custody until criminal charges are brought against a
detainee. According to BOP officials, BOP reviews inmate records for any
criminal custody time that could be credited towards an inmate’s federal
sentence. BOP reviewers may contact ICE for clarification of an inmate’s
custody record, but, according to BOP officials, the various ICE districts
keep records differently and a clear determination of when a federal
charge was filed and an inmate’s criminal custody began may be difficult
to achieve.

58

With consecutive sentences, two or more sentences of imprisonment are to be served
in sequence. For example, generally, if a defendant receives consecutive sentences of 10
years and 12 years, the total amount of time for imprisonment is 22 years.

59

Although BOP considers the federal judge’s recommendation, if obtained, BOP officials
stated that each case is evaluated on an individual basis, using factors such as the history
and characteristics of the prisoner, the resources of state facilities where the inmate will
be serving the federal sentence concurrent with the state sentence, the inmate’s
disciplinary record while at the state institution, and whether the federal statute under
which an inmate is convicted precludes the sentences from being served concurrently, for
example, conviction for aggravated identity theft combined with a conviction for any other
offense.

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GAO-12-320 BOP Use of Sentencing Flexibilities

Inmate Eligibility and
Lack of Capacity
Impact BOP’s Use of
Certain Flexibilities
Certain Inmates’
Ineligibility for Community
Corrections Impacts BOP’s
Use of RRCs and RDAP

BOP officials cited inmate ineligibility for placement in community
corrections as the number one reason that all inmates do not get released
through RRCs and one of the chief reasons that some inmates are
precluded from participating in RDAP. 60 Specifically, BOP’s RRC program
statement prohibits certain inmates from placement in an RRC. For
example, inmates with detainers, with sentences of 6 months or less, who
refuse to satisfy BOP’s Financial Responsibility Program, or who are in
civil commitment status are all ineligible for RRC placement. 61 According
to BOP, inmates with detainers are deemed inappropriate for placement
in community corrections due to the increased risk of escape and for
those with immigration detainers, the likelihood of deportation. Moreover,
all inmates who have financial obligations, whether court-ordered
restitution, court fees, or tax liabilities, must comply with the Financial
Responsibility Program to participate in programming including
community corrections. 62 This ineligibility for RRC placement also
disqualifies an inmate from placement in home detention. Figure 4 shows
the number of inmates ineligible for RRC placement from April 2008 to
March 2011.

60

To participate in the RDAP program, inmates must be able to complete all components
of the program, including the RRC portion.

61

A detainer is a document issued by a law enforcement entity, a jail, or correctional
facility to seek custody of an individual for purposes of instituting legal proceedings. The
Financial Responsibility Program assists inmates in meeting any financial obligations
imposed by the sentencing court. An inmate who has a commitment status is held as a
material witness; held due to an administrative commitment (holdover and pretrial
inmates); or held by BOP for ICE.

62

The Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, the
Victims of Crime Act of 1984, Pub. L. No. 98-473, 98 Stat. 2170, the Comprehensive
Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 and the Federal Debt
Collection Procedures Act of 1990, Pub. L. No. 101-647, 104 Stat. 4933, require a diligent
effort on the part of all law enforcement agencies to collect court-ordered financial
obligations.

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GAO-12-320 BOP Use of Sentencing Flexibilities

Figure 4: Number of Inmates Ineligible for RRC placement from April 2008 to March 2011

a

Data provided by BOP for the following periods: 2009: April 1, 2008, to March 31, 2009; 2010: April
1, 2009, to March 31, 2010; 2011: April 1, 2010, to March 31, 2011.

b

Some inmates are counted in more than one category.

BOP officials stated that certain offenses committed by inmates may also
make it difficult for BOP to place them in RRCs. For example, according
to BOP officials, some RRCs are required to enter into agreements with
communities regarding the type of inmates they will house and some
communities have enacted local laws that prohibit the placement of
certain inmates such as sex offenders and arsonists in a communal
setting. Other reasons inmates may not be placed in RRCs include the
inmate’s refusal to be placed or the inmate’s medical or mental health
needs that could not be accommodated at the RRC. According to BOP
officials, inmates may refuse RRC placement for a variety of reasons but
the reasons for refusal cited most often by officials during our site visits to
BOP facilities included:

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GAO-12-320 BOP Use of Sentencing Flexibilities

•
•
•

some RRC accommodations are perceived by some inmates to be
subpar compared to prisons;
some minimum-security and low-security inmates do not want to
reside in RRCs with higher security inmates; and
some inmates do not want to pay the 25 percent subsistence fee.

To participate in RDAP, inmates must be able to complete both the
institution and the RRC components of the program. As a result, inmates
who are prohibited from transferring to RRCs are excluded from RDAP.
For instance, BOP estimates that 2,500 criminal aliens would participate
in RDAP each year, but are ineligible due to immigration detainers. Prior
to a 1996 BOP policy change, inmates with detainers could complete the
program by participating in transitional treatment within a BOP institution.
However, according to BOP officials, transitional treatment within an
institution is ineffective because the inmate remains sheltered from the
partial freedoms and outside pressures experienced during an RRC
placement.
Realizing that potential cost savings could result from early releases of
criminal aliens, among other reasons, BOP is considering changing its
policy and allowing eligible nonviolent criminal aliens to complete the
RDAP program without the RRC component and receive sentence
reductions of up to 1 year for successful completion. 63 According to BOP,
this policy shift would require a rule change and the development of
procedures to ensure that no U.S. citizen was displaced from participating
in RDAP. BOP officials stated that decisions on this issue would not be
made until expanded program capacity becomes available, which is
currently uncertain.

Lack of Available Capacity
Impacts BOP’s Use of
RRCs and RDAP

A lack of RRC beds limits BOP’s ability to further utilize RRC placements.
Based on the most recently available data, in fiscal year 2010, about
29,000 inmates spent time in an RRC prior to release from BOP custody.
Although BOP officials at institutions we visited stated that they assessed
inmates on a case-by-case basis to determine the appropriate RRC
placement length, the officials stated that referrals can be reduced due to
RRC capacity constraints. According to BOP officials, in fiscal year 2010,
about 2.7 percent of eligible inmates were denied placement due to a lack
of bed space. BOP faces challenges in increasing its RRC bed space

63

BOP provided us estimates of savings of $25 million per year.

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GAO-12-320 BOP Use of Sentencing Flexibilities

capacity, which limits its ability to increase the length of RRC placements.
According to BOP community corrections officials, BOP has difficulty
acquiring new RRC contracts and increasing its RRC capacity because of
local zoning restrictions and the unwillingness of many communities to
accept nearby RRCs.
Although the Second Chance Act increased BOP’s flexibility to place
inmates in RRCs for up to 12 months, as reported by BOP officials,
challenges facing the expansion of its RRC capacity limit the impact of
this increased flexibility. 64 As of November 2011, BOP reported that
available contracted RRC bed space was 8,859 estimated beds. For each
available RRC bed, BOP can transfer one inmate to the RRC for a
maximum of 12 months, or BOP could send multiple inmates for shorter
placements (e.g., three inmates for 4 months each). As such, for this
increased flexibility to have an impact on the average length of RRC
placements, RRC capacity would need to increase. To provide all eligible
inmates with the maximum allowable 12 months in an RRC, BOP would
require about 29,000 available beds annually.
Some inmates are more affected by capacity constraints than others,
such as those with criminal records of sex offenses or those being
released into urban areas with few RRCs. According to BOP, only a
limited number of RRCs are able to accept sex offenders, and thus BOP,
at the onset, has a limited number of RRC beds for sex offender
placement. In addition, inmates releasing to urban areas may have their
placement lengths reduced due to capacity constraints. For example,
BOP staff we interviewed during our site visits identified shortages of
RRC beds in Southern California, North Carolina, and the Washington,
D.C. metropolitan area affecting the length of RRC placements. When
referring inmates for RRC placements, BOP considers the inmate’s
original sentencing location to facilitate transition and successful reentry.
As such, BOP’s utilization of RRC placements is limited in geographical
areas that do not have enough RRC beds to accommodate returning
inmates.
According to BOP officials, systemwide program capacity similarly
constrains BOP’s utilization of RDAP sentence reductions—specifically,
BOP’s ability to admit RDAP participants early enough to earn their

64

Pub. L. No. 110-199, 122 Stat. 657, 692-93.

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GAO-12-320 BOP Use of Sentencing Flexibilities

maximum allowable sentence reductions. BOP officials stated that the
RDAP sentence reduction incentive caused a backlog for entry into the
program. Long wait lists resulted in inmates entering RDAP with
insufficient time to complete the program in time to receive the maximum
sentence reduction. In fiscal years 2007 and 2008, BOP reported to
Congress that long wait lists (over 7,600 systemwide) prevented some
eligible inmates from participating in the program at all—20 percent and 7
percent unable to participate, respectively. RDAP capacity, as measured
by the number of program slots open to inmates at one time throughout
BOP (6,685 in fiscal year 2011), has grown at a relatively steady rate
since the program began in fiscal year 1989, and increased by 400 slots
from fiscal years 2009 to 2011. According to BOP officials, as program
capacity has increased in recent years, wait lists have been reduced,
even with continued growth in the inmate population. This has enabled
inmates to enter the program sooner and resulted in an increase in the
percentage of eligible inmates who complete RDAP and receive the
maximum sentence reductions from 14 percent in fiscal year 2009 to 25
percent in fiscal year 2011. However, according to BOP officials, RDAP is
still catching up to the increased demand and continues to have wait lists.
According to BOP officials, wait lists for entry into RDAP are currently
prioritized in accordance with statute based on inmates’ proximity to their
projected release dates which include GCT credit expected to be earned,
but do not include the potential RDAP sentence reduction that eligible
participants may earn. Two subject matter experts who advocate for
inmate interests whom we spoke with stated that BOP could consider
including the potential RDAP sentence reduction in inmates’ projected
release date calculations. This could ensure that eligible inmates would
enter the program sooner and in enough time to receive the maximum
reduction. For example, if two inmates have the same projected release
date, after accounting for GCT credit, but one inmate would be eligible for
a 1-year sentence reduction on completion of RDAP while the other
would not be eligible for a sentence reduction upon completion of RDAP,
the inmate eligible for the sentence reduction would have a higher
position on the wait list for entry into RDAP than the inmate ineligible for a
sentence reduction. BOP has stated that if it were to prioritize RDAP entry
in this way, some inmates who are not eligible for the sentence reduction
would not be able to enter the program at all, as they would continually be
displaced on the wait lists by inmates who are eligible for the sentence
reduction. BOP is required by statute, subject to the availability of
appropriations, to provide residential substance abuse treatment for all
eligible inmates, regardless of their eligibility for the sentence reduction
incentive, and thus must ensure that all eligible inmates are able to

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GAO-12-320 BOP Use of Sentencing Flexibilities

participate in the program prior to their release from custody. However,
BOP was unable to provide documentation that including RDAP sentence
reduction in computation of the projected release date would continually
displace inmates eligible for RDAP but ineligible for the associated
sentence reduction.
BOP’s fiscal year 2012 budget request included an increase of $15 million
for RDAP, which was not funded. According to BOP, the funding would
have reduced RDAP wait lists and enabled eligible inmates to enter the
program early enough to earn their maximum allowable sentence
reductions. BOP stated that the $15 million increase would have covered
125 new drug treatment staff positions and would have allowed an
additional 4,000 inmates to complete RDAP annually. 65 BOP officials also
told us that if BOP changes its policy to allow criminal aliens to participate
in RDAP, the funding increase for RDAP proposed in the 2012 budget
request would have been sufficient to allow this additional inmate
population to participate in RDAP without impacting the ability of U.S.
citizens to participate and receive the maximum available sentence
reductions.
Timely program admission would result in future cost savings through
additional sentence reductions. For example, if every eligible RDAP
participant who completed the program in fiscal year 2011 had received
their maximum sentence reduction, BOP would have been responsible for
15,729 fewer months of inmate incarceration, yielding an estimated cost
savings of about $13.2 million. BOP estimated that allowing criminal
aliens to participate in RDAP and earn sentence reductions could offer
about $25 million of additional cost savings each year.

Conclusions

Federal inmate populations have been increasing and BOP is operating
at more than a third over capacity. In addition, the absence of parole in
the federal system and other federal statutes limit BOP’s authority to
modify an inmate’s period of incarceration. Inmates, who earn their good
conduct time, as most do, end up serving about 87 percent of their
sentences. BOP’s housing of inmates in community-based facilities or
home detention is a key flexibility it uses to affect a prisoner’s period of

65

BOP has stated that it is unable to isolate the cost of RDAP programs from all BOP
substance abuse treatment programs because staff who provide RDAP treatment also
provide nonresidential and other drug treatment and education programs.

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GAO-12-320 BOP Use of Sentencing Flexibilities

incarceration. However, BOP does not require its RRC contractors to
separate the price of home detention services from the price of RRC
beds. As a result, BOP lacks information on the price of home detention
that could assist it in weighing the costs and benefits of alternative
options for supervising inmates in home detention. While BOP is working
to develop a process to require contractors to submit separate prices for
the price of RRC beds and home detention services, without establishing
a plan, including a time frame for development, BOP does not have a
road map for how it will achieve this goal.

Recommendation for
Executive Action

To determine the cost of home detention and potentially achieve cost
savings, we recommend that the Director of BOP establish a plan,
including time frames and milestones for completion, for requiring
contractors to submit separate prices of RRC beds and home detention
services.

Agency Comments
and Our Evaluation

We provided a draft of this report to DOJ for its review and comment.
BOP provided written comments on the draft report, which are
reproduced in full in appendix I. BOP concurred with the findings in the
report. Prior to receiving BOP’s comment letter, on January 20, 2012,
BOP’s audit liaison requested that the wording of our recommendation be
changed from “requiring contractors to identify RRC costs and home
detention costs separately” to “requiring contractors to submit separate
prices of RRC beds and home detention services.” He stated that BOP
was requesting this change because contractors are not required to
disclose financial information, such as the actual costs to them of
providing services to inmates, to BOP. Furthermore, the liaison stated
that obtaining separate prices of RRC and home detention services will
enable BOP to determine the price reasonableness of these services. We
believe that BOP’s proposed language addressed the intent of our
recommendation, and thus we modified the recommendation language.
BOP concurred with our recommendation, as revised, and also provided
technical comments which we incorporated into the report, as
appropriate.
We are sending copies of this report to the Attorney General, selected
congressional committees, and other interested parties. In addition, this
report will also be available at no charge on the GAO website at
http://www.gao.gov.

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GAO-12-320 BOP Use of Sentencing Flexibilities

If you or your staff have any further questions about this report, please
contact me at (202) 512-9627 or maurerd@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report are listed in
appendix II.

David C. Maurer
Director, Homeland Security and Justice Issues

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GAO-12-320 BOP Use of Sentencing Flexibilities

Appendix I: Comments from the Federal
Bureau of Prisons
Appendix I: Comments from the Federal
Bureau of Prisons

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GAO-12-320 BOP Use of Sentencing Flexibilities

Appendix II: GAO Contact and Staff
Acknowledgments
Appendix II: GAO Contact and Staff
Acknowledgments

GAO Contact

David C. Maurer, (202) 512-9627 or maurerd@gao.gov.

Staff
Acknowledgments

In addition to the contact named above, Chris Currie, Assistant Director;
Tom Jessor; Bintou Njie; Michael Kniss; Billy Commons, III; Pedro
Almoguera; and Lara Miklozek made significant contributions to this
report.

(440984)

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GAO-12-320 BOP Use of Sentencing Flexibilities

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