FEDERAL PRISON 

SYSTEM

Justice Has Used 

Alternatives to 

Incarceration, But 

Could Better Measure 

Program Outcomes

Report to Congressional Committees

June 2016

GAO-16-516

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-16-516, a report to 

Congressional committees

June 2016

FEDERAL PRISON SYSTEM

Justice Has Used Alternatives to Incarceration, But 

Could Better Measure Program Outcomes

Why GAO Did This Study

Since 1980, the federal prison 

population increased from about 

25,000 to almost 200,000, as of March 

2016. In part to help reduce the size 

and related costs of the federal prison 

population, DOJ has taken steps to 

slow its growth by pursuing alternatives 

to incarceration at various stages of 

the criminal justice process for 

nonviolent, low-level offenders. Senate 

Report 113-78 included a provision for 

GAO to review DOJ’s management of 

the federal prison population.

This report (1) describes factors 

criminal justice stakeholders consider 

when using incarceration alternatives 

at or before sentencing and identifies

the extent to which those alternatives 

are used, (2) describes factors BOP 

considers when using incarceration 

alternatives for inmates and the extent 

of their use, and (3) assesses the 

extent DOJ has measured the cost 

implications and outcomes of using the 

alternatives. 

GAO analyzed DOJ and federal 

judiciary branch data and documents

from fiscal years 2009 through 2015, 

and interviewed DOJ and judiciary 

officials at headquarters and in 11

selected nongeneralizable judicial 

districts about the use of alternatives. 

GAO selected districts to provide 

geographic diversity and a mix of 

districts using and not using the 

alternatives. 

What GAO Recommends

GAO recommends that DOJ enhance 

its tracking of data on use of pretrial 

diversions and that DOJ and BOP 

obtain outcome data and develop 

measures for the alternatives used.

DOJ concurred. 

What GAO Found

Department of Justice (DOJ) and federal judiciary officials reported considering

numerous factors when using alternatives to incarceration at or before an offender’s 

sentencing, but DOJ does not reliably track the use of some alternatives. A variety of 

alternatives can be used for offenders at or before sentencing, such as referral to 

state and local prosecutors, pretrial release, and probation. Other such alternatives 

include pretrial diversion programs which divert certain offenders from the traditional 

criminal justice process into a program of supervision and services or into courtinvolved pretrial diversion practices, such as drug courts, that provide offenders an 

opportunity to avoid incarceration if they satisfy program requirements. DOJ and 

judiciary officials most commonly reported considering the presence of violence and 

the offender’s role in the crime when determining use of an alternative at or before 

sentencing. Based on DOJ and judiciary data on referrals to other jurisdictions, 

pretrial release, and alternatives at sentencing, the overall use of such alternatives 

across districts was largely consistent during the periods for which data were

available from fiscal years 2009 to 2015. However, DOJ data on the use of pretrial 

diversion is unreliable because DOJ’s database does not distinguish between the 

types of pretrial diversions. Further, when and whether the use of the pretrial 

diversion is recorded into the database varies across DOJ staff responsible for 

entering the data. By revising its system to track the different types of pretrial 

diversion programs, and issuing guidance as to when staff are to enter their use into 

its database, DOJ would have more reliable and complete data. 

DOJ’s Bureau of Prisons (BOP) considers statutory requirements and risk levels 

when placing inmates into incarceration alternatives such as residential reentry 

centers (RRCs, also known as halfway houses) and home confinement, and has 

increased its use of alternatives, particularly home confinement, in the past seven 

years. In addition to the basic eligibility requirements, BOP evaluates inmates’ needs

for reentering society, risk for recidivism, and risks to the community if placed in 

RRCs or home confinement. For low-risk and low-need inmates, home confinement 

is the preferred alternative according to BOP and BOP increased its use by 67 

percent for minimum security inmates and 58 percent for low security inmates from 

fiscal years 2009 through 2015. Relative to home confinement, use of RRCs grew at 

a slower pace for low security inmates and declined for minimum security inmates. 

DOJ has tracked some data on the cost implications of using incarceration 

alternatives, but could better measure their outcomes. For example, DOJ conducted 

a survey in 2014 and 2015 of U.S. Attorneys to obtain district-level information about 

the use of court-involved pretrial diversion practices. However, the data collected do 

not measure the outcomes or cost implications of the alternatives. For alternatives 

used at the end of inmates’ sentences, BOP maintains data on the costs, such as 

average daily costs, of placing inmates in RRCs and home confinement. While BOP 

has measures in its strategic plan to monitor the use of RRCs and home confinement

and has contracted for an analysis of its use of RRCs and home confinement that is 

expected to be completed during the summer of 2016, BOP, does not currently track 

the information needed to help measure the outcomes of these alternatives. By taking 

steps to obtain outcome data and developing performance measures for the 

alternatives used, DOJ and BOP would be better able to determine the extent to 

which the alternatives are achieving their goals and objectives and what adjustments 

may be necessary to make them more effective.

View GAO-16-516. For more information, 

contact Diana C. Maurer at (202) 512-9627 or 

maurerd@gao.gov.
Page i GAO-16-516 Alternatives to Incarceration

Letter 1

Background 7

Selected Stakeholders Reported Considering a Number of Factors 

When Using Alternatives at or before Sentencing, but DOJ 

Does Not Track the Use of Some Alternatives 14

BOP Considers Statutory Requirements and Inmate Risk Levels 

when Deciding Whether to Use Incarceration Alternatives and 

Has Increased Use of Such Alternatives for Minimum and Low 

Security Inmates 25

DOJ Has Tracked Some Data on the Cost Implications of 

Alternatives to Incarceration, but Could Better Measure 

Outcomes 35

Conclusions 47

Recommendations for Executive Action 48

Agency Comments and our Evaluation 49

Appendix I Comments from the Administrative Office of the U.S. Courts 53

Appendix II GAO Contact and Staff Acknowledgments 55

Tables

Table 1: Key Department of Justice (DOJ) and Federal Judiciary 

Stakeholders Involved in the Federal Criminal Justice 

Process 8

Table 2: Pretrial alternatives to incarceration in the federal criminal 

justice process and role of federal stakeholders 11

Table 3: Alternatives at Sentencing and Incarceration in the 

Federal Criminal Justice Process and Role of Federal 

Stakeholders 12

Table 4: Number and Percentage of Inmates in the Custody of 

Bureau of Prisons (BOP), by Institutional Security Level, 

as of February 27, 2016 14

Table 5: Examples of Factors Stakeholders Reported Considering 

When Determining Use of Alternatives to Incarceration at 

or Before Sentencing 16

Table 6: Estimated Cost Savings of Court-involved Pretrial 

Diversion Programs, by Federal Judicial District 38

Contents
Page ii GAO-16-516 Alternatives to Incarceration

Table 7: Pretrial Services Data on Some Federal Judicial Districts’ 

Use of Court-involved Pretrial Diversion Practices, August

2015

Figures

Figure 1: Steps in the Federal Criminal Justice System Process 

with Alternatives to Incarceration 10

Figure 2: Rates of Use of Alternatives to Incarceration within 

Federal Criminal Justice System before Trial and at 

Sentencing 21

Figure 3: Bureau of Prisons’ Process for Placing Inmates into 

Residential Reentry Centers (RRC) and Home 

Confinement 27

Figure 4: Number of Bureau of Prisons Inmates Placed in 

Incarceration Alternatives, by Security Level, Fiscal Years 

2009 through 2015 29

Figure 5: Types of Incarceration Alternatives Used for Bureau of 

Prisons’ Minimum and Low Security Inmates, by percent, 

Fiscal Years 2009 through 2015 30

Figure 6: Number of Inmates Placed into the Federal Location 

Monitoring (FLM) Program, by Security Level, Fiscal 

Years 2009 through 2015 32

Figure 7: Daily Cost per Inmate of Bureau of Prisons Facilities and 

Residential Reentry Centers, Fiscal Year 2015 43
Page iii GAO-16-516 Alternatives to Incarceration

Abbreviations

AOUSC Administrative Office of the U.S. Courts

BOP Bureau of Prisons

DOJ Department of Justice

EOUSA Executive Office for United States Attorneys

FLM Federal Location Monitoring Program

GPRAMA GPRA Modernization Act of 2010

LIONS Legal Information Office Network System

PPSO U.S. Probation and Pretrial Services Office

RRC Residential Reentry Center

RRM Residential Reentry Management

USAO U.S. Attorneys’ Office

USSC U.S. Sentencing Commission

This is a work of the U.S. government and is not subject to copyright protection in the 

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without further permission from GAO. However, because this work may contain 

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Page 1 GAO-16-516 Alternatives to Incarceration

441 G St. N.W.

Washington, DC 20548

July 23, 2016

Congressional Committees

As of March 2016, the Department of Justice’s (DOJ) Federal Bureau of 

Prisons (BOP) was responsible for managing almost 200,000 inmates in 

122 institutions, more than half of whom are housed in low and medium 

security facilities. Despite a decline of about 8,400 inmates since the end 

of fiscal year 2015, BOP’s inmate population is seven times the 

population it managed in 1980. BOP’s inmate population increased by 

about 700 percent from 1980 to 2016—from 24,640 to almost 200,000. 

Given the increase in population, BOP’s annual appropriations have 

increased from $330 million in fiscal year 1980 to almost $7.5 billion for 

fiscal year 2016. According to DOJ’s Inspector General, the rising costs 

for BOP threaten the department’s ability to fulfill its mission in other 

areas, including maintaining national security, enforcing criminal law, and 

defending civil rights.

In 2013, in part to help reduce the size and costs of the federal prison 

population, DOJ implemented the Smart on Crime Initiative, the goals of 

which include prioritizing prosecutions to focus on the most serious 

cases, and pursuing alternatives to incarceration for low-level, nonviolent 

offenders.1 DOJ and its components, such as BOP and the U.S. 

Attorneys’ Offices (USAO), in conjunction with the federal judiciary and its 

components, such as the U.S. Probation and Pretrial Services Office 

(PPSO), have made use of a variety of alternatives to incarceration for 

 1

According to officials with U.S. Probation and Pretrial Services, an individual going 

through the criminal justice process is considered a “defendant” until they are adjudicated 

and sentenced, after which they become an “offender." We recognize that there are two 

distinct terms to describe an individual who has been accused of committing a federal 

crime and is going through the federal criminal justice process, as compared to an 

individual that has gone through the adjudication process and been sentenced for 

committing a federal crime. However, for the purpose of this report, we use “offender” as a 

general reference to an individual at any stage of the process to simplify the terminology 

used.

Letter
Page 2 GAO-16-516 Alternatives to Incarceration

federal offenders and inmates.2 These include alternatives on the frontend of the criminal justice process, such as releasing offenders pretrial 

and allowing offenders to participate in pretrial diversion programs and 

specialty courts, such as drug courts, which provide offenders an 

opportunity to avoid incarceration if they satisfy program requirements. 

For those offenders who are convicted of a criminal offense, judges may 

use alternatives to incarceration during sentencing, such as sentencing 

an offender to probation without a period of incarceration. After an inmate 

has been incarcerated, BOP has alternatives available that would allow 

the inmate to serve out a period of his or her sentence outside of a BOP 

institution, such as in a Residential Reentry Center (RRC, also known as 

a halfway house) or on home confinement, both of which are designed to 

supervise inmates in a community setting to facilitate an inmate’s reentry 

into society.3

We previously reported that BOP’s population size is driven by factors 

beyond BOP’s control, such as law enforcement policies and sentencing 

laws.4 In the last few years, DOJ has implemented targeted initiatives to 

address the concerns of overcrowding and costs of federal prisons. 

Senate Report 113-78 included a provision for us to conduct a review of 

 2

The U.S. Probation and Pretrial Services Office (PPSO) is the component of the United 

States Courts that is responsible for carrying out probation and pretrial services functions 

in the U.S. district courts. Probation officers supervise offenders who are sentenced to a 

term of probation by the court or who are on parole or supervised release after release 

from prison to the community. Probation officers also prepare presentence investigation 

reports in which they recommend sentences based on the sentencing guidelines of the 

U.S. Sentencing Commission. Pretrial services officers conduct pretrial investigations and 

prepare bond reports for the courts, and supervise defendants released to the community 

before trial to help ensure they do not commit any new crimes and return to court as 

required. For the purposes of this report, we refer to the U.S. Probation and Pretrial 

Services Office and its staff generally as PPSO or PPSO officers, as appropriate.

3

According to BOP, it does not view inmates’ placement in RRCs and home confinement 

as “incarceration alternatives.” Pursuant to BOP’s statutory authority (18 U.S.C. §§ 3621 

and 3624), BOP may place inmates into RRCs and home confinement as a means to 

serve, continue serving, or conclude serving, federal terms of imprisonment. Additionally, 

according to BOP officials, RRCs are a type of programming made available to inmates at 

the end of their term of incarceration to facilitate their reentry into society. We 

acknowledge the legal basis for BOP’s distinction; however, for the purposes of this 

report, we consider RRCs and home confinement as alternatives to incarceration as they 

allow inmates to serve a portion of their sentence outside of a prison environment under 

alternative confinement restrictions. 

4

GAO, Bureau of Prisons: Information on Efforts and Potential Options to Save Costs, 

GAO-14-821 (Washington, D.C.: September 2014).
Page 3 GAO-16-516 Alternatives to Incarceration

these recent efforts, including whether incarceration and prevention 

programs are being used effectively, given DOJ’s department-wide 

approach.5

This report addresses the following questions:

1. What factors have selected criminal justice stakeholders reported 

considering when determining whether to use alternatives to 

incarceration when charging, litigating, or sentencing offenders, and to 

what extent have these alternatives been used?

2. What factors has BOP considered when determining whether to use 

alternatives to incarceration for minimum and low security inmates, 

and to what extent has it used these alternatives?

3. To what extent has DOJ measured the cost implications and 

outcomes of alternatives to incarceration?

To answer the first question, we reviewed federal policies such as the 

U.S. Attorney’s Manual used by federal prosecutors and federal 

sentencing guidelines used by judges when determining whether to use 

an alternative. To determine the extent to which districts use the 

alternatives at or before sentencing, we obtained and analyzed available 

data for the fiscal year 2009 through 2015 time period from DOJ on 

referrals to other jurisdictions and the use of pretrial diversion; the U.S. 

Sentencing Commission (USSC) on the use of incarceration alternatives 

(e.g., probation) at sentencing; and the Administrative Office of the U.S. 

Courts (AOUSC) on pretrial release rates to identify trends in the use of 

 5

S. Rep. No. 113-78 (2013). Also in response to Senate Report 113-78, we conducted a 

review of DOJ’s recent initiatives to address the growing federal prison population. See 

GAO, Federal Prison System: Justice Could Better Measure Progress Addressing 

Incarceration Challenges, GAO-15-454 (Washington, D.C.: June 19, 2015). 
Page 4 GAO-16-516 Alternatives to Incarceration

those alternatives, if any, over time.6 We selected this time period 

because we believe that 7 years is sufficient time to provide an adequate 

understanding of recent trends in the use of those alternatives. We 

assessed the reliability of these data and generally determined them to be 

sufficiently reliable for our purposes of reporting trends in use of the 

alternatives. This reliability assessment included reviewing relevant 

documentation and interviewing or obtaining information about the data 

from knowledgeable officials from DOJ’s Executive Office for United 

States Attorneys (EOUSA), the USSC, and the AOUSC. However, we 

determined that DOJ’s data on pretrial diversion were unreliable, for 

reasons discussed later in this report. We also reviewed DOJ’s policies 

and procedures for tracking its use of alternatives to incarceration and 

compared those policies and procedures with criteria in Standards for 

Internal Control in the Federal Government.7

Additionally, for our first objective, we interviewed officials at USAOs; 

court officials, including district and magistrate judges, and probation and 

pretrial services officers; and defense counsel in 11 selected judicial 

districts. These districts include 6 districts that reported using alternatives 

such as a court-involved pretrial diversion practice—Central District of 

California, Southern District of California, Western District of Washington, 

Central District of Illinois, Eastern District of New York, and District of 

South Carolina—and 5 districts that do not—District of Nevada, Southern 

District of Iowa, Eastern District of Michigan, Southern District of Texas, 

and Northern District of Georgia. We selected the 6 districts based on 

information available as of August 2015 from DOJ, the USSC, and U.S. 

District Court for the Eastern District of New York that identified which 

districts used court-involved pretrial diversion practices such as drug 

 6

The U.S. Sentencing Commission (USSC) is an independent agency in the judicial 

branch of government created by the Sentencing Reform Act provisions of the 

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976. Among 

other things, the USSC’s principal purposes are: (1) to establish sentencing policies and 

practices for the federal courts, including guidelines to be consulted regarding the 

appropriate form and severity of punishment for offenders convicted of federal crimes; (2) 

to advise and assist Congress and the executive branch in the development of effective 

and efficient crime policy; and (3) to collect, analyze, research, and distribute a broad 

array of information on federal crime and sentencing issues. The Administrative Office of 

the U.S. Courts (AOUSC) is the agency within the judicial branch that provides a broad 

range of legislative, legal, financial, technology, management, administrative, and program 

support services to federal courts.

7

GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999). 
Page 5 GAO-16-516 Alternatives to Incarceration

courts, veterans’ courts, or other specialty courts. In addition, we selected 

all 11 districts using a mix of other criteria such as geographic location, 

geographic characteristics (i.e., along a border or body of water), and 

demographics (i.e., urban and rural). We interviewed officials from these 

districts to discuss the alternatives to incarceration they have used at or 

before sentencing and the most frequently used factors that stakeholders 

considered in their decisions whether to use these alternatives. 

Information from the interviews with officials in our 11 selected districts 

cannot be generalized across all federal judicial districts. However, the 

information we obtained from these districts provides insight into what 

alternatives are being used and how they are used in practice. We are not 

taking a position on whether these alternatives to incarceration should be 

used, but rather present information on stakeholders’ perspectives about 

deciding whether to use alternatives.

To answer the second question, we reviewed BOP policy and guidance 

related to the process for identifying and placing eligible inmates into 

RRCs and home confinement, including home confinement through the 

Federal Location Monitoring Program (FLM), a joint program between 

BOP and PPSO. Additionally, to determine the extent to which BOP uses 

these alternatives, we analyzed BOP data on the number and type of 

inmates placed in RRCs and home confinement alternatives from fiscal 

years 2009 through 2015 to identify trends in the use of these 

alternatives, if any, over time. We selected this time period because we 

believe that 7 years is sufficient time to provide an adequate 

understanding of recent trends in the use of those alternatives. We 

assessed the reliability of these data and determined them to be 

sufficiently reliable for our purposes. This reliability assessment included 

obtaining information about the data from knowledgeable officials at BOP.

We also compared BOP’s and PPSO’s policies and procedures for 

carrying out the FLM program against practices that we have identified in 

prior work to enhance and sustain collaboration among federal agencies 

and Standards for Internal Control in the Federal Government.8

For our second objective, we also interviewed BOP officials in the 

Reentry Services Division at headquarters, which provides management 

 8

See GAO, Results-Oriented Government: Practices That Can Help Enhance and Sustain 

Collaboration among Federal Agencies, GAO-06-15 (Washington, D.C: Oct. 21, 2005); 

and GAO/AIMD-00-21.3.1.To identify these practices, we reviewed relevant literature, 

including our prior reports, and interviewed experts in the area of collaboration. 
Page 6 GAO-16-516 Alternatives to Incarceration

and oversight of BOP’s use of RRCs and home confinement, as well as 

wardens and other BOP staff located at selected minimum and low 

security institutions to discuss the factors they consider when deciding 

whether to place an inmate into an RRC or home confinement. Within our 

11 selected districts discussed above, we selected all 4 of BOP’s 

minimum and low security institutions located within those districts—

Federal Correctional Institution Lompoc and Federal Correctional 

Institution Terminal Island in the Central District of California, Federal 

Prison Camp Bryan in the Southern District of Texas, and Federal 

Correctional Institution Milan in the Eastern District of Michigan. We also 

interviewed BOP residential reentry management (RRM) officials, who 

are responsible for managing the placement of inmates in RRCs and 

home confinement, and RRC contractors within the 3 districts above 

where BOP minimum or low security institutions were located to better 

understand the key factors they consider in decisions to use incarceration 

alternatives. We also interviewed BOP RRM officials and an RRC 

contractor in the Western District of Washington in our initial work on the 

engagement before we had made our selections of BOP institutions. 

Even though this office was outside of the districts where the selected 

BOP institutions were located, we included its officials’ responses in order 

to be comprehensive in our analysis. We also interviewed officials with 

PPSO in the 11 districts mentioned above about their role and factors 

they consider when accepting inmates into the FLM Program.

To answer the third question, we reviewed results from a 2014 survey 

conducted by EOUSA of USAOs regarding the implementation of the 

department’s “Smart on Crime” initiative—the first such survey 

conducted—which included their use of court-involved pretrial diversion 

practices, such as a presentence diversion court, and, if they used such a 

court, whether the court was evaluated or assessed. We also reviewed 

available cost estimates and program measures compiled by PPSO 

officials from some districts using court-involved pretrial diversion 

practices, such as the data compiled by the Eastern District of New York. 

Additionally, we analyzed BOP daily cost data for inmates at BOP 

facilities and RRCs for fiscal year 2015 to determine the cost of BOP 

facilities compared to RRCs. We selected this year because it is the most 

current data available. We assessed the reliability of these data and 

determined them to be sufficiently reliable for our purposes. This reliability 

assessment included reviewing relevant documentation and interviewing 

and obtaining information from knowledgeable officials from EOUSA and 

BOP. We also reviewed DOJ’s Strategic Plan, Smart on Crime Initiative 

goals, and BOP’s Strategic plan to identify any relevant measures for the 

performance of the alternatives and compared those against the 
Page 7 GAO-16-516 Alternatives to Incarceration

characteristics of measures as called for in Standards for Internal Control 

in the Federal Government and the GPRA Modernization Act (GPRAMA) 

of 2010.9 We interviewed officials at EOUSA and BOP to better 

understand how or whether they measure cost implications and the 

effectiveness of using alternatives to incarceration.

We conducted this performance audit from March 2015 to June 2016 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 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

Various DOJ and federal judiciary stakeholders play key roles in the 

federal criminal justice process, and as such, they can also have key 

roles in considering whether to use incarceration alternatives for a given 

offender or inmate. For example, in the course of the federal criminal 

justice process, a U.S. attorney is involved in the process of investigating, 

charging and prosecuting an offender, among other responsibilities. 

Federal defenders are called upon to represent defendants who are 

unable to financially retain counsel in federal criminal proceedings. 

PPSO, an office within the judiciary, also has responsibilities including 

supervising an offender pretrial or after conviction. Likewise, federal 

judges are responsible for determining an offender’s sentence, and, in the 

case of incarceration, BOP is responsible for caring for the inmate while 

in custody. Table 1 describes these roles in more detail.

 9

Pub. L. No. 111-352, 124 Stat. 3866 (Jan. 4, 2011). 

Background

Key Stakeholders in the 

Federal Criminal Justice 

Process
Page 8 GAO-16-516 Alternatives to Incarceration

Table 1: Key Department of Justice (DOJ) and Federal Judiciary Stakeholders Involved in the Federal Criminal Justice 

Process

Federal 

Stakeholder

Branch of Federal 

Government Mission of Federal Stakeholder

Federal law 

enforcement 

agencies

Executive A federal law enforcement agency carries out the principle functions of prevention, 

detection, and investigation of crime and the apprehension of alleged offenders.

Examples of federal law enforcement agencies include the Drug Enforcement 

Administration, Federal Bureau of Investigation, U.S. Marshals Service, and the Bureau 

of Alcohol, Tobacco, Firearms and Explosives.

U.S. Attorney’s 

Office/U.S. Attorneys

Executive Under 28 U.S.C. § 547, United States Attorneys are responsible for prosecuting offenses 

against the United States. 93 U.S. Attorneys serve as the nation’s principal litigators 

under the direction of the Attorney General for 94 judicial districts.a Each U.S. Attorney is 

the chief federal law enforcement officer of the United States within his or her particular 

jurisdiction. 

Defender Services 

program

Judiciary The mission of the Defender Services program is to ensure that the right to counsel 

guaranteed by the Sixth Amendment, the Criminal Justice Act (18 U.S.C. § 3006A), and 

other congressional mandates is enforced on behalf of those who cannot afford to retain 

counsel and other necessary defense services. Accordingly, the Defenders Services 

program has the responsibility to represent defendants who are unable to financially 

retain counsel in federal criminal proceedings.b

U.S. Probation and 

Pretrial Services 

Office c

Judiciary The U.S. Probation and Pretrial Services Office carries out probation and pretrial 

services functions in the U.S. district courts and serves as the community corrections 

arm of the federal judiciary. 

Federal Judges Judiciary In federal district courts, generally, at an initial appearance, a judge who has reviewed 

arrest and post-arrest investigation reports advises the defendant of the charges filed, 

considers whether the defendant should be held in jail until trial, and determines whether 

there is probable cause to believe that an offense has been committed and that the 

defendant has committed it. Generally, if the defendant pleads guilty, the judge may 

impose a sentence, but more commonly will schedule a later hearing to determine the 

sentence. If the defendant pleads not guilty, generally the judge will schedule a trial. 

Generally, after trial, if a defendant is determined to be guilty, a judge determines the 

defendant’s sentence. During sentencing, the court may consider U. S. Sentencing 

Commission guidelines, evidence produced at trial, and also relevant information 

provided by the pretrial services officer, the U.S. attorney, and the defense attorney.

Federal Bureau of 

Prisons (BOP)

Executive BOP is responsible for the custody and care of federal inmates and offenders. It is also 

responsible for providing work and other self-improvement opportunities to assist 

offenders in becoming law-abiding citizens.

Source: GAO analysis of DOJ and federal judiciary information. | GAO-16-516

a

One U.S. Attorney is assigned to each of the 94 judicial districts, with the exception of Guam and the 

Northern Mariana Islands where a single U.S. Attorney serves in both districts.

b

According to the Administrative Office of the U.S. Courts, the Criminal Justice Act (18 U.S.C. § 

3006A, or CJA) provides representation to financially eligible criminal defendants through federal 

defender organizations (FDO) and CJA panel attorneys. There are two types of FDOs: federal public 

defender organizations and community defender organizations. Federal public defender organizations 

are federal entities, and their staffs are federal employees. Community defender organizations are 

non-profit defense counsel organizations incorporated under state laws which receive federal grants 

to fund their operations. CJA panel attorneys are qualified lawyers in private practice appointed by 

federal courts to represent financially eligible defendants in criminal cases, typically when an FDO is 

unable to represent the defendant. Panel attorneys provide representation in approximately 40 

percent of all CJA cases.

c

U.S. Probation and Pretrial Services Offices are combined in some districts.
Page 9 GAO-16-516 Alternatives to Incarceration

Federal laws and guidelines determine what, if any, incarceration is 

appropriate for offenders. Prior to passage of the Sentencing Reform Act 

of 1984, federal judges generally had broad discretion in sentencing.10

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. 

The Sentencing Reform Act of 1984 changed the federal sentencing 

structure by abolishing parole for federal offenders sentenced after its 

effective date, and subsequent legislation established mandatory 

minimum sentences for many federal offenses.11

The Sentencing Reform Act of 1984 also established the independent 

USSC within the judicial branch and charged it with, among other things, 

developing federal sentencing guidelines.12 The guidelines specify 

sentencing guideline ranges—a range of time (in months) that offenders 

should serve given the nature of their offense and other factors—but also 

permit sentences to depart upward or downward from guideline ranges 

because of aggravating or mitigating circumstances. In 2005, the 

Supreme Court found the Sentencing Guidelines, which had previously 

been binding for federal judges to follow in sentencing criminal 

defendants, to be advisory in nature.13 Regardless of the guidelines’

advisory nature, judges are still required to calculate them properly and to 

consider the guideline ranges as well as the nature and circumstances of 

the offense, the defendant’s history, and the need for deterrence, among

other sentencing goals.14

However, sentencing and, if appropriate, incarceration, are two of multiple 

potential steps in the federal criminal justice process. There are also 

opportunities to use alternatives to incarceration for certain offenders 

throughout the process, as illustrated in figure 1.

 10Pub. L. No. 98-473, 98 Stat. 1987.

11The act was effective for offenses committed on or after November 1, 1987.

12Pub. L. No. 98-473, § 217, 98 Stat. 1987, 2017.

13See United States v. Booker, 543 U.S. 220 (2005).

1418 U.S.C. § 3553(a).

Federal Criminal Justice 

Process
Page 10 GAO-16-516 Alternatives to Incarceration

Figure 1: Steps in the Federal Criminal Justice System Process with Alternatives to Incarceration

Note: Alternatives to incarceration are shown in the bottom row. Except for the referral to state and 

local prosecutors, defendants can still be incarcerated federally after being provided these 

alternatives if they fail to meet the specific terms and conditions of the alternative.

As figure 1 shows, alternatives to incarceration are available at various 

steps in the federal criminal justice process from charging and 

prosecution through incarceration—the steps in the process included in 

the scope of our review. Multiple DOJ components, as well as the federal 

judiciary, have specific roles and responsibilities in providing these 

alternatives.15 Of the various incarceration alternatives that can be 

exercised at the charging and prosecution or at sentencing and 

incarceration stages, the use of court-involved pretrial diversion practices, 

specifically, can be exercised solely in those districts that have decided to 

adopt such practices.

Tables 2 and 3 provide details on the pretrial alternatives to incarceration 

and those available at sentencing and after incarceration, respectively, as 

well as the federal stakeholders or entities involved, and their role.

 15We scoped our review to focus on alternatives available once the case is considered by 

the U.S. Attorney’s Office; therefore, we did not review alternatives pre-arrest, or those 

used by law enforcement.
Page 11 GAO-16-516 Alternatives to Incarceration

Table 2: Pretrial alternatives to incarceration in the federal criminal justice process and role of federal stakeholders

Alternative to 

Federal 

Incarceration Stakeholder(s) Role

Referral of case to 

state and local 

prosecutor

DOJ’s United States Attorneys’

Offices (USAOs)

Prosecutor may decide not to pursue federal charges against the offender, 

or instead refer to state or local prosecutors to prosecute.

a

Title 9 Pretrial 

Diversion Program

USAOs; federal judiciary’s U.S. 

Probation and Pretrial Services 

Office (PPSO)

Title 9 of the U.S. Attorneys’ Manual permits USAOs to divert, at the 

discretion of the U.S. Attorney, certain federal offenders from prosecution 

into a program of supervision and services administered by the PPSO, an 

office of the federal judiciary.b The PPSO officer also conducts an 

investigation to determine suitability in the diversion program and supervise 

defendants accepted into the program. If the offender fulfills the terms of the 

program, the offender will not be prosecuted, or, if the offender has already 

been charged, the charges will be dismissed.

Pretrial Release Federal judge; federal judiciary’s 

PPSO; USAO; defense counsel

After arrest but before trial, federal defendants may be released, if 

appropriate. Generally, pretrial release is determined by a magistrate judge 

with input from the USAO, the offender’s defense counsel, and PPSO 

officers. The PPSO officers complete an interview of the defendant, 

excluding illegal aliens, and prepare a written report to the court with an 

assessment of the defendant’s risk of danger to the community and failure to 

appear. If release is recommended by the PPSO officer, appropriate 

conditions of supervision are identified.

Court-involved 

Pretrial Diversion 

Practices 

PPSO; Federal Judges; USAOs; 

defense counsel

In addition to the Title 9 Pretrial Diversion Program, federal criminal justice 

stakeholders within some judicial districts have voluntarily established courtinvolved pretrial diversion practices. Court-involved pretrial diversion allows 

certain federal offenders the opportunity to participate in a pretrial diversion 

program of supervision and services, such as a drug court to address 

criminal behavior that may be linked to addiction to drugs or alcohol. 

Generally, participation is determined by the program judge, USAO, 

defenders, and PPSO. Program participants meet regularly with court 

officials including a judge and pretrial services officer to discuss their 

progress in the program. If the offender satisfies program requirements, the 

offender will not be prosecuted, charges may be dismissed, or the 

participant will receive a reduced sentence.

Source: GAO analysis of DOJ and federal judiciary documents. | GAO-16-516

a

The U.S. Attorneys Manual states that federal prosecutors have wide discretion with respect to 

determining when, whom, how, and even whether to prosecute for apparent violations of Federal 

criminal law.

b

United States Attorneys’ Manual Section 9-22.100.
Page 12 GAO-16-516 Alternatives to Incarceration

Table 3: Alternatives at Sentencing and Incarceration in the Federal Criminal Justice Process and Role of Federal 

Stakeholders

Alternative to Federal 

Incarceration Stakeholder(s) Role

Alternative sentences Federal judge; federal 

judiciary’s U.S. Probation and 

Pretrial Services Office 

(PPSO); federal defenders; 

United States Attorneys’

Offices (USAO); and DOJ’s 

Bureau of Prisons (BOP)

Under the Federal Sentencing Guidelines—which are advisory—judges 

may consider the use of alternatives to incarceration, if appropriate. 

These alternatives include: (1) probation, under which the defendant is 

supervised by the PPSO; (2) intermittent confinement, in which the 

defendant remains in the custody of BOP during nights, weekends, or 

other intervals of time;a (3) home confinement, in which the defendant is 

subject to confinement and supervision that restricts him or her to his or 

her place of residence, except for authorized absences, under 

surveillance by the PPSO;b (4) community confinement, in which the 

defendant resides in a community facility, such as a treatment center or 

halfway house, and participates in facility-approved programming, such 

as employment or employment search efforts, during non-residential 

hours; and (5) community service.c

Residential Reentry 

Centers (RRC, also known 

as a halfway house)

BOP; PPSO Toward the end of inmates’ periods of incarceration, BOP may place 

inmates in RRCs, in which inmates are housed outside a prison 

environment prior to their release in the community; authorized to leave 

for approved activities, such as work; monitored 24 hours a day, such as 

through sign-out procedures; required to work or be actively seeking 

work; and required to pay a percentage of their salaries as a subsistence 

fee to cover some of their expenses at the RRC. According to 

Administrative Office of the U.S. Courts officials, PPSO officers may also 

recommend the use of RRCs as a temporary sanction for offenders that 

have violated their supervision conditions and recommend to the judge 

that the offenders be placed in the RRC for a period of time rather than 

back in prison.

Home confinement, 

including the Federal 

Location Monitoring (FLM) 

Program

BOP; federal judiciary’s 

PPSO

BOP may also place inmates in home confinement toward the end of 

their sentences, whereby inmates serve a portion of their sentences 

while residing at their homes. The inmates are required to remain in their 

homes when not involved in approved activities, such as employment, 

and are supervised and monitored, such as through curfews, random 

staff visits, or electronic monitoring. RRC staff may provide the 

supervision or, through an interagency agreement, BOP and the PPSO 

established the FLM Program, through which PPSO officers provide 

supervision for BOP inmates on home confinement under certain 

conditions. Among other things, inmates ordinarily must be classified as 

minimum security level; seek and maintain employment; and pay for all 

or part of the costs of the FLM program.

Source: GAO analysis of DOJ and federal judiciary documents. | GAO-16-516

a

According to the Sentencing Guidelines, intermittent confinement may be imposed as a condition of 

probation during the first year of probation. See 18 U.S.C. § 3563(b)(10).

b

The defendant is required to be in his place of residence at all times except for approved absences 

for gainful employment, community service, religious services, medical care, educational or training 

programs, and such other times as may be specifically authorized.

c

According to the Sentencing Guidelines, judges are generally not to impose community service 

requirements in excess of 400 hours as longer terms of community service can impose heavy 

administrative burdens relating to the selection of suitable placements and the monitoring of 

attendance.
Page 13 GAO-16-516 Alternatives to Incarceration

BOP is responsible for the custody and care of federal inmates. 

According to BOP data, eighty-one percent of these inmates are confined 

in BOP-operated correctional institutions or detention centers. The 

remainder are confined in secure privately managed or community-based 

facilities, local jails or in home confinement.16 BOP itself houses inmates 

in its 122 federal institutions and about 180 RRCs. The institutions 

operate at different security-level designations—minimum, low, medium, 

and high for institutions housing male inmates, and minimum, low, and 

high for institutions housing female inmates.17 Of BOP’s 122 facilities, 39 

are minimum and low-security institutions. The security-level designation 

of a facility depends on the level of security and staff supervision that 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 inmate-to-staff ratio. Additionally, BOP 

designates some of its institutions as administrative facilities, which house 

male and female inmates and specifically serve inmates awaiting trial, 

those with intensive medical or mental health conditions, or those who are 

deemed extremely dangerous, violent, or escape-prone, regardless of the 

level of supervision these inmates require.

Table 4 depicts the number and percentage of inmates in the custody of 

BOP, by security level of the institution, as of February 27, 2016. As table 

4 shows, more than half of BOP’s inmates are incarcerated in low and 

medium security institutions.

 16According to BOP officials, privately operated secure contract facilities are low security 

and primarily house non-U.S. citizens convicted of crimes while in this country legally or 

illegally. According to BOP data, as of September 2014, non-U.S. citizens represent 41.2 

percent of the total low security inmate population and none of the minimum security 

inmate population. For the purposes of this review, we did not include non-U.S. citizen 

inmates in our scope because they are not eligible for incarceration alternatives due to 

their status as non-U.S. citizens.

17According to BOP’s fiscal year 2017 congressional budget justification, BOP notes that 

based on research, female offenders generally do not require the same degree of security 

as male offenders; therefore, a modified classification system is used for female inmates. 

Overview of BOP’s 

Population and Institutions
Page 14 GAO-16-516 Alternatives to Incarceration

Table 4: Number and Percentage of Inmates in the Custody of Bureau of Prisons 

(BOP), by Institutional Security Level, as of February 27, 2016

Institutional Security 

Level

Number of Inmates 

Incarcerated 

Percentage of Inmates 

Incarcerated

Minimum 32,839 16.8

Low 74,078 38.0

Medium 58,372 29.9

High 23,100 11.8

Unclassifieda 6,790 3.5

Totalb 195,179 100

Source: GAO analysis of Federal BOP data. | GAO-16-516

a

Inmates that have not yet been assigned a security level are considered “Unclassified.”

b

Total inmates include those incarcerated in BOP institutions, privately-managed facilities, and other 

facilities such as local jails.

Selected 

Stakeholders 

Reported Considering 

a Number of Factors 

When Using 

Alternatives at or 

before Sentencing, 

but DOJ Does Not 

Track the Use of 

Some Alternatives
Page 15 GAO-16-516 Alternatives to Incarceration

DOJ and court officials we interviewed told us they consider various 

factors when deciding whether to use an alternative to incarceration for 

certain federal offenders in the early stages of the federal criminal justice 

process. Across all the alternatives available at or before sentencing, the 

63 federal stakeholders in the 11 selected districts with whom we spoke 

(11 federal prosecutors, 25 judges, 12 defense counsel, and officials in 15 

PPSOs) most commonly reported that they considered whether the crime 

involved any acts of violence and the offender’s role in the crime. These 

stakeholders reported that such alternatives are generally targeted to 

non-violent, low-level offenders.18 These stakeholders also reported that 

other factors, such as the nature of the crime, offender’s criminal history, 

and mental health or drug abuse issues influenced their decisions, but the 

extent to which these specific factors were considered varied by the type 

of alternative under consideration.19 Table 5 below and the discussion 

that follows identify and describe the most commonly considered factors 

among the federal stakeholders we interviewed, by type of alternative.

 18In some districts, U.S. Probation and Pretrial Services Offices are combined. For 

example, these services are combined in some of our selected districts such as the 

Northern District of Georgia and Southern District of Iowa. For the purposes of this review, 

we counted each meeting we held with U.S. Probation and Pretrial Services Offices 

officials. Also, examples of low-level offenses may include offenses outside of United 

States Attorneys’ district-specific priorities or below thresholds established for specific 

offenses such as fraud-related offenses under a certain amount and drug offenses which 

do not involve violence, firearms, or large scale trafficking conspiracies.

19To obtain perspectives on the types of factors considered when deciding whether to use 

an alternative to incarceration before or at sentencing, we selected a limited number of 

judicial districts to represent two different groups of judicial districts—those that use courtinvolved pretrial diversion alternatives and those that do not. 

Selected Stakeholders 

Reported Considering 

Presence of Violence and 

Offender’s Role in the 

Crime, Among Other 

Factors, When 

Determining Use of 

Alternatives to 

Incarceration
Page 16 GAO-16-516 Alternatives to Incarceration

Table 5: Examples of Factors Stakeholders Reported Considering When Determining Use of Alternatives to Incarceration at or 

Before Sentencing

Factor Cited 

Case Referral to 

State and Local 

Prosecutors

Pretrial 

Release 

Title 9 Pretrial 

Diversion

CourtInvolved 

Pretrial 

Diversion

Sentencing 

Alternativesa

Nature or seriousness of the crime committed Y Y Y Y Y

Non-violent, low-level offender Y Y Y Y N

Offender has drug abuse or mental health issues N Y N Y Y

Offender’s criminal history N Y Y N Y

Offender’s family and community ties N Y N N Y

Offender’s education level or employment status N Y N N Y

Time and resources required to prosecute lowlevel, non-violent casesY N N Y N

Recommendations or information from other 

stakeholders (ex. Probation and Pretrial Service 

Officers, United States Attorneys, or federal 

defenders)

N Y N N Y

Offender’s past conduct while on supervised 

release

N Y N N N

Availability of court-involved diversion practice N N Y N N

Federal Sentencing Guidelines N N N N Y

Professional judgment N N N N Y

Legend: Y = Yes; N = No

Source: GAO analysis of information provided by United States Attorney Offices, federal defenders and associated criminal justice panel attorneys, and federal judiciary branch officials in selected federal 

judicial districts. | GAO-16-516

Note: Factors listed are not exhaustive and reflect responses provided by stakeholders. In obtaining 

this information, we did not explicitly ask about specifically defined factors but rather asked 

stakeholders to generally describe the factors they consider when choosing to use an alternative for 

an offender. Consequently, stakeholders may also potentially consider other factors not identified.

a

For this analysis, we specifically asked district judges about factors they consider when using 

probation. However, other sentencing alternatives include community service, community 

confinement, home confinement, and intermittent confinement.

Case referral to state and local prosecutors: Eleven federal 

prosecutors in 11 districts with whom we spoke reported that they 

consider the seriousness of the offense, as federal prosecution is typically 

reserved for cases that are considered higher level or more serious 

cases, such as those involving drug cartels, racketeering, and conspiracy. 

Prosecutorial guidelines establish the thresholds for prosecution which 

are set at the district level; therefore, thresholds may vary from district to 

district. Some prosecutors also reported considering the amount of time 

and resources that would have been required to prosecute these lowlevel, nonviolent cases. For example, four federal prosecutors noted that 
Page 17 GAO-16-516 Alternatives to Incarceration

the amount of time used to prepare for a trial can be time-consuming, so 

referrals to state prosecutors can help reserve resources for the higher 

level or more serious cases.

Pretrial Release: The 12 magistrate judges with whom we spoke most 

frequently reported considering the nature of the crime when considering 

whether to release an offender before trial. Magistrate judges also 

frequently reported factors such as offender’s criminal history (11 of 12), 

supporting ties of family and community (11 of 12), past conduct while on 

supervised release, such as probation (11 of 12), offender’s employment 

status (10 of 12), and offender’s drug addiction or abuse and mental 

health issues (9 of 12). For example, 2 of these 9 judges indicated that if 

the offender has a drug or mental health problem, they consider 

alternatives such as a drug or mental health treatment program instead of 

incarceration, or they establish conditions such that the offender is 

regularly tested for drugs or counseling while on pretrial release. Some 

magistrate judges (6 of 12) also stated they rely on recommendations 

from the PPSO officer in making their decision related to pretrial release.

For example, 4 magistrate judges with whom we spoke stated that they 

rely heavily on these recommendations when deciding to release or 

detain an offender because the PPSO officer generally conducts a 

thorough pretrial investigation of the offender. Three magistrate judges 

also reported using information provided by others, such as the USAO or 

federal defenders, on the nature and severity of the crime or any 

extenuating circumstances, such as mental illness or drug addiction, in 

their decisions.

Title 9 Pretrial Diversion Program: Ten of the11 federal prosecutors 

with whom we spoke—who have discretion over whether to use Title 9 

pretrial diversion for offenders—noted that they most frequently consider 

the offender’s criminal history and the nature or seriousness of the 

offense. In particular, they reported that, generally, the program is used 

for first-time offenders and offenders who have committed low-level, 

nonviolent offenses or white collar crimes such as Social Security or mail 

fraud. In districts that have other alternatives, such as court-involved 

pretrial diversion practices, 2 of the 6 prosecutors we interviewed stated 

that they prefer to use these other alternatives because they provide 

more intensive services and supervision compared to Title 9 Pretrial 

Diversion. For example, a prosecutor with whom we spoke indicated that 

Title 9 Pretrial Diversion is not widely used because the court-involved 

practice provides more rigorous supervision such as weekly contacts with 

offenders.
Page 18 GAO-16-516 Alternatives to Incarceration

Court-Involved Pretrial Diversion Practices: As described earlier, to 

obtain perspectives on court-involved pretrial diversion practices, we 

spoke with stakeholders in 6 districts that use such practices, and 5 

districts that do not. Within the 6 selected districts that use court-involved 

pretrial diversion practices, the 13 judges, 6 prosecutors, 6 defense 

counsel, and officials in 9 PPSOs with whom we spoke identified a 

number of factors that led their districts to adopt such practices. Most 

frequently, they reported that three particular factors influenced their 

decision to adopt such alternatives. First, they reported that an 

awareness of effective state-level pretrial alternative programs influenced 

their decision. For example, 5 judicial branch officials (3 judges, 1 federal 

defender, and 1 PPSO officer) with whom we spoke in 3 of the 6 districts 

explained that their awareness of state-level pretrial diversion programs 

helped them understand how to replicate a similar program at the federal 

level. Further, 4 of the stakeholders with whom we spoke in 2 districts 

indicated that some federal judges who were former state judges involved 

in state pretrial diversion programs brought their past experience to the 

federal judicial system. Second, 11 stakeholders representing a mix of 

judges, federal defenders, PPSO, and USAO staff with whom we spoke in 

5 of the 6 districts indicated there is a perception that offenders may 

commit crimes as a result of addiction to drugs, and that if the addiction 

were addressed, they would be unlikely to continue to commit crimes. For 

instance, among the judges with whom we spoke in the 6 districts, 3 

indicated that many of the offenders they see in court have a substance 

abuse problem, which is generally linked to the crimes they commit. 

Given this, these judges explained that they believe that incarcerating 

these offenders would probably not resolve that problem. Third, 3 

defenders and 3 prosecutors with whom we spoke identified a perception 

that continuing to prosecute and incarcerate low-level, nonviolent repeat 

offenders drains limited federal resources as a factor influencing their 

decision to establish a pretrial diversion program. These stakeholders 

explained that trial preparation for such prosecutions can be timeconsuming and costly. Five of these 6 stakeholders noted that courtinvolved pretrial diversion practices can be mutually beneficial to the 

offender and the district by providing an opportunity for the offender to get 

help to change their lives for the better while helping the district to focus 

resources on the most serious crimes.

While stakeholders in our 6 selected districts that use court-involved 

pretrial diversion practices identified common reasons for adopting such 

practices, we found that the factors stakeholders in these districts 

consider when determining whether to use this alternative for a given 

offender may vary depending on the specific criteria and design of the 

What is a court-involved pretrial diversion 

practice?

In addition to Title 9 Pretrial Diversion, federal 

criminal justice stakeholders within some 

judicial districts have voluntarily established 

court-involved pretrial diversion practices or 

specialty courts that handle specific offender 

populations such as veterans, or those with 

specific problems such as substance abuse or 

mental health issues that appear to be the 

root cause of their criminal activity.

Unlike traditional diversion, court-involved 

pretrial diversion practices vary in structure 

and do not uniformly result in the avoidance of 

a federal conviction upon successful 

completion. While some provide for a full 

dismissal of charges, others may provide for a 

sentence of probation or little to no 

incarceration. Also, unlike Title 9 Pretrial 

Diversion, courts are primary actors in these 

practices and must participate in their 

creation.

Source: GAO analysis of Department of Justice information. |

GAO-16-516
Page 19 GAO-16-516 Alternatives to Incarceration

respective practices. For example, in the Western District of Washington, 

stakeholders reported that they consider factors including whether the 

offender’s criminal behavior is motivated by substance abuse issues, 

whether the offender is a resident of the district, and the number of prior 

felony convictions they have had, but admission to the program is not 

limited to a specific type of crime.20 In contrast, stakeholders in the 

Southern District of California reported that they consider similar factors 

but their program is specifically targeted to young offenders charged with 

alien smuggling and drug trafficking offenses.

Within the 5 districts that have not adopted court-involved pretrial 

diversion programs, 3 judges, 2 prosecutors, 3 defense counsel, and 

officials in 2 PPSOs with whom we spoke most frequently identified a lack 

of interest or need for such programs as reasons why their districts have 

not adopted them. Some stakeholders also reported not having eligible or 

qualified offenders (5 prosecutors and 2 judges), a lack of resources to 

operate such programs (2 judges, 1 PPSO, and 2 prosecutors), or having 

other alternative programs available (2 prosecutors and 2 defenders). For 

example, stakeholders in all 5 districts explained that they do not have 

enough low-level, nonviolent offenders who would qualify for a courtinvolved pretrial diversion program to make operating a program 

worthwhile. Furthermore, according to 5 prosecutors and 2 judges we met 

with in these districts, their districts’ prosecutorial priorities focus on 

higher level offenders who would not qualify for this type of program. 

Additionally, 2 judges, 2 prosecutors, and 1 PPSO officer in 4 districts 

cited a lack of resources to operate a court-involved pretrial diversion 

program as current caseloads are already extensive.

Sentencing Alternatives: For those offenders who do not go through a 

pretrial diversion program and are instead convicted through the normal 

criminal justice process, district judges may hand down sentences that 

involve incarceration or alternatives to incarceration, such as probation. 

When asked about what factors they consider when determining 

sentencing for an offender, 8 of 13 district judges we spoke with in our 

selected districts stated that they consider the federal sentencing 

 20The program is open to offenders that have committed any offense except possession of 

a firearm during the commission of the alleged offense, felon in possession, sexual 

offenses or history thereof, or a serious violent offense or history thereof.
Page 20 GAO-16-516 Alternatives to Incarceration

guidelines in their decisions.21 The sentencing guidelines generally take 

into account the seriousness of the offense and the offender’s criminal 

history, however, because the guidelines are advisory, 6 of 13 judges 

noted they may choose to deviate from the guidelines and instead 

consider other options for sentencing, such as probation. Other common 

factors the judges reported considering included the offender’s personal 

situation, such as family and community ties (8 of 13 judges), whether the 

offender had a drug addiction problem (7 of 13 judges), education level 

and employment status (6 of 13 judges); and the recommendation from 

PPSO officers (6 of 13 judges).

The judges also reported that the manner in which they consider these 

factors are very case specific and individualized. For example, of the 8 

judges that consider family support as a factor in deciding whether to use 

a sentencing alternative, 3 explained that if the offender has strong family 

ties, probation would probably be a better sentence than incarceration so 

that the offender could get the needed support from family. Additionally, 

when asked a general question about what factors they consider when 

deciding on a sentence for an offender, 7 district judges explained that 

they base decisions of whether to sentence offenders to incarceration 

alternatives on their professional judgment regarding whether the 

offenders seem receptive to changing their criminal ways and working 

toward a better life without crime. For example, one district judge 

explained that he considers whether imposing a minimum of 12 months of 

incarceration will help to rehabilitate or deter an offender from committing 

future crimes as compared to offering them greater leniency through an 

alternative, such as probation.

 21The federal sentencing guidelines provide judges with a set of consistent sentencing 

ranges to consult when determining a sentence. The other 5 judges did not report that 

they did not consider the guidelines; rather, we asked judges to identify the factors they 

consider, and 8 of these judges specifically named the sentencing guidelines, while the 

other 5 did not specifically identify the guidelines in the discussion.
Page 21 GAO-16-516 Alternatives to Incarceration

As figure 2 shows, based on data from AOUSC, DOJ, and the USSC on 

the use of alternatives to incarceration at or before sentencing, the overall 

use of these alternatives nationally and across the subset of districts that 

have adopted court-involved pretrial diversion practices has been largely 

consistent during the respective time periods for which they are 

available—from fiscal years 2009 to fiscal years 2015 for alternatives at 

sentencing; from fiscal years 2012 to 201 for pretrial release; and from 

fiscal years 2014 to 2015 for referrals to another jurisdiction.

Figure 2: Rates of Use of Alternatives to Incarceration within Federal Criminal Justice System before Trial and at Sentencing

Notes: According to Executive Office for U.S. Attorneys officials, due to a change in coding 

processes, comparable data on referrals to another jurisdiction from fiscal years 2009 through 2013 is 

not available. According to Administrative Office of the U.S. Court officials, pretrial release data for 

years prior to 2012 are not available.

a

Data excludes illegal alien cases.

b

These values reflect the percentage of all cases in which an offender’s sentence included one or 

more alternative to incarceration (i.e., home confinement, community confinement, probation, or 

community service).

c

The districts that have adopted court-involved pretrial diversion practices include the following: 

Central District of California, Eastern District of California, Southern District of California, Central 

District of Illinois, District of Massachusetts, Eastern District of New York, District of Arizona, District 

of Connecticut, District of New Hampshire, District of Oregon, District of South Carolina, Eastern 

District of Missouri, District of Utah, Southern District of Ohio, Western District of Texas, Western 

District of Virginia, and the Western District of Washington.

Use of Alternatives to 

Incarceration has Largely 

Remained Consistent, but 

DOJ Lacks Reliable Data 

on the Use of Pretrial 

Diversion
Page 22 GAO-16-516 Alternatives to Incarceration

However, in performing our analysis of the data on the use of alternatives 

over time, we found that DOJ’s data on pretrial diversions were unreliable 

for two reasons. First, DOJ’s pretrial diversion data do not distinguish 

between Title 9 pretrial diversions and diversions that were the result of a 

court-involved pretrial diversion practice. As previously described, Title 9 

pretrial diversions are at the discretion of the U.S. Attorney, divert 

offenders from prosecution into a program of supervision by the PPSO, 

and, if successful completed, can result in the offender not being 

prosecuted or a dismissal of charges. Court-involved diversion practices 

involve additional stakeholders—including federal judges and defense 

counsel—with participation generally determined by all stakeholders. 

Unlike Title 9 pretrial diversions, participants in court-involved diversions 

generally meet regularly with court officials to discuss progress. 

Moreover, if successful, participants in court-involved diversions may 

avoid prosecution or have charges dismissed, like those in Title 9 pretrial 

diversion, but may also receive a reduced sentence. Therefore, given the 

differences between these types of diversion in terms of the stakeholders 

involved, the level of supervision provided to offenders, and the outcomes 

successful completion can lead to, they are each unique types of 

diversion. Given DOJ’s current data entry process, however, while DOJ 

has data on the counts of cases that were diverted pretrial overall, DOJ 

cannot determine whether the diversions were through Title 9 pretrial 

diversion or a court-involved pretrial diversion practice.

According to EOUSA officials, DOJ lacks detailed data on the type of 

pretrial diversion used because DOJ’s data entry processes do not allow 

for USAO staff to make entries according to the type of pretrial diversion 

used. According to EOUSA officials, the Legal Information Office Network 

System (LIONS)—EOUSA’s case management system—is set up so that 

only a single disposition code can be used by USAO staff when entering 

a diversion case into the system. Consequently, both Title 9 pretrial 

diversion cases and cases that have been diverted through court-involved 

pretrial diversion programs are recorded simply as pretrial diversion. 

EOUSA officials stated that given the volume of complex data that is 

already required to be entered into the system for any given case, it can 

be difficult to add new codes into the data entry process and ensure they 

are being entered correctly and consistently across all districts where the 

data is being entered. However, while the officials noted that they 

recognized the need to revise the system to improve the data and make it 

more specific and useful they did not identify any specific actions or plans 

to do so.
Page 23 GAO-16-516 Alternatives to Incarceration

Second, DOJ’s pretrial diversion data has limited reliability due to 

potential variability as to when and whether the pretrial diversion code is 

entered into LIONS by a USAO. According to EOUSA officials, while DOJ 

has established some coding policies for pretrial diversion in LIONS, it 

has not provided specific guidance as to when in the process USAOs are 

to enter the cases under the pretrial diversion disposition code. Therefore, 

this could result in inconsistent and unreliable data on the use of pretrial 

diversion. For example, according to officials, some USAOs may enter 

the pretrial diversion code into the system for a case when the offender 

enters into a diversion program, while other USAOs may wait until the 

offender has completed the program. The officials noted that there may 

not be a record of all instances in which an offender enters a pretrial 

diversion program, but does not successfully complete it. For instance, if 

an offender does not successfully complete the pretrial diversion program 

and the USAO subsequently files charges against the offender, the USAO 

may solely enter the charges filed against the offender in LIONS, but 

never indicate that the offender first entered a pretrial diversion program, 

but then did not successfully complete it. As a result, EOUSA’s data may 

not consistently capture the total number of instances in which such 

diversion is offered. EOUSA officials stated that they have not provided 

specific guidance on when to enter pretrial diversion codes in LIONS 

because of the relatively small number of diversion cases relative to the 

total cases handled by USAOs that would require such coding and to 

mitigate the likelihood of further complicating the data entry process for 

USAO staff. However, EOUSA officials recognized the potential value in 

being able to comprehensively track the data to help it determine what 

types of pretrial diversion are being used and in what districts.

One of the key principles of the Smart on Crime Initiative is for DOJ to 

pursue alternatives to incarceration for low-level, nonviolent offenders, 

and DOJ has specifically recommended the use of court-involved pretrial 

diversion practices as a means of putting this principle into action. 

According to Standards for Internal Controls in the Federal Government, 

management should ensure that events are being recorded in an 

accurate and timely manner.22 Further, the standards also state that 

information should be recorded and communicated in a form and within a 

time frame that enables them to carry out their responsibilities. In 

addition, the recently updated standards that went into effect at the start 

 22GAO/AIMD-00-21.3.1.
Page 24 GAO-16-516 Alternatives to Incarceration

of this fiscal year further clarify that agency management should use 

quality information to achieve the entity’s objectives, which can include 

obtaining relevant data from reliable sources that are reasonable, free 

from error and bias, and faithfully represent what they purport to 

represent.23 The updated standards also state that management should 

process the data into quality information, and use the information to make 

informed decisions and evaluate the entity’s performance in achieving key 

objectives.

By taking steps to revise its case management system to separately track 

the use of Title 9 diversion and court-involved pretrial diversion programs, 

and issuing guidance to USAOs as to how and when to use them—for 

instance, when the offender enters the program, completes the program, 

or both—-DOJ would have more reliable and complete data to determine 

what types of pretrial diversion are being used, in what districts, how 

frequently, and how successfully. In turn, DOJ would also be better 

positioned to revise its guidance and direction, as necessary, to USAOs 

on how they might use pretrial diversion alternatives to more effectively 

support the Smart on Crime initiative.

 23GAO, Standards for Internal Control in the Federal Government, GAO-14-704G 

(Washington, D.C.: Sept. 10, 2014). GAO recently revised and reissued its Standards for 

Internal Control in the Federal Government. These updated standards became effective 

October 1, 2015. Because these standards were not in effect for the specific time period of

our analysis, we used the updated standards as context for the type of data and 

information to include as part of an effective internal control system in the future, not as 

criteria to evaluate the current controls.
Page 25 GAO-16-516 Alternatives to Incarceration

According to BOP officials, when placing inmates into incarceration 

alternatives they consider factors that are in accordance with BOP policy 

and guidance which also provides for the overall process for identifying 

and placing eligible and appropriate inmates into the incarceration 

alternatives of RRCs and home confinement. In particular, according to 

this policy and guidance, the eligibility requirements for an inmate’s 

placement into the alternatives have been set by the Second Chance Act 

of 2007.24 Moreover, according to BOP guidance, in addition to 

considering the basic eligibility requirements, BOP staff must consider the 

appropriateness of placing inmates into RRCs and home confinement as 

well as evaluate each inmate for their individual reentry needs, risk for 

 24The 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 not to exceed 6 months, or 10 percent of an 

inmate’s sentence), and home confinement 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 

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 reintegration into 

the community.

BOP Considers 

Statutory 

Requirements and 

Inmate Risk Levels 

when Deciding 

Whether to Use 

Incarceration 

Alternatives and Has 

Increased Use of 

Such Alternatives for 

Minimum and Low 

Security Inmates

BOP Guidance and Policy 

Identifies Key Statutory 

Requirements and Risk 

Levels when Deciding 

Whether to Place Inmates 

into Incarceration 

Alternatives
Page 26 GAO-16-516 Alternatives to Incarceration

recidivism, and risks posed to the community for placing them in RRCs or 

home confinement. For example, BOP guidance states that research has 

shown inmates with low reentry needs and a low risk of recidivating do 

not benefit from placement in a RRC and could become more likely to 

recidivate than if they were not placed.25 Therefore, according to BOP 

guidance, home confinement is BOP’s preferred option for inmates with 

low needs and of low risk.26

BOP’s policy and guidance lays out a multistep process for placing 

inmates into the alternatives once eligible inmates are identified. A variety 

of BOP and other officials are involved in the process such as BOP 

officials at the institution, Residential Reentry Managers (RRMs), contract 

staff at RRCs, and PPSO officials, depending on the type of alternative 

being considered. Figure 3 summarizes BOP’s process for placing 

inmates into RRCs and home confinement.

 25BOP’s primary risk prediction instrument for identifying the risk levels for inmates, 

among other things, considers the inmate’s criminal history, the severity of their offense, 

age, education levels, history of escape attempts, living skills, family and community ties, 

and public safety factors such as whether the inmate is a sex offender or deportable alien. 

In addition to the risk assessment, as part of their evaluation to determine if an inmate is 

appropriate for placement, BOP guidance states that officials are also to consider the 

inmates’ skill development plan, which is a tool that can be used to identify skill deficits 

that may contribute to recidivism.

26For placement in home confinement, BOP guidance lays out additional requirements 

inmates must meet. For example, according to BOP guidance, the basic criteria for 

placement in home confinement includes: the inmate having an appropriate release 

residence (e .g., positive environment free from criminal/drug use activity and a 

reasonable distance from the RRC, typically less than 100 miles); no recent major 

disciplinary issues; and medical or mental health needs of the inmate can be met in the 

community and funded by the inmate or other resources. For placement directly into home 

confinement, BOP guidance states that additional factors to be considered include: a lack 

of public safety factors, excellent institutional adjustment, a stable residence with a 

supportive family, confirmed employment (if employable), and little or no need for the 

services of an RRC.
Page 27 GAO-16-516 Alternatives to Incarceration

Figure 3: Bureau of Prisons’ Process for Placing Inmates into Residential Reentry Centers (RRC) and Home Confinement

BOP officials and RRC contractors with whom we spoke reported that 

they consider factors identified in BOP policy and guidance when 

attempting to place inmates into incarceration alternatives. In addition to 

the eligibility and appropriateness of an inmate for placement in an 

alternative, staff with 3 of the 4 BOP institutions and three of the four 

RRM offices we spoke with stated that they take into account factors such 

as whether the inmate has committed a sexual offense because they 

must consider whether the locality of the RRC the inmate may be placed 

in has any zoning restrictions that prohibit sex offenders from locating 

there. Officials at 3 BOP institutions and two RRM offices we spoke with 

also mentioned that they consider whether an inmate has any medical 

issues that may be difficult to manage in an RRC environment. Staff at all 

four RRM offices we spoke with indicated that another key factor they 

consider when placing an inmate into an RRC is the availability of 

bedspace within their desired placement area. Officials at three of the four 

contracted RRCs we met with indicated that when reviewing referrals for 

possible placement they also pay attention to public safety factors such 

as whether the inmate is a sexual offender, a member of a gang, or might 

otherwise pose a threat to RRC staff in general.

In addition to placing home confinement eligible and appropriate inmates 

with contracted RRCs for monitoring, BOP’s process also allows RRMs 
Page 28 GAO-16-516 Alternatives to Incarceration

the option to refer inmates into home confinement through a joint BOP -

PPSO program known as the Federal Location Monitoring (FLM) 

Program. If accepted into the program by PPSO, the inmate is supervised 

by a PPSO officer instead of RRC staff while on home confinement. 

PPSO officials in six of the nine districts among our selected districts that 

were participating in the FLM program stated that they considered factors 

such as the inmate’s potential risks for public safety, such as whether the 

inmate is a sex offender, as well whether the inmate’s proposed living 

arrangement met program requirements when determining whether to 

accept the inmates into the program.27

From fiscal years 2009 through 2015, BOP increasingly placed inmates 

into RRCs and home confinement, with inmates designated as minimum 

and low security making up the two largest groups of inmates in RRCs 

and home confinement.28 According to BOP data, the total number of 

inmates placed into RRCs or home confinement during this period 

increased by about 16 percent from about 28,400 in fiscal year 2009 to 

almost 33,000 in fiscal year 2015. As figure 4 illustrates, relative to 

inmates of other security levels, minimum security inmates represented 

the largest numbers of inmates being placed in RRCs and home 

confinement overall with low security inmates representing the second 

largest inmate group.

 27According to the FLM interagency agreement between BOP and the Administrative 

Office of the U.S. Courts, of which the PPSO is a component, participants selected for the 

program are to ordinarily be classified as minimum security level and not have any public 

safety factors such as being a sex offender, a threat to government officials, or having 

participated in a prison disturbance, among other factors.

28Eligible inmates may also refuse to be placed in an alternative. According to BOP prison 

officials we spoke with, some inmates refuse placement, especially for placements in 

RRCs, because they feel that the placement would not be beneficial for them or they have 

concerns about living with inmates of higher security levels at the RRC, among other 

reasons.

BOP Use of Incarceration 

Alternatives for Inmates 

Increased Overall from 

Fiscal Years 2009 through 

2015, Particularly in Home 

Confinement for Minimum 

and Low Security Inmates
Page 29 GAO-16-516 Alternatives to Incarceration

Figure 4: Number of Bureau of Prisons Inmates Placed in Incarceration 

Alternatives, by Security Level, Fiscal Years 2009 through 2015

Note: Data shown includes both male and female inmates at the minimum, low, and high security 

levels. BOP does not place female inmates into the medium security level.

During the seven year period of our analysis, BOP significantly increased 

its use of home confinement among low and, especially, minimum 

security inmates. For instance, the placement of inmates into home 

confinement overall, either directly or subsequent to being in an RRC,

increased by 67 percent—from 4,594 to 7,675—for minimum security 

inmates and 58 percent—from 2,060 to 3,247—for low security inmates 

from fiscal years 2009 through 2015. Relative to the increased use of 

home confinement, placement of minimum and low security inmates into 

RRCs grew more slowly or declined slightly. For example, in fiscal year 

2009, 98 percent of minimum security inmates were placed in RRCs at 

some point, whereas by fiscal year 2015, the percentage had declined to 

87 percent. Although the total number of low security inmates placed in 

an RRC at some point increased from about 8,000 in fiscal year 2009 to 
Page 30 GAO-16-516 Alternatives to Incarceration

almost 9,100 in fiscal year 2015, the percentage overall of low security 

inmates placed into RRCs declined from 99 percent in fiscal year 2009 to 

97 percent in fiscal year 2015. Figure 5 illustrates the relative changes in 

the use of RRCs and home confinement among minimum and low 

security inmates from fiscal years 2009 through 2015.

Figure 5: Types of Incarceration Alternatives Used for Bureau of Prisons’ Minimum and Low Security Inmates, by percent, 

Fiscal Years 2009 through 2015

Note: Data shown includes both male and female inmates at the minimum, low, and high security 

levels. BOP does not place female inmates into the medium security level.

According to BOP officials, the increased use of RRCs and home 

confinement is consistent with the Second Chance Act, corresponding 

BOP implementing guidance, and BOP goals. For example, one of the 

objectives of the Second Chance Act was to expand the use of 

alternatives as a means to assist offenders overall in reentering society 

and establishing a self-sustaining and law-abiding life. Similarly, BOP 

officials also noted that BOP issued guidance in 2010 and 2013 
Page 31 GAO-16-516 Alternatives to Incarceration

specifically encouraging the use of direct home confinement for lower risk 

inmates, in order to provide bed space at RRCs for higher risk inmates. 

Consequently, the officials stated that while more inmates were placed in 

RRCs and home confinement overall, minimum and low security inmates 

were specifically targeted for placement in home confinement whenever 

possible.

Within its strategic plan, BOP has specified two measures to track 

placement of inmates into RRCs and home confinement. For its RRC 

measure, BOP aims for its institutions to place at least a certain 

percentage of their inmates into RRCs, with the specified target 

percentages varying according to their security level.29 For the first and 

second quarters of fiscal year 2015, both minimum and low security 

institutions exceeded the target set for them for this measure.30 For the 

second measure related to the use of home confinement, BOP aims for 

its Residential Reentry Management Branch to maintain 40 percent or 

more of home-confinement eligible inmates in home confinement. BOP 

has come close to—but not met—this goal. From April 2015 to 

September 2015, the most recent period for which data were available, 

the monthly percentage of home confinement eligible RRC inmates in 

home confinement fluctuated between 36.4 percent and 38.4 percent. 

According to BOP officials, it has not met its stated goal largely because 

of factors outside of its control, such as inmates lacking the resources 

and ability to locate and prepare an acceptable home location to be 

placed in home confinement in a timely manner.

As with the increased use of home confinement in general, BOP has also 

increased utilization of the FLM program as a means to provide home 

confinement to inmates, especially for minimum security inmates, as 

shown in figure 6. For example, the number of minimum security inmates 

 29According to this goal, within budgetary resources, institutions are to make maximum 

use of RRC bed space. Accordingly, BOP has established target utilization rates of the 

RRCs for institutions according to security level: minimum security-85 percent, low 

security-75 percent; medium security-70 percent; and high security-65 percent. 

30According to BOP’s strategic plan, in the first quarter of fiscal year 2015, institutions 

placed 92.4 percent of eligible minimum security inmates and 76.2 percent of eligible low 

security inmates in RRCs as compared to the stated targets of 85 percent and 75 percent 

respectively. For the second quarter of fiscal year 2015, institutions placed 93.4 percent of 

eligible minimum security inmates and 78.4 percent of eligible low security inmates in 

RRCs. 

BOP Increased Use of the 

Federal Location 

Monitoring Program
Page 32 GAO-16-516 Alternatives to Incarceration

going into the FLM program increased from 281 in fiscal year 2009 to 592 

in fiscal year 2015, a 111 percent increase. During this same time period, 

the total number of low security inmates going into the FLM program 

(both directly and subsequent to placement in an RRC) increased from 97 

in fiscal year 2009 to 157 in fiscal year 2015, an increase of 62 percent.

Figure 6: Number of Inmates Placed into the Federal Location Monitoring (FLM) 

Program, by Security Level, Fiscal Years 2009 through 2015

Note: Data shown includes both male and female inmates at the minimum, low, and high security 

levels. BOP does not place female inmates into the medium security level.

The FLM program is currently available in over half of the federal judicial 

districts and BOP officials have encouraged the expansion of the program 

into additional districts, as they noted that the program can provide cost 

advantages relative to home confinement through an RRC. According to 
Page 33 GAO-16-516 Alternatives to Incarceration

headquarters PPSO officials, approximately 51 out of the 94 federal 

judicial districts nationwide were participating in the FLM program in fiscal 

year 2015, nearly double the number of districts participating in 2010.31

To foster further expansion of the program, BOP headquarters officials 

stated that they continue to discuss and encourage the expansion of the 

program into additional districts where possible with probation officials 

both at the headquarters and district level. To encourage its use, in 2013 

BOP issued an internal memo for BOP staff regarding RRC and home 

confinement placements that stated that RRMs should consider using the 

FLM program for home confinement to the maximum extent possible 

where it is available. In terms of cost, according to BOP headquarters 

officials, the average cost to BOP of PPSO supervising an inmate in 

home confinement under the FLM program is $15 per day, whereas the 

average cost for a RRC to supervise an inmate on home confinement is 

$40 per day. Consequently, because the daily cost of home confinement 

through the FLM program is less than half that of home confinement 

through an RRC, effective utilization of the FLM program can potentially 

yield cost savings according to the officials.

Despite BOP’s increased use of the FLM program in recent years, our 

interviews with BOP and PPSO officials at headquarters and within our 

selected districts suggest that usage may vary across districts. For 

example, the program may be less utilized in some areas depending on 

the terms of the contracts BOP has with RRC operators. Of the PPSOs in 

our 11 selected districts, 9 reported participating in the FLM program. Of 

those 9 districts, 1 reported moderate use of the program while 8 reported 

that the program was either underutilized relative to available capacity or 

that BOP had not made any referrals to the program, or if it had, BOP did 

not ultimately place the inmates in the FLM program. Officials in two of 

the four BOP RRM offices with whom we spoke noted that the program is 

generally used as more of a backup option to place inmates into home 

confinement whose desired home sites are more remote and not within 

the service area of an RRC.32 According to BOP headquarters officials, 

 31Whether a district participates and the extent of their participation is at the discretion of 

each district’s Chief Probation Officer, according to AOUSC officials.

32According to a May 2013 BOP memorandum to BOP staff regarding home confinement 

and RRC placements, RRMs are to consider using the FLM program to the maximum 

extent possible where available. The memo also states that one of the requirements for an 

inmate’s placement into home confinement, in general, is that he or she has a release 

residence that is a reasonable distance from the RRC, which the guidance defines as 

typically less than 100 miles.
Page 34 GAO-16-516 Alternatives to Incarceration

RRC contract terms may either require BOP to use the RRCs for home 

confinement within the RRCs’ service areas or they guarantee RRC 

operators a minimum quota of use of their home confinement services. 

The officials stated that, consequently, depending on the terms of RRC 

contracts in place in specific areas, RRMs may generally prefer to use 

RRCs for home confinement in order to first satisfy RRC contract 

requirements which may result in less utilization of the FLM program.

BOP has also faced some instances where inmates referred to the FLM 

program have been rejected by a PPSO. For instance, PPSO officers in 5 

of the 9 districts with whom we spoke noted that they had rejected FLM 

referrals from BOP at some point. The reasons for the rejections varied—

2 of the districts noted they rejected referrals because the inmates were 

unable to secure acceptable living arrangements; 2 of the districts stated 

that BOP’s referrals were deemed to be too high risk to accept (e.g., sex 

offenders); and 1 district rejected BOP’s referrals because they were not 

made using the appropriate referral process—that is, BOP did not submit 

the referral through BOP’s RRM. Further, an official in one of the four 

RRMs with whom we spoke stated that he referred inmates to the FLM 

program, but most were subsequently rejected by the local PPSO which 

told them the inmates were not appropriate for the program—for instance, 

because the inmates referred were higher risk than acceptable. BOP 

headquarters officials stated that the rejection of referrals for risk reasons 

is likely due to the fact that BOP and PPSO use different risk assessment 

tools which may result in different risk scores of inmates. The officials 

also noted that regardless of risk scores, the Chief Probation Officer in 

each district has the final discretion to accept or reject inmates as he or 

she deems appropriate for the district.

The fiscal year 2015 interagency agreement between BOP and PPSO for 

the FLM program calls for BOP and PPSO to jointly develop additional 

plans for identifying and selecting inmates, which could help reduce 

rejections. According to BOP and PPSO officials, the interagency 

agreement itself identifies the basic criteria for identifying and selecting 

inmates into the FLM. Officials with BOP and PPSO at headquarters 

stated that they maintain an ongoing dialogue with each other about the 

FLM program and regularly discuss the referral process including any 

unique cases as well as any other related process issues or concerns. 

According to BOP headquarters officials, they have not issued additional 

formal guidance on the FLM program, beyond the interagency 

agreement, because the ability to participate in the FLM differs across 

districts depending on the workload and capacity of the PPSO. However, 

both BOP and PPSO officials at headquarters stated that they regularly
Page 35 GAO-16-516 Alternatives to Incarceration

communicate to promote use and understanding of the program across 

districts, as well as to help minimize and address any rejections from the 

program, as envisioned by the agreement.

DOJ has not measured the outcomes or identified the cost implications of 

the Title 9 and court-involved pretrial diversion programs33 DOJ has 

decision-making power and expends resources on these incarceration 

alternatives, which are carried out at or before sentencing. While the 

department has conducted a survey to identify which USAOs use courtinvolved pretrial diversion practices and obtain any evaluations that 

USAOs have conducted, in considering the information obtained, the 

survey did not result in meaningful information on program outcomes. 

According to the official, in late 2014, EOUSA surveyed the USAOs 

regarding the implementation of the department’s Smart on Crime 

initiative. The survey asked about their use of court-involved pretrial 

diversion practices, such as a presentence diversion court, and, if they 

used such a court, whether the court was evaluated or assessed.

According to the survey results, 16 out of 93 USAOs responded that their 

districts were using a court-involved pretrial diversion court practice and 

 33The decision to release or detain a defendant prior to trial is made by a judicial officer, 

not DOJ, as is the decision to sentence a defendant to probation. For this reason, we did 

not focus on DOJ’s efforts to measure their outcomes or cost implications. Further, while 

DOJ makes the decision to refer a case to state and local entities for prosecution, 

additional resources expended on such a prosecution are at the state or local level. As a 

result, we did not focus on DOJ’s efforts to measure the outcomes or cost implications of 

this alternative. 

DOJ Has Tracked 

Some Data on the 

Cost Implications of 

Alternatives to 

Incarceration, but 

Could Better Measure 

Outcomes

DOJ Has Not Measured 

the Outcomes and Cost 

Implications of Pretrial 

Diversion Programs, but 

the Judiciary Has 

Collected Some Data
Page 36 GAO-16-516 Alternatives to Incarceration

some respondents provided descriptive information on the number of 

participants and program operations. According to the EOUSA official, 

when responding to the survey question as to whether the court or 

practice was assessed or evaluated, only one office provided 

documentation—a 2013 summary that a PPSO officer compiled of the 

accomplishments of the district’s pretrial diversion court and the potential 

cost savings realized through the use of the court.34 EOUSA officials 

stated they conducted another survey of the USAOs in late 2015 that 

asked similar questions about the use of court-involved pretrial diversion 

practices, but did not include the question about whether the practice was 

evaluated. The officials stated that they expect to have results from the 

survey in the spring of 2016. According to DOJ officials, the information 

from these surveys is to inform a key indicator DOJ created for the Smart 

on Crime Initiative that tracks the number of diversion courts. However, 

while the data from survey responses may provide information on how 

many districts are using the practices, the data will not provide systematic 

information on the costs or outcomes associated with the use of those 

practices.

Beyond the descriptive information gathered from the survey, DOJ has 

not obtained data that would help it to measure the outcomes or cost 

implications of the use of Title 9 and court-involved pretrial diversion 

programs. According to an EOUSA official, DOJ has not yet measured 

the outcomes and cost implications of pretrial diversion programs 

because it lacks the resources that would be required to conduct a 

comprehensive evaluation. Specifically, the EOUSA official suggested 

that a third party, such as a research institute, would be best suited to 

conduct an in-depth evaluation and that hiring such a third party would 

require resources that are not presently available from DOJ.

Further, of our 6 selected districts that were using court-involved pretrial 

diversion practices, officials at the USAOs and PPSOs in 2 districts stated 

that they are in the process of attempting to use outside entities, such as 

graduate-level students or faculty at local universities, to conduct 

 34According to the survey results, 24 USAOs responded that their districts’ diversion 

courts had been evaluated or assessed in fiscal year 2014. According to an EOUSA 

official familiar with the survey, there appeared to be an overresponse to the question 

given that only 16 previously responded that their districts were using a pretrial diversion 

court. The EOUSA official believed this may have been due to confusion in the 

terminology used in the questions.
Page 37 GAO-16-516 Alternatives to Incarceration

evaluations of those practices. For example, officials with the USAO in 

the Western District of Washington stated that they have requested grant 

funding to have the academic community work with them to evaluate their 

court-involved pretrial diversion program to determine how the program 

can expand. However, the funding had not yet been awarded. In the 

Central District of California, PPSO officials stated that they were in the 

process of selecting researchers from a local university to conduct a 

multi-year evaluation of their district’s practice, but they had not yet made 

the selection.

EOUSA and USAO officials with whom we spoke also reported that DOJ 

has not yet measured the outcomes and cost implications of pretrial 

diversion programs because of the lack of sufficient long-term data. 

According to an EOUSA official, most court-involved pretrial diversion 

practices are relatively new; consequently, most participants in practices 

across the districts have not completed the programs and any 

subsequent supervision period, making it difficult to accurately measure 

long term outcomes. For example, of the 17 districts using court-involved 

pretrial diversion practices, 5 districts reported using such practices for 5 

years or more.35 According to an EOUSA official, considering the 

relatively short time most of these practices have been in operation, the 

length of time required for participants to complete pretrial diversion 

programs (usually one to two years), and any subsequent period of postconviction supervision that may be required afterwards, the number of 

participants available to evaluate who have fully satisfied all of their 

obligations is relatively limited. Further, according to the USAO staff we 

met with in the 6 districts using court-involved pretrial diversion practices, 

they have a general awareness of how many offenders had been placed 

in the alternatives and how many have successfully completed them, but 

they do not track these data systematically because such data are not 

required by DOJ to maintain caseload counts and dispositions.

We recognize that tracking the data necessary and measuring the 

outcomes and cost implications of pretrial diversion programs would 

require resources and time. However, measuring and evaluating costs 

and outcomes would not necessarily require hiring a third party to conduct 

an assessment of diversion programs across all federal districts. For 

 35These districts were identified as using court-involved pretrial diversion practices by 

DOJ components, the Federal District Court of the Eastern District of New York, and the 

USSC.
Page 38 GAO-16-516 Alternatives to Incarceration

example, according to a PPSO official in the Eastern District of New York, 

judiciary officials in a number of districts that had implemented courtinvolved pretrial diversion programs have developed mechanisms to 

obtain data and measure some of the cost implications and outcomes of 

these programs, and were doing so without the use of a third party. For 

instance, judiciary officials in some districts have developed estimates of 

cost savings realized from the use of court-involved pretrial diversion 

programs, and PPSO officials in the Eastern District of New York 

compiled and publicly reported on these estimates in August 2015.36 See 

table 6 for the cost estimates reported by the Eastern District of New 

York.

Table 6: Estimated Cost Savings of Court-involved Pretrial Diversion Programs, by 

Federal Judicial District

Judicial District

Reported Cost Savings 

(approximate)

Program 

Implementation Year

Eastern District of New York $2.1 Million 2012

Central District of California $3.9 Million 2012

Central District of Illinois $13 Million 2005

District of South Carolina $2.8 Million 2010

Southern District of California $5.5 Million 2010

District of Connecticut $1 Million 2013

District of New Hampshire $500,000 2010

District of Oregon $1.8 Million 2011

Source: United States District Court for the Eastern District of New York, published August 2015. | GAO-16-516

Note: This data has not been evaluated by the GAO and therefore the estimates have not been 

confirmed to be reliable.

Additionally, judiciary officials have also tracked data related to the 

outputs and outcomes of the court-involved pretrial diversion practices. 

For instance, officials in seven districts have tracked data on the number 

of offenders successfully completing the programs. This information was 

collected and compiled by the Eastern District of New York and reported 

in August 2015, as shown in table 7. We have previously reported that 

tracking successful completion can be a proxy measure for the 

effectiveness of deferred prosecution and non-prosecution agreements 

 36In March 2016, PPSO officials in the Western District of Washington provided costsavings for their court-involved pretrial diversion program of $1.6 million.
Page 39 GAO-16-516 Alternatives to Incarceration

DOJ has used in lieu of prosecuting corporations for corporate crime.37

Such agreements are similar in function to the type of agreements used in 

diverting individual offenders through pretrial diversion.

Table 7: Pretrial Services Data on Some Federal Judicial Districts’ Use of Court-involved Pretrial Diversion Practices, August 

2015

District Name of program Information on number of participants (As of August 2015)

Central District of 

California

Conviction and Sentence Alternatives 97 defendants selected; 34 graduated; and 4 were unsuccessful 

in completing the program.

Central District of 

Illinois

Pretrial Alternatives to Detention Initiative 104 participants (out of a total of 126) had successfully 

completed the program with 12 currently in the program.a

District of New 

Hampshire

Law Abiding, Sober, Employed and 

Responsible 

Of the 15 pretrial participants, 7 have successfully graduated, 6 

did not successfully complete the program, and 2 were still 

actively participating.

Eastern District of 

New York

Pretrial Opportunity Program & Special Option 

Services Programs for youthful offenders

A total of 27 out of 57 participants have concluded their 

participation in the programs. Of those, 19 successfully ended 

their pretrial release supervision, while 8 were unsuccessful in 

completing the program.

District of South 

Carolina

BRIDGE Program 72 participants entered the program. 27 had graduated; 22 

remained active in the program; and 23 have either voluntarily 

withdrawn or were dismissed from the program.

Southern District 

of California

Alternative to Prison Solutions Since 2010, more than 397 participants have reportedly entered 

the program.b

Western District of 

Washington

Drug Reentry Alternatives Model Four participants have graduated from the program since 

December 2013.c

Source: GAO analysis of data provided by the United States District Court for the Eastern District of New York. | GAO-16-516

a

Reported as of October 2014.

b

In March 2016, officials from the U.S. Probation and Pretrial Services Office (PPSO) of the Southern 

District of California reported that 543 participants had entered the program, 423 successfully 

completed diversion, 65 remained active in the program, and 42 were dismissed from the program.

c

In March 2016, officials from the PPSO of the Western District of Washington reported to GAO that 

the number of graduates had increased to 20 while two participants did not successfully complete the 

program.

 37See GAO-10-110. According to DOJ, deferred prosecution agreements and nonprosecution agreements are appropriate tools to use in cases where the goals of 

punishing and deterring criminal behavior, providing restitution to victims, and reforming 

otherwise law-abiding companies can be achieved without criminal prosecution. As part of 

these agreements, companies are generally required to comply with a set of terms for a 

specified duration in exchange for prosecutors deferring the decision to prosecute or 

deciding not to prosecute. For example, among other things, these terms may require 

monetary penalties, improvements to the company’s compliance program, or payment of 

restitution, among other things. 
Page 40 GAO-16-516 Alternatives to Incarceration

In addition to these estimates and data, as another means of measuring 

outcomes, judiciary officials in 3 of our selected 6 districts that use courtinvolved pretrial diversion practices reported also informally tracking 

recidivism rates of participants who have successfully completed the 

practices. For instance, officials from the PPSO in the Southern District of 

California estimated a recidivism rate of 2.8 percent for individuals who 

successfully completed the program in their district, while PPSO officials 

in the Central District of California and the Central District of Illinois 

reported that individuals who completed the respective practices in their 

districts had not committed any new crimes to their knowledge.

According to DOJ’s current strategic plan, one of its objectives is to 

reform and strengthen the country’s criminal justice system by targeting 

the most serious offenses for federal prosecution, and expanding the use 

of diversion programs, among other things. Consistent with that objective, 

the Smart on Crime Initiative includes, as one of its key principles, the 

pursuit of alternatives to incarceration for low-level, non-violent crimes. As 

part of the Initiative, DOJ has encouraged its prosecutors to consider the 

use of alternatives to incarceration and specifically encouraged more 

widespread adoption of diversion programs and practices such as drug 

courts and other specialty courts across the districts. For example, DOJ 

issued a memorandum in August 2013 to its USAOs that cited as 

examples several existing court-involved pretrial diversion practices, 

stated that the use of such programs or practices can be part of an 

effective prosecution program, and identified the potential for cost savings 

from the use of these programs based on experiences at various districts.

Given that pretrial diversion programs can help DOJ achieve its strategic 

objectives and the Smart on Crime Initiative, it is important for DOJ to be 

able to track data related to their use and cost, and to measure their 

impacts.38 According to Standards for Internal Control in the Federal 

Government, among other things, agency management should establish 

and operate monitoring activities to evaluate results of its efforts and 

programs.39 We understand that some judicial districts may not have had 

pretrial diversion programs in place long enough to fully track or assess 

 38We have previously reviewed DOJ’s efforts to implement its Smart on Crime Initiative. 

See GAO, Federal Prison System: Justice Could Better Measure Progress Addressing 

Incarceration Challenges, GAO-15-454 (Washington, D.C.: July 19, 2015).

39GAO/AIMD-00-21.3.1.
Page 41 GAO-16-516 Alternatives to Incarceration

the outcomes of a large number of offenders who have completed the 

programs. However, according to a resource cited by the Office of 

Management and Budget on program evaluation, while activities such as 

performance measurement are useful at all stages of a program’s 

maturity, they can be particularly useful for providing evidence about how 

programs are working in the early years of a program’s history when 

impacts on program outcomes may not be detectable and rigorous, highquality impact evaluations are not yet possible.40

By obtaining data on the costs and outcomes of pretrial diversion 

programs and establishing performance measures, DOJ would gain 

multiple advantages in its ability to manage these programs and optimize 

their outcomes and cost implications. First, having such data and 

measures available would better position DOJ to determine if pretrial 

diversion programs are effectively contributing to the achievement of 

department goals and initiatives. Second, such data and measures would 

better position DOJ to manage and provide additional guidance to the 

districts using the programs and practices, as necessary, to make their 

use more effective. Third, with information on the outcomes and cost 

implications of the existing programs, DOJ would be better positioned to 

determine whether and how it should encourage the use of such 

programs. Finally, should DOJ decide to pursue a more in-depth 

evaluation by an outside entity of the long term impacts and outcomes of 

the programs and practices, having such data and measures in place 

would better position DOJ to inform and facilitate that evaluation.

BOP collects data on the costs of RRCs and can measure their costs, but 

it does not collect data that would help it to measure the outcomes of 

RRCs, nor does it measure their outcomes. In particular, through the 

contracts it has with RRC operators, BOP has data on and has the ability 

to track the cost of placing inmates in RRCs.41 According to BOP, the 

total cost of RRCs in fiscal year 2015 was almost $360 million. Further, 

BOP can calculate the average daily cost for placing an inmate into an 

 40This resource was originally released as part of the 2014 Economic Report of the 

President. See White House Council of Economic Advisors, Economic Report of the 

President, Washington, D.C.: March 2014. 

41According to BOP officials, as of March 2016, BOP held 180 contracts to operate 

halfway houses and provide home confinement programs for federal inmates. These 

contracts are awarded by BOP on a competitive basis in locations nationwide. 

BOP Measures the Costs 

of RRCs and Home 

Confinement, but Lacks 

Data and Measures to 

Identify Their Outcomes
Page 42 GAO-16-516 Alternatives to Incarceration

RRC, and can compare the cost with the daily cost of housing inmates in 

minimum, low, medium, and high security institutions. Specifically, 

according to our review of BOP data, the daily cost for placing an inmate 

into an RRC is greater than the cost to incarcerate the inmate in a 

minimum security institution, but less than incarcerating an inmate in low, 

medium, or high security institutions. For example, in 2015, the daily per 

capita cost for placing an inmate in an RRC was about $71 per day.42 In 

comparison, as shown in figure 7, the daily cost in 2015 to house an 

inmate in minimum security was about $66 while for low, medium and 

high security institutions was about $80, $81, and $101, respectively.43

 42As part of their placement, inmates in RRCs are also required to pay to the RRC a 

subsistence fee of 25 percent of an inmate’s gross income if that inmate is employed, to 

help defray the costs of their community corrections placement. The subsistence payment 

is to be subtracted from the amount the RRC bills BOP for providing supervision of 

inmates. According to BOP guidance, this requirement is waived if ordered by the court or 

if the inmate faces an extreme hardship such as homelessness, unemployment due to 

physical or mental health reasons, unexpected or emergency critical health care needs, 

for example. BOP officials stated that the value of the fees that are collected is marginal 

and does not significantly defray BOP costs. Consequently, they do not track data as to 

how many inmates pay the fees or the value of the fees they pay. 

43Total daily costs to house an inmate in a BOP institution include the additional support 

costs BOP incurs related to staffing and providing food and medical services. These 

additional support costs are not incurred by BOP when an inmate is in an RRC because 

these are either part of the RRC’s responsibilities under its contract with BOP or, in the 

case of medical services, are the inmates’ responsibility while at an RRC. Excluding these 

support costs, the daily costs to house an inmate in BOP’s institutions are $59.52 at 

minimum security, $72.15 at low security, $72.65 at medium security, and $90.43 at high 

security.
Page 43 GAO-16-516 Alternatives to Incarceration

Figure 7: Daily Cost per Inmate of Bureau of Prisons Facilities and Residential Reentry Centers, Fiscal Year 2015

a

Total daily costs to house an inmate in a BOP institution include the additional support costs BOP 

incurs related to staffing and providing food and medical services. These additional support costs are 

not incurred by BOP when an inmate is in an RRC because these are either part of the RRC’s 

responsibilities under its contract with BOP or, in the case of medical services, are the inmates’ 

responsibility while at an RRC. Excluding these support costs, the daily costs to house an inmate in 

BOP’s institutions are $59.52 at minimum security, $72.15 at low security, $72.65 at medium security, 

and $90.43 at high security.

According to BOP officials, RRCs are more costly than some BOPoperated institutions because RRCs tend to be located in more urbanized 

areas in which it is usually more expensive to operate. Locations for 

RRCs are selected after BOP RRM field offices identify a need for RRC 

services in a specific area. Factors BOP identified as taken into 

consideration when locating a RRC include the number of beds needed 

as determined by the number of inmates projected to release to the area, 

prosecution trends, new initiatives, and contacts with other federal law 

enforcement agencies. Based on our comparison of the locations of 
Page 44 GAO-16-516 Alternatives to Incarceration

RRCs BOP used in 2015 with Census Bureau data on urbanized areas, 

we found that 173 of the 175 RRCs serving adult inmates were located in 

urbanized areas.44

Further, BOP can track and report the daily costs of individual RRCs, 

which can vary widely due to additional factors or features specific to the 

RRC. For example, according to BOP data in 2015, the daily costs to 

BOP for placing an inmate in an RRC averaged $89 but ranged from 

about $45 in Oklahoma City, Oklahoma to about $164 in Brawley, 

California. According to BOP officials, the variation in daily costs between 

RRCs is due to a variety of factors, such as facility sizes/inmate bed 

counts, variances in programming requirements, geographic location, and 

services offered for special populations such as mothers with infants. 

BOP officials also noted that while the RRCs may generally be more 

expensive than incarceration in minimum security facilities, the primary 

reason for using alternatives such as RRCs is not to reduce immediate 

operational costs, but to provide inmates with an opportunity to adjust to 

life outside of an institution and ease their transition back into society from 

incarceration.

Similarly, BOP can measure the costs to place inmates into home 

confinement. For inmates in home confinement under the FLM program, 

BOP officials stated that the average cost to BOP is about $15 per inmate 

per day. According to BOP, although the cost of home confinement varies 

depending on the contract terms and location, the daily cost to BOP of an 

inmate in home confinement is no more than 50 percent of the daily cost 

for an inmate placement into the supervising RRC. However, BOP 

officials stated they are in the process of updating their contracts to more 

precisely track home confinement costs through RRCs. As we reported in 

 44For this analysis, we used the Census Bureau’s definition of an urban area used for the 

2010 census. The Census Bureau identifies two types of urban areas--Urbanized Areas of 

50,000 or more people; and Urban Clusters of at least 2,500 and less than 50,000 people. 

According to the Census Bureau, these areas comprise a densely settled core of census 

tracts and/or census blocks that meet minimum population density requirements, along 

with adjacent territory containing non-residential urban land uses as well as territory with 

low population density included to link outlying densely settled territory with the densely 

settled core. We compared the location of BOP’s RRCs against the Census Bureau’s list 

of locations that met its definition of an Urbanized Area or Urban Cluster. For RRCs 

whose locations did not appear on that list, we reviewed additional Census Bureau 

information on the individual location to determine whether the location’s population was 

at least 2,500. Those locations that met that screening criteria were considered to be 

urban for the purposes of this analysis. 
Page 45 GAO-16-516 Alternatives to Incarceration

February 2012, BOP at the time did not require contractors who provide 

both RRC and home confinement services to separate out the price of 

home confinement services, and thus did not know the actual costs of 

home confinement.45 Consequently, we recommended that BOP establish 

a plan for requiring contractors to submit separate prices of RRC beds 

and home detention services. BOP concurred and determined that all 

new solicitations as of February 1, 2013, will have separate line items for 

RRC and home confinement services. BOP officials stated that at this 

time, current home confinement contracts are a mix of the two types, but 

that as the older contracts expire, new ones with separate line items for 

home confinement services will be implemented. Once all contracts have 

a separate line item, BOP officials stated they would be better able to 

identify its precise costs of home confinement going forward.

While BOP can measure the overall costs of RRCs and home 

confinement, it does not track the information needed to help measure 

their outcomes and does not have such measures in place. For example, 

one of the goals in BOP’s strategic plan calls for BOP to, among other 

things, provide services and programs to address inmate needs and 

facilitate the successful reentry of inmates into society. As mentioned 

previously, as part of its strategic plan, BOP has specified two measures 

to track placement of inmates into RCCs and home confinement—one 

measuring institutions’ placement of inmates into RRCs by security level, 

and the other measuring the Residential Reentry Division’s placement of 

home-confinement eligible inmates in home confinement. However, 

neither of these measures assesses the outcomes of RRCs and home 

confinement, such as how they relate to the recidivism rates of inmates.

The GPRAMA of 2010 requires agencies to have outcome-oriented goals 

for major functions and operations and an annual performance plan 

consistent with that strategic plan with measurable, quantifiable 

performance goals. Although GPRAMA requirements only apply at the 

DOJ-level, we have previously reported that they can serve as leading 

practices for performance planning and measurement at lower 

 45See GAO, Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to 

Reduce Inmates’ Time in Prison, GAO-12-320 (Washington, D.C.: Feb. 7, 2012).
Page 46 GAO-16-516 Alternatives to Incarceration

organizational levels, such as bureaus, offices, and individual programs.46

Specifically, the GPRAMA requires agencies to set performance goals 

and measures each year and measure progress against those goals. 

According to GPRAMA, performance measurement allows agencies to 

track progress in achieving their goals and provides information to identify 

gaps in program performance and plan any needed improvements.

According to BOP, RRCs provide programs that are intended to help 

inmates rebuild their ties to the community and to thereby reduce the 

likelihood that they will recidivate. The current measures BOP tracks are 

useful for monitoring the near term use of RRC bedspace and home 

confinement relative to targets and in planning for future RRC bedspace 

and home confinement capacity. However, they do not yield information 

or insight into the potential benefits they provide after the inmates use 

them, or potential areas for program improvement. While BOP 

headquarters officials also stated that they were aware of an effort by the 

Office of the Deputy Attorney General to solicit an outside contractor to 

evaluate and measure the outcomes provided by BOP’s use of RRCs and 

home confinement, DOJ was unable to provide any additional information 

or documentation on the details of this intended evaluation. Without data 

or measures to assess the outcomes of RRCs and home confinement, 

BOP does not know whether RRCs and home confinement—programs 

intended, in part, to help facilitate the successful reentry of inmates into 

society—are contributing to its strategic goal in this area.

Given the limitations of BOP’s current measures, taking additional steps 

to develop more outcome oriented measures could enable BOP to better 

track the outcomes of the alternatives in achieving BOP goals. BOP 

officials stated that measuring the outcomes of alternatives such as RRCs 

and home confinement is difficult due to methodological challenges, such 

as the need to designate a control group of inmates for comparison that 

fully accounts for the diverse characteristics and reentry needs of the 

inmates. We recognize the challenge in conducting such a rigorous study; 

however, other options are available to assess the outcomes of RRCs 

 46See for example, GAO, Environmental Justice: EPA Needs to Take Additional Actions to 

Help Ensure Effective Implementation, GAO-12-77 (Washington, D.C.: Oct. 6, 2011); 

Coastal Zone Management: Opportunities Exist for NOAA to Enhance Its Use of 

Performance Information, GAO-14-592 (Washington, D.C.: July 16, 2014); and Aviation 

Security: Rapid Growth in Expedited Passenger Screening Highlights Need to Plan 

Effective Security Assessments, GAO-15-150 (Washington, D.C.: Dec. 12, 2014).
Page 47 GAO-16-516 Alternatives to Incarceration

and home confinement that may pose fewer challenges, such as 

measuring how frequently offenders who have gone through RRCs or 

home confinement reoffend or find jobs. For example, in an August 2015 

testimony, the former BOP Director cited statistics on the percentage of 

inmates released from federal prison who were rearrested, had their 

supervision revoked, or returned to federal prison within 3 years. Given 

that BOP has recidivism data available on former inmates, BOP may be 

able to develop similar statistics for inmates who had served time in an 

RRC or home confinement. As another approach to obtain data and 

develop performance measures, BOP could conduct surveys of inmates 

who have completed time in RRCs or home confinement to get their 

perspectives and feedback on the outcomes of RRCs and home 

confinement in helping them to transition back into the community. 

Further, during the course of our review, BOP headquarters officials 

stated that under the direction and guidance of the Office of the Deputy 

Attorney General, a project was initiated to contract for an analysis of 

BOP's current RRC model and identify specific recommendations for 

improvement. Among other things, this analysis is to assess the degree 

to which current RRC programming addresses criminogenic needs, 

reduces recidivism, and meets the programmatic needs of the reentering 

population. In addition, the analysis is to provide recommendations for 

monitoring performance including identifying benchmarks, goals, and 

performance targets to measure and monitor outcomes. According to 

BOP officials, the contract was signed in April 2016 and the report is 

expected to be released during the summer of 2016. Given the scope and 

intent of this analysis, its results may provide BOP insights into its use of 

RRCs and home confinement. However, because this analysis is still in 

process, it is too early to determine the extent to which the results of this 

analysis will be helpful to BOP in identifying potential data and measures 

to monitor the outcomes of RRCs and home confinement. Regardless of 

the measure or method BOP determines to be most appropriate, by 

tracking data and developing performance measures to monitor the 

outcomes of RRCs and home confinement, BOP would be better 

positioned to determine how those alternatives are contributing to its goal 

of helping inmates successfully reenter society, and how to adjust its 

policies and procedures for the use of these alternatives, as necessary 

and within statutory requirements, to optimize the net benefits they can 

provide.

To help reduce the overall size and costs of the federal prison population, Conclusions DOJ components such as USAOs, in coordination with judicial branch 
Page 48 GAO-16-516 Alternatives to Incarceration

stakeholders such as PPSO and federal judges, have utilized alternatives 

to incarceration for low-level offenders and minimum and low security 

inmates at various stages of the criminal justice process. DOJ has taken 

some initial steps to collect data and measure its efforts for several of 

these alternatives. However, DOJ’s data on the use of pretrial diversions 

is of limited usefulness and reliability because EOUSA’s case 

management system does not distinguish between the different types of 

diversion and DOJ has not provided guidance to USAOs as to when and 

how pretrial cases are to be entered into the system. Additionally, 

because DOJ does not track data on the outcomes and costs of its 

pretrial diversion programs, it does not have awareness about the overall 

outcomes of the programs in achieving the department’s goals. Tracking 

the use of Title 9 diversion and court-involved pretrial diversion programs 

using separate codes, and issuing guidance to USAOs as to what codes 

to use and when to use them, would provide DOJ more reliable and 

complete data on the overall use of pretrial diversion across districts.

Further, by taking steps to obtain and track data on the outcomes of the 

programs and developing performance measures for its use of pretrial 

diversion, DOJ would be better able to determine the extent to which the 

alternatives are contributing to the achievement of DOJ goals and 

objectives and what adjustments to policies and procedures, if necessary, 

may make them more effective. Moreover, for the alternatives at 

incarceration, because BOP has not assessed the outcomes of RRCs 

and home confinement, it does not know whether RRCs and home 

confinement, which are intended, in part, to help facilitate the successful 

reentry of inmates into society, are in fact doing so. By tracking data and 

developing performance measures for RRCs and home confinement, 

BOP would be better positioned to determine how these alternatives are 

contributing to its reentry goals, adjust policies and procedures, as 

needed, and optimize their benefits.

To help ensure that USAOs consistently track the extent of use of all 

pretrial diversion alternatives, the Attorney General should direct the 

EOUSA to take the following two actions:

• revise its data system to allow it to separately identify and track Title 9 

and court-involved pretrial diversion alternatives; and

• develop guidance on the appropriate way to enter data on the use of 

Title 9 and court-involved pretrial diversion alternatives, including the 

timing of entry and use of revised codes.

Recommendations for 

Executive Action
Page 49 GAO-16-516 Alternatives to Incarceration

To help determine if pretrial diversion programs and practices are 

effectively contributing to the achievement of department goals and 

enhance DOJ’s ability to better manage and encourage the use of such 

programs and practices, the Attorney General should take the following 

two actions:

• identify, obtain, and track data on the outcomes and costs of pretrial 

diversion programs; and

• develop performance measures by which to help assess program 

outcomes.

To determine how the use of RRCs and home confinement contribute to 

its goal of helping inmates successfully reenter society, and to better 

enable BOP to adjust its policies and procedures for the optimal use of 

these alternatives, as necessary and within statutory requirements, the 

Director of BOP should take the following two actions:

• identify, obtain, and track data on the outcomes of the programs; and

• develop performance measures by which to help assess program 

outcomes.

We provided a draft of this report to DOJ, the AOUSC, and the USSC for 

review and comment. The AOUSC provided written comments, which are 

reproduced in appendix I. The USSC did not provide comments. In an email we received May 27, 2016, DOJ’s audit liaison stated that DOJ 

concurred with all of our recommendations and provided comments, 

which we incorporated as appropriate and have further addressed below.

In particular, in our draft report, we recommended that EOUSA identify, 

obtain, and track data on the outcomes and costs of pretrial diversion 

programs, and develop performance measures to help assess program 

outcomes. The DOJ liaison stated that implementing these two 

recommendations would be the responsibility of the department, not 

EOUSA exclusively. As a result, we directed these two recommendations 

to the Attorney General. In addition, the liaison provided information 

about efforts taken in April 2016, during the course of our review, by the 

Office of the Deputy Attorney General and BOP to solicit an outside 

contractor to evaluate and measure the outcomes provided by BOP’s use 

of RRCs and home confinement contracts. We reviewed and 

incorporated this information in this report, and will continue to monitor 

the implementation of this contract to identify whether it meets the spirit of 

our recommendation.

Agency Comments 

and our Evaluation
Page 50 GAO-16-516 Alternatives to Incarceration

Moreover, the DOJ liaison stated that BOP does not view inmates’ 

placement in RRCs and home confinement as incarceration alternatives 

when it is done pursuant to BOP’s statutory authority. As noted earlier in 

the report, we acknowledge BOP’s position, but, for the purposes of this 

report, we consider RRCs and home confinement to be alternatives to 

incarceration because they allow inmates to serve a portion of their 

sentences outside of a prison environment.

Additionally, the liaison stated that BOP had concerns about our 

comparison of the daily cost to house an inmate in an RRC with the daily 

cost to house an inmate in a minimum, low, medium, and high security 

institution. Specifically, BOP believed our comparison was misleading 

because the costs shown for BOP institutions includes the additional 

support costs (e.g., staffing, food, medical services) that BOP incurs 

when housing an inmate at one of its facilities and that such costs are not 

incurred by BOP when an inmate is at an RRC. The cost information we 

presented was taken directly from a table prepared by BOP that presents 

the same information for public disclosure on BOP’s website. We believe 

our comparison accurately reflects the total out-of-pocket costs to BOP 

for placing inmates in its institutions and RRCs because for the RRCs, 

those additional support costs are either the RRCs’ responsibilities under 

its contract with BOP or, in the case of medical services, are the inmates’ 

responsibility while at an RRC. However, to help provide context, we 

revised our discussion to include additional information on the support 

costs BOP incurs at its institutions. 

Further, we state in the report that one option available to BOP to assess 

the outcomes of RRCs and home confinement could be measuring how 

frequently offenders who have gone through RRCs or home confinement 

reoffend. In the emailed comments, the DOJ audit liaison stated that BOP 

does not believe recidivism data should be used as a performance 

measure for RRCs due to external and unique factors that may impact the 

likelihood an individual will recidivate, such as economic conditions. In 

addition, the DOJ liaison stated that recidivism indicators are a negative 

measurement of criminal actions that do not consider positive behavior or 

successful adjustment of the offender, while the re-integrative model and 

definition of RRC programs mandates a measure of positive behavior or 

adjustment which is very difficult to quantify or measure. We cited the 

potential use of recidivism or re-offense indicators as one example of 

using currently available data to attempt to assess outcomes of the use of 

RRCs and home confinement. In our report, we also offered other 

examples of potential positive outcomes or adjustments BOP could track 

and measure, such as tracking measures related to inmates’ ability to find 
Page 51 GAO-16-516 Alternatives to Incarceration

jobs or the value of RRCs and home confinement to inmates in helping 

them to transition back into the community as shown through results of 

surveys of inmates who have completed time in RRCs or home 

confinement. We defer to BOP to determine which measures are most 

appropriate. While we acknowledge the challenge in establishing such 

measures, we continue to believe it is important for BOP to identify, 

obtain, and track data on the outcomes of the programs and develop 

appropriate performance measures in order to be better able to monitor 

its use of RRCs and home confinement as a means to achieve its goal of 

helping inmates successfully reenter society. 

AOUSC and DOJ also provided technical comments, which we 

incorporated as appropriate.

We are sending copies of this report to the Department of Justice; 

Administrative Office of the U.S. Courts; U.S. Sentencing Commission; 

appropriate congressional committees and members, and other 

interested parties. In addition, this report is available at no charge on 

GAO’s website at http://www.gao.gov.

If you or your staff have any questions, please contact Diana Maurer 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. GAO staff who made significant contributions to this report 

are listed in appendix II.

Diana C. Maurer

Director, Homeland Security and Justice Issues
Page 52 GAO-16-516 Alternatives to Incarceration

List of Congressional Committees

The Honorable Richard C. Shelby

Chairman

The Honorable Barbara Mikulski

Ranking Member

Subcommittee on Commerce, Justice, Science, and Related Agencies

Committee on Appropriations

United States Senate

The Honorable John Culberson

Chairman

Mike Honda

Acting Ranking Member

Subcommittee on Commerce, Justice, Science, and Related Agencies

Committee on Appropriations

House of Representatives
Appendix I: Comments from the Administrative 

Office of the U.S. Courts

Page 53 GAO-16-516 Alternatives to Incarceration

Appendix I: Comments from the 

Administrative Office of the U.S. Courts
Appendix I: Comments from the Administrative 

Office of the U.S. Courts

Page 54 GAO-16-516 Alternatives to Incarceration
Appendix II: GAO Contact and Staff 

Acknowledgments

Page 55 GAO-16-516 Alternatives to Incarceration

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

In addition to the contact named above, Jill Verret (Assistant Director), 

Pedro Almoguera, Erin Butkowski, Willie Commons, William Egar, Sally 

Gilley, Christopher Hatscher, Susan Hsu, Amanda Miller, and Jeff Tessin 

made key contributions to this report.

Appendix II: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(441275)
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