Pretrial Inmates (Program Statement 7331.05)

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Field	Value
Program Statement	7331.05
Subject	Pretrial Inmates
Effective / current edition	02-27-2025 (Change Notice CN-1). The underlying Program Statement is dated August 1, 2023 — PS 7331.05 at pp. 1–2
Change notices	CN-1, February 27, 2025, signed by Acting Director William W. Lothrop — PS 7331.05 at p. 1
Supersedes	PS 7331.04, Pretrial Inmates (1/31/2003), rescinded — PS 7331.05 at p. 3
Governing statute	18 U.S.C. § 3142 (release or detention pending trial — subsection (i)(2) is the separation directive); 18 U.S.C. § 4042(a) (Bureau duties, which run to “all persons charged with or convicted of offenses against the United States”); 18 U.S.C. § 3622 (temporary release, cited in the furlough bar); 18 U.S.C. § 3585(b) (credit for this time, applied only after sentencing)
28 C.F.R. anchor	Part 551, subpart J — “Pretrial Inmates,” §§ 551.100–551.120 (21 sections). The Program Statement’s own References list cites “Title 28 CFR, Section 551.100-120” — PS 7331.05 at p. 22
Related BP forms	BP-A0203 Federal Prison System Pretrial Inmate Work Waiver/Notice of Separation · BP-A0377 Prisoner Remand · BP-A0381 Inmate Activity Record · BP-A0407 and BP-A0408 Acknowledgment of Inmate · BP-A0518 Institution Admission and Orientation Program Checklist · BP-A0562 Pretrial Inmate Interview Form · BP-A0561 Pretrial Inmate Review Report — PS 7331.05 at p. 23
Official PDF	bop.gov/policy/progstat/7331_005_cn-1.pdf

Checked against the BOP policy set · 2026-09-06. Verification methodology: see our How We Verify page.

If you or someone you love is being held in a federal detention center while a case is pending, you are governed by a different rule set than the sentenced people down the hall. Program Statement 7331.05 is the Bureau of Prisons’ instruction to its own staff on how that different rule set works — and behind it sits a real regulation, 28 C.F.R. part 551, subpart J, which binds the Bureau in a way a Program Statement alone does not.

Three things follow, and they surprise almost everyone. You cannot be made to work beyond housekeeping in your own cell and common area. You are supposed to be housed apart from convicted people to the extent practicable. And you are not eligible for most of what sentenced people are working toward — no furlough, no halfway house, no First Step Act time credits, because those all run off a sentence you do not yet have. For how the court side of this works — detention hearings, the Bail Reform Act, what happens between arrest and trial — see our Federal Pre-Trial Process page. This page carries the prison-side rule.

The rule itself: pretrial detainees

Everything in this section is transcribed from the Bureau’s own text at bop.gov/policy/progstat/7331_005_cn-1.pdf, with the page anchor for each passage. Where a passage is regulatory text reproduced from 28 C.F.R., it is identified by its section number; the Program Statement prints those in bold and its own implementing instructions in plain type.

Who counts as a “pretrial inmate”

The definition is regulatory, at 28 C.F.R. § 551.101, and it is narrower and stranger than most people assume. Transcribed verbatim from PS 7331.05 at pp. 6–7:

a. Pretrial inmate. For purpose of this rule, “pretrial inmate” means a person who is legally detained but for whom the Bureau of Prisons has not received notification of conviction. Thus, “pretrial inmate” ordinarily includes a person awaiting trial, being tried, or awaiting a verdict.

(1) Civil contempt, deportable aliens, or material witnesses. For purpose of this rule, an inmate committed for civil contempt, or as a deportable alien, or as a material witness is considered a pretrial inmate.

(2) Mental evaluation or treatment. An inmate committed under Title 18 U.S.C. Sections 4241(b) and (d), 4242(a), or 4243(b) is considered to be a pretrial inmate, whereas commitments under Sections 4243(e), 4244, 4245 or 4246 are treated as convicted inmates.

(3) Concurrent federal and state sentences. For purpose of this rule, an inmate in a status described in paragraph (a) introductory text, (a)(1), or (a)(2) of this section and who is at the same time serving a state or federal sentence is not considered a pretrial inmate.

Read the trigger carefully: the status turns on notification of conviction reaching the Bureau, not on the plea or the verdict. The Program Statement’s implementing text at p. 6 spells out what that means in practice: “The term ‘pretrial inmate’ also includes a person awaiting sentencing after having pled or been found guilty, but the Bureau has not received official notification of conviction.”

Once that notification arrives, the status flips immediately. PS 7331.05 at p. 13: “When employees receive official notification a pretrial inmate has pleaded or been found guilty, the inmate is no longer considered pretrial, and employees must change the admission assignment from pretrial to unsentenced holdover immediately, pending sentencing. Once sentenced and the inmate is pending initial designation and movement, Correctional Systems Employees will update the admission status from unsentenced holdover to holdover. The inmate will remain in holdover status until received at their designated institution.”

There is a partial reprieve. At p. 7, on holdovers: “Note: For the purpose of programming activities, inmates who are un-sentenced holdovers will be managed similarly to pretrial inmates.” But holdovers are convicted, and the Program Statement is blunt about the legal consequence: “because they are convicted, they are not subject to the rules language for pretrial inmates (Title 28 CFR, Section 551.100-120)” (p. 7).

The enumerated differences — what changes because you are pretrial

This is the artifact. Each row is transcribed from the passage cited. Where a row is regulatory text, the section number is given; where it is the Bureau’s implementing instruction, it is marked (policy).

Subject	The rule, in the source’s own words	Source
Separation from sentenced people	“To the extent practicable, pretrial inmates will be housed separately from convicted inmates.”	28 C.F.R. § 551.104 — PS at p. 12
Work	“Unless a pretrial inmate signs a waiver of his or her right not to work, the Warden may not require the inmate to work in any assignment other than housekeeping tasks in the inmate’s own cell and in the community living area.”	28 C.F.R. § 551.106 — PS at p. 13
Waiving the right not to work	“Pretrial inmates are given the opportunity to waive the right not to work. Inmates may decide to waive, or rescind a waiver, at any time. The work waiver portion of BP-A0203, Federal Prison System Pretrial Inmate Work Waiver/Notice of Separation must be used to document the waiver or its rescission.” (policy)	PS at p. 9
Competency to waive	“If the inmate is not competent to understand the consequences of signing the work waiver, the inmate may not be compelled to work other than to perform housekeeping tasks in the inmate’s own cell or in the community living area.” (policy, under § 551.114(a))	PS at p. 17
Performance pay	“The Warden may approve a pretrial inmate for performance pay and special awards.”	28 C.F.R. § 551.108 — PS at p. 15
Custody level	“a. Staff ordinarily will supervise a pretrial inmate as if classified ‘In’ custody. b. Where circumstances warrant, staff may supervise a pretrial inmate according to procedures for other custody levels.”	28 C.F.R. § 551.105 — PS at p. 13
Reducing custody	“A reduction in custody requires the Regional Director’s approval.” (policy)	PS at p. 13
Furlough	“The Warden may not grant a furlough to a pretrial inmate (18 U.S.C. § 3622).”	28 C.F.R. § 551.109(a) — PS at p. 15
Community programs	“Except by order of the court, a pretrial inmate may not be considered for participation in community programs.”	28 C.F.R. § 551.109(c) — PS at p. 15
Emergencies	“In an emergency, staff shall facilitate contact with the pretrial inmate’s attorney of record, who may seek from the court a decision concerning release from custody or an escorted trip.”	28 C.F.R. § 551.109(b) — PS at p. 15
Religious programs	“a. When consistent with institution security and good order, pretrial inmates may be allowed the opportunity to participate in religious programs with convicted inmates. b. Staff shall ensure that pretrial inmates who do not participate in religious programs with convicted inmates have access to other religious programs.”	28 C.F.R. § 551.110 — PS at p. 16
Marriage	“A pretrial inmate may request permission to marry in accordance with current Bureau of Prisons policy for convicted inmates. Staff shall contact the court, U.S. Attorney, U.S. Marshals Service, and in the case of an alien, the Immigration and Naturalization Service, to advise of the marriage request of the pretrial inmate and to request their comments.”	28 C.F.R. § 551.111 — PS at p. 16
Education	“a. A pretrial inmate may participate in correspondence and self-study educational courses. Institutional staff may also arrange for educational assistance to the pretrial inmate through the use of contract personnel or community volunteers. b. When consistent with institution security and good order, pretrial inmates may have access to the institution’s educational program.”	28 C.F.R. § 551.112 — PS at p. 16
Counseling	“a. When consistent with institution security and good order, pretrial inmates may be allowed the opportunity to receive counseling services with convicted inmates. … b. Staff shall ensure that pretrial inmates who do not receive counseling services with convicted inmates have access to other counseling services.”	28 C.F.R. § 551.113 — PS at p. 17
Group counseling minimum	“the Correctional Counselor must provide a minimum of four hours of employee-led, structured group counseling per month.” (policy)	PS at p. 17
Medical, psychiatric, psychological	“Staff shall provide the pretrial inmate with the same level of basic medical (including dental), psychiatric, and psychological care provided to convicted inmates.”	28 C.F.R. § 551.114(a) — PS at p. 17
Medication that could affect you in court	“Staff shall advise the court, through the U.S. Marshal, of medication the pretrial inmate receives which may alter the inmate’s courtroom behavior.”	28 C.F.R. § 551.114(b) — PS at p. 17
Serious illness or death	“In event of serious illness or death of a pretrial inmate, staff shall notify the committing court, U.S. Marshal, U.S. Attorney’s Office, the inmate’s attorney of record, and the designated family member or next of kin.”	28 C.F.R. § 551.114(c) — PS at p. 18
Recreation	“At a minimum, and except as noted in paragraph (d) of this section, staff shall provide the pretrial inmate with the following recreational opportunities: (1) One hour daily of outside recreation, weather permitting; or (2) Two hours daily of indoor recreation.”	28 C.F.R. § 551.115(b) — PS at pp. 18–19
Recreation equipment	“Staff shall make recreation equipment available to the pretrial inmate including, but not limited to, physical exercise equipment, books, table games, and television.”	28 C.F.R. § 551.115(c) — PS at p. 19
When recreation can be cut	“Provisions of paragraphs (b) and (c) of this section must be carried out unless compelling security or safety reasons dictate otherwise. Institution staff shall document these reasons.”	28 C.F.R. § 551.115(e) — PS at p. 19
Discipline	“a. Staff shall require the pretrial inmate to abide by Bureau of Prisons rules on Inmate Discipline (see 28 CFR part 541, subpart B), subject to the limitations of § 551.106 of this part. b. Staff shall advise the court, through the U.S. Marshal, of repeated or serious disruptive behavior by a pretrial inmate.”	28 C.F.R. § 551.116 — PS at p. 19
Every rule violation goes to Probation	“When a pretrial inmate violates any Bureau rule on inmate discipline, not just repeated or serious disruptive behavior, the United States Probation Office assigned to prepare the Presentence Investigation Report must be advised.” (policy)	PS at p. 19
Attorney visits	“The Warden shall provide the opportunity for pretrial inmate-attorney visits on a seven-days-a-week basis.”	28 C.F.R. § 551.117(a) — PS at p. 20
Legal materials	“Staff shall provide pretrial inmates with access to legal materials in the institution.”	28 C.F.R. § 551.117(b) — PS at p. 20
Calls to your attorney	“Staff shall allow the pretrial inmate, upon the inmate’s request, to telephone the inmate’s attorney as often as resources of the institution allow.”	28 C.F.R. § 551.117(c) — PS at p. 20
A law library where you are housed	“A basic law library is to be established for pretrial housing units if inmates in these units do not have access to the institution’s main law library.” (policy)	PS at p. 20
Voting	“Pretrial incarceration does not affect pretrial inmate voting rights. This means whatever the inmate’s voting status was prior to entering Bureau custody does not change unless and until they are convicted.” (policy)	PS at p. 20
Property	“A pretrial inmate may retain personal property as authorized for convicted inmates housed in administrative detention units. (See 28 CFR part 541, subpart B.)”	28 C.F.R. § 551.118(a) — PS at p. 21
Property that will not fit	“Property that cannot be stored due to lack of space at the institution will be mailed at government expense to an address supplied by the inmate.” (policy)	PS at p. 21
Court clothing	“Staff may supply the pretrial inmate with clothing for court appearances, or the inmate may supply his or her own.”	28 C.F.R. § 551.118(c) — PS at p. 21
How often court clothes are exchanged	“Exchanges will be authorized at least once a week. When the institution provides the pretrial inmate with court clothing, the court is to be contacted to determine the minimum clothing requirements deemed appropriate for courtroom appearances.” (policy)	PS at p. 21
Funds and property on release	“a. Staff shall establish procedures which allow for the release of funds and personal property to pretrial inmates released during other than normal business hours. b. Staff shall ensure that pretrial inmates are informed of existing policy relative to the commissary account and the deposit/release of funds.”	28 C.F.R. § 551.119 — PS at p. 21
Visiting	“Staff shall allow pretrial inmates to receive visits in accordance with the Bureau’s rule and local institution guidelines on visiting. Staff may allow a pretrial inmate special visits to protect the inmate’s business interests or to help prepare for trial.”	28 C.F.R. § 551.120 — PS at p. 22
Who is approved at a minimum	“At a minimum, pretrial inmates will receive approval for visits from immediate family. These persons include mother, father, stepparents, foster parents, brothers and sisters, spouse, and children.” (policy)	PS at p. 22

The numbers and deadlines

Every figure below is transcribed from the passage cited. Nothing here is calculated or predicted.

What	The source’s own words	Regulation or policy	Pin-cite
Initial assessment after admission	“Within the first 48 hours of admission, an initial assessment, separate from the medical and social intake screening, must be completed.”	Policy	PS at p. 10
Modified Admission & Orientation	“Pretrial inmates are not required to participate in the institution’s Admission and Orientation (A&O) program but, must attend a modified A & O program which includes information on the Bureau’s Sexually Abusive Behavior Prevention and Intervention Program within 30 days of intake.”	Policy	PS at p. 9
First unit-team review	“Each pretrial inmate shall be scheduled for an initial review by the unit team within 21 calendar days of the inmate’s first arrival at the institution”	Regulation — § 551.107(a)	PS at p. 14
Later reviews	“subsequent reviews shall be conducted at least every 90 days”	Regulation — § 551.107(a)	PS at p. 14
Notice before a review	“The inmate shall be notified at least 48 hours prior to the inmate’s scheduled review.”	Regulation — § 551.107(b)	PS at p. 14
Recreation floor	“(1) One hour daily of outside recreation, weather permitting; or (2) Two hours daily of indoor recreation.”	Regulation — § 551.115(b)	PS at pp. 18–19
Attorney visiting	“on a seven-days-a-week basis”	Regulation — § 551.117(a)	PS at p. 20
Group counseling	“a minimum of four hours of employee-led, structured group counseling per month”	Policy	PS at p. 17
Court-clothing exchange	“Exchanges will be authorized at least once a week.”	Policy	PS at p. 21
Trigger for alternate legal-access plans	“after a significant or disruptive event at a facility exceeds 24 hours”	Policy	PS at p. 20
When an Institution Supplement is required	“Required for Wardens at institutions where 100 or more beds have been allocated to the USMS.”	Policy	PS at p. 3

Separation — the rule everybody asks about

The separation directive exists in three places, in descending order of force.

The statute. 18 U.S.C. § 3142(i)(2) directs the judicial officer issuing a detention order to “direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.” The same subsection also directs that the person “be afforded reasonable opportunity for private consultation with counsel.”

The regulation. 28 C.F.R. § 551.100 states it as a rule binding the Bureau: “Pretrial inmates will be separated, to the extent practicable, from convicted inmates.” Section 551.104 repeats it as the housing rule.

The Program Statement. At p. 5, the Bureau explains what “practicable” means to it, and this is the sentence to know:

Title 18 U.S.C. § 3142(i)(2) states that pretrial inmates are to be separated, “to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.” Practicable is dependent on the institution’s design, structure, and operation. When it is not practicable to keep pretrial inmates separate, after intake screening and assessment, employees may permit, based upon sound correctional judgment, pretrial inmates who do not present a risk to the institution’s security or orderly running, to have regular contact with convicted inmates.

That is a very large amount of give in a three-word phrase, and it is why people held at a busy detention center routinely find themselves in a unit with sentenced holdovers. The policy does add one directive that cuts the other way, at p. 5: “Pretrial inmates identified by management as inappropriate for housing with convicted inmates will be housed separately, to the extent practicable, in the least restrictive housing necessary, consistent with security needs and following sound correctional judgment.” “Least restrictive” matters — a separation need is not, by itself, a reason to put someone in the Special Housing Unit.

Separation also ends automatically. PS 7331.05 at p. 13: “When a pretrial inmate is convicted and awaiting sentencing, the inmate no longer needs to be separated from convicted inmates.” And the policy directs staff to “verify as quickly as possible the status of a pretrial inmate who is returning from a court appearance and who had been separated from convicted inmates” — because a plea entered that morning changes the housing rule that afternoon.

The intake and assessment sequence

The admission checklist is regulatory. 28 C.F.R. § 551.103, transcribed verbatim:

Staff in administrative institutions or institutions with administrative components housing U.S. Marshals’ prisoners shall establish procedures for admitting a pretrial inmate which include, but are not limited to:

a. Verification of commitment papers; b. Search of the inmate; c. Photographing and fingerprinting; d. Disposition of clothing and personal possessions; e. Intake screening (including Notice of Separation); f. Providing institution guidelines governing telephone calls (including procedures for making unmonitored calls to an attorney); g. Provisions for personal hygiene, to include: (1) Issue of personal hygiene items; (2) Issue of clean clothing; and (3) Opportunity for shower and hair care; h. Orientation; i. Opportunity for waiver of right not to work; j. Assignment to an appropriate housing unit.

Two of those items carry protections that people miss. On searches, the Program Statement’s implementing text at p. 8 draws a line the general population rules do not: “Pretrial inmates charged with misdemeanors or committed for civil contempt may not be visually searched unless there is reasonable suspicion they are concealing a weapon or other contraband or they consent, in writing, to a visual search. If these inmates are not visually searched, they must be housed in an area separate from all other inmates in accordance with the Program Statement Receiving and Discharge Manual.” On telephone guidelines, the regulation itself names “procedures for making unmonitored calls to an attorney” as part of what admission must cover — that is a regulatory hook worth citing when unmonitored legal calls are the problem.

The initial assessment is separate from intake screening and is the Bureau’s own instruction, not a regulation. PS 7331.05 at p. 10: “Within the first 48 hours of admission, an initial assessment, separate from the medical and social intake screening, must be completed.” It is conducted on the BP-A0562, Pretrial Inmate Interview form (p. 11), and the policy lists both where the information comes from and what it covers.

The information sources include the defense attorney and the inmate’s family — a fact almost no defense lawyer knows. PS 7331.05 at p. 11 lists the assessment sources as: the BP-A0377 Prisoner Remand form and accompanying booking information, medical/psychological screening, intake screening information, U.S. Probation and Pretrial Services, the arresting agency, the U.S. Attorney’s Office, the U.S. Marshals Service, prior institution reports, the inmate interview, medical reports, the defense attorney, the inmate’s family, and the Bureau’s Inmate Information System.

The assessment information itself, at pp. 11–12: separatee information, prior criminal history, record of violence, escape or attempted escape, current offense/charge, prior institutional adjustment, age, behavior and attitude during intake screening, special needs (psychological, medical, suicide risk), alcohol or drug abuse, detainer or other pending charges, bond information, group affiliations (gangs, cartel, organized crime), identifying marks or tattoos, prior law enforcement, notoriety and high-profile cases in the media, and potential length of sentence.

Housing follows from that assessment, and the decision is held high: “Normally, the decision of a housing assignment for a pretrial inmate is not delegated below the Unit Manager level” (p. 10–11).

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: Defense counsel is on the Bureau’s own list of assessment sources, and almost nobody uses it. Within 48 hours of your client’s arrival, a Unit Manager is making a housing decision using separatee information, suicide-risk indicators, gang affiliation and “notoriety, high profile cases in the media” — and the sources they actually have are a Marshals booking sheet and a fifteen-minute interview with a frightened person. If your client has a cooperator problem, a co-defendant in the same building, a documented psychiatric history, a medication that will affect them in court, or a genuine safety exposure, a short letter to the Unit Manager in the first two days is worth more than any motion you will file about conditions six months later. Send it, keep the copy, and note the date — because the policy directs that “[i]nformation obtained during the initial intake screening and subsequent interviews will be documented, placed into the inmate’s pretrial drop file folders, and used in subsequent reviews” (p. 11). What you send becomes part of the record that drives every later review.

Reviews — the recurring checkpoint

28 C.F.R. § 551.107 is the section to know if the problem is ongoing rather than one-off. Transcribed verbatim:

Staff shall conduct regular reviews of a pretrial inmate’s status.

a. Each pretrial inmate shall be scheduled for an initial review by the unit team within 21 calendar days of the inmate’s first arrival at the institution, and subsequent reviews shall be conducted at least every 90 days.

b. The inmate shall be notified at least 48 hours prior to the inmate’s scheduled review.

c. A pretrial inmate is expected to attend these reviews. If the inmate refuses to appear, staff shall document in the record of the meeting the inmate’s refusal and, if known, the reason for refusal.

d. Inmate reviews are to be documented on the Pretrial Inmate Review Report.

The Bureau’s implementing text adds who attends and what gets covered: “At a minimum, the Unit Manager, Case Manager, and Correctional Counselor will attend pretrial inmate reviews” (p. 14); “The initial and subsequent reviews will assess all factors relating to the inmate’s detention, including the practicability of separation from convicted inmates” (p. 14); and the review is recorded on a BP-A0561, Pretrial Inmate Review Report (p. 14). Convicted-but-unsentenced people are scheduled on the same cycle (pp. 14–15).

That highlighted clause is the most useful sentence in the Program Statement for anyone with a housing complaint. Separation is not decided once at intake and forgotten — the Bureau’s own policy directs that its practicability be reassessed at every review, at least every 90 days, with 48 hours’ notice, in a meeting you are entitled to attend.

What the Constitution adds

A Program Statement is the Bureau’s internal instruction to staff, not a law you can enforce. The Supreme Court said so directly in Reno v. Koray, 515 U.S. 50 (1995), describing a Program Statement as “an internal agency guideline” that is “akin to an ‘interpretive rule’ that ‘do[es] not require notice and comment,'” though “still entitled to some deference” where it is a permissible construction of the statute. The regulation in subpart J is different — that binds the Bureau.

Above both sits the Due Process Clause, and for pretrial detainees it does real work. In Bell v. Wolfish, 441 U.S. 520 (1979), the Court held that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law,” and framed the inquiry: “In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.”

The test that follows is not a high bar for the government. Same case: “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.'” And Wolfish is emphatic about deference: “Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” The Court also rejected the intuition that most families arrive with — that the presumption of innocence should govern conditions — holding that it “has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”

Wolfish has been refined since. In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Court held that for an excessive-force claim “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable,” and explained that Wolfish‘s “focus on ‘punishment’ does not mean that proof of intent (or motive) to punish is required”; rather, “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley also carried Wolfish‘s deference forward, directing courts to account for “the legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained.”

What this means practically: conditions litigation for a pretrial detainee is not easier than for a sentenced person just because no one has been convicted. It is a different framework — punishment rather than cruel and unusual punishment — with the same wide deference to prison administrators built in. Litigation is also not the first move; the administrative route below usually is, and under the Prison Litigation Reform Act it is a prerequisite.

What pretrial detention policy means for you

If you are the person inside: you cannot be made to work

You cannot be made to work. 28 C.F.R. § 551.106 says the Warden “may not require the inmate to work in any assignment other than housekeeping tasks in the inmate’s own cell and in the community living area” unless you sign a waiver. The waiver is the BP-A0203, and the policy says you may “waive, or rescind a waiver, at any time” (p. 9). Think about it before you sign: a work assignment can mean money on your books and time out of the unit, and the Warden may approve performance pay for a pretrial inmate under § 551.108 — but it also puts you into a schedule and a set of expectations you did not have. Details on work assignments generally are on our Work and Performance Pay page.

Do not skip the modified A&O. The policy directs that pretrial inmates “must attend a modified A & O program which includes information on the Bureau’s Sexually Abusive Behavior Prevention and Intervention Program within 30 days of intake,” documented on the BP-A0518, and that you receive “during intake, a copy of the A&O handbook, which includes the Prison Rape Elimination Act (PREA) A & O Brochure and the Inmate’s Rights and Responsibilities” (p. 9). If you did not get the handbook, ask for it in writing. See PREA and Sexual Abuse Prevention and our intake process walkthrough.

Use the legal-access rules, because they are stronger for you than for sentenced people. Attorney visits are supposed to be available seven days a week — that is a regulation, § 551.117(a) — and the Program Statement adds that “Attorney visits for pretrial inmates may be conducted at times other than established visiting hours with the approval of the Warden or designee” (p. 20). Calls to your lawyer are to be allowed “as often as resources of the institution allow” (§ 551.117(c)). And if your unit has no access to the main law library, the policy directs that “[a] basic law library is to be established for pretrial housing units” (p. 20). Background: Inmate Legal Activities and Attorney-Client Communications.

Understand what a disciplinary shot costs you here. You are subject to the same Inmate Discipline Program as everyone else — that is § 551.116(a). But the reporting is worse. The Program Statement directs, at p. 19, that when a pretrial inmate violates any Bureau rule — “not just repeated or serious disruptive behavior” — the U.S. Probation Office preparing your Presentence Investigation Report “must be advised,” and that copies go to the Designation and Sentence Computation Center after sentencing. A shot you pick up in the detention center can end up in the PSR that a judge reads at sentencing. That is a materially different consequence than the same shot would carry for someone already sentenced. See the presentence report.

Medication and court. If you are prescribed anything that could affect how you present in a courtroom, § 551.114(b) directs staff to advise the court through the U.S. Marshal, and the implementing text at pp. 17–18 says “[a] copy of all court notifications will be provided to the U.S. Attorney’s Office and the inmate’s attorney,” with notification responsibilities that “may not be delegated below the department head level.” Tell your lawyer what you are taking. See Patient Care and Treatment and Care of Inmates With Mental Illness.

If you are the family: finding where your person is held

The first thing to understand is where your person is. Pretrial detention usually happens at an administrative-security facility — a Metropolitan Detention Center, Federal Detention Center, or Metropolitan Correctional Center. PS 7331.05 at p. 5: “Normally, pretrial inmates are housed in administrative institutions including Metropolitan Detention Centers (MDCs), Federal Detention Centers (FDCs), and Metropolitan Correctional Centers (MCCs). These institutions may also house convicted inmates awaiting sentencing or movement to designated institutions, or sentenced inmates who require further court appearances.” Other institutions hold pretrial people in dedicated units or in jail units in satellite buildings. Our page on administrative-security prisons explains what those facilities are like, and Jail vs Prison covers the vocabulary.

The second thing: your person is a U.S. Marshals Service prisoner, not a Bureau of Prisons inmate, even though BOP staff run the building. The Program Statement says so at p. 5 — “pretrial inmates are U.S. Marshals Service (USMS) prisoners” held under a Memorandum of Understanding that allocates a fixed number of beds to the Marshals. That has odd downstream consequences; the policy notes at p. 18 that even the release code used when a pretrial inmate dies is different, “as pretrial inmates are U.S. Marshal inmates rather than Bureau inmates.”

The third thing: visiting is thinner and slower, but immediate family is the floor. Section 551.120 routes pretrial visiting through the Bureau’s ordinary visiting rule and local guidelines, and the implementing text at p. 22 sets a minimum: “At a minimum, pretrial inmates will receive approval for visits from immediate family. These persons include mother, father, stepparents, foster parents, brothers and sisters, spouse, and children.” The regulation also allows something people rarely ask for: “Staff may allow a pretrial inmate special visits to protect the inmate’s business interests or to help prepare for trial.” If a business is failing or trial preparation genuinely requires an in-person visit that will not fit in regular hours, ask — in writing, through counsel. See Visiting Regulations and Inmate Visitation.

The fourth thing: when the facility locks down, there is a notification rule that names you. Section 26 of the Program Statement, added in the 2023 edition and reproduced at p. 22, directs that when a significant or disruptive event leads management to restrict legal access or social visiting, “employees must make all reasonable efforts to notify all known parties affected by the disruption. This includes, but is not limited to inmate families, defense counsel, local courts, and the public. For facilities housing pretrial inmates, such notice must also be made to the local Federal Public Defender Office(s), the local United States District Court(s), and the local United States Attorney’s Office(s). This information can be transmitted via telephone, email, or listed on the Institution’s webpage.” If a lockdown has cut off contact and nobody told you anything, that section is what to name. Practical background: How to Contact a Federal Inmate and Lockdowns and Modified Operations.

Finally, the question every family asks: does this time count? Yes — but only after sentencing, and not by anyone at the detention center. See the next section.

If you are counsel: pretrial detainees

The 48-hour intake assessment is an opportunity, and it closes fast. As noted above, the Bureau’s own list of assessment sources includes defense counsel and family (p. 11). A short, factual letter to the Unit Manager in the first two days — separatees, medical, psychiatric, medication that will affect courtroom presentation, safety exposure — goes into the pretrial drop file and drives subsequent reviews. Counsel who waits for a problem to develop has forfeited the one moment when the Bureau is actively soliciting information.

Section 551.107 gives you a recurring, documented forum. Initial review within 21 calendar days, subsequent reviews at least every 90 days, 48 hours’ notice, documented on a BP-A0561 — and the reviews “will assess all factors relating to the inmate’s detention, including the practicability of separation from convicted inmates” (p. 14). If separation, housing, work status or programming is the problem, the review is where it belongs, and the BP-A0561 is a discoverable contemporaneous record of what was raised and what was said.

The Institution Supplement is where the operative local rule actually lives. An Institution Supplement is “[r]equired for Wardens at institutions where 100 or more beds have been allocated to the USMS” (p. 3), and the Program Statement lists at pp. 4 what it must cover, including “[s]pecifying procedures for obtaining legal materials in the institution’s main law library,” “[e]stablishing procedures to ensure psychiatry/psychology employees determine the competency of a pretrial inmate who requests to waive his or her right not to work,” “[e]stablishing procedures to ensure the screening of inmates returning from court,” “[e]stablishing notification procedures when a pretrial inmate is receiving psychiatric medication and/or any other medication which may alter the inmate’s courtroom behavior,” “[e]stablishing procedures for alternate legal access arrangements after a significant or disruptive event exceeds 24 hours,” and “[p]roviding for the exchange of court clothing.” Supplements are not published on bop.gov. Request the one for your client’s facility — through the unit team, and through a Freedom of Information Act or Privacy Act request if staff will not produce it.

Alternate legal access after a lockdown is now a written obligation. The 2023 edition added, at p. 20: “To ensure inmates have access to legal counsel as soon as it is safely possible after a significant or disruptive event at a facility exceeds 24 hours, each facility will develop alternative legal access arrangements. These plans may include, but are not limited to, alternative visiting locations at the facility, expansion of normal visiting hours, and any additional procedures consistent with the mission and security of the facility. Restriction of legal access should occur only when necessary to protect the safety and security of employees, inmates, or the public.” When a facility goes down for a week and your Sixth Amendment access goes with it, that paragraph plus Section 26’s notification duty are the policy hooks. They are agency policy, not law — but they are the agency’s own written standard, and a motion that quotes them is materially stronger than one that does not.

Watch the status flip. The moment BOP receives official notification of conviction, the client stops being a “pretrial inmate,” the admission assignment changes to unsentenced holdover “immediately,” and subpart J stops applying (pp. 7, 13). Everything in the rule set above — the work protection, the separation directive, the seven-day attorney visiting rule — turns off at that moment, even though the client’s practical situation has not changed at all and sentencing may be months away. Clients should be told this before they plead, not after.

Presentence custody: does this time count?

It does, under 18 U.S.C. § 3585(b), which reads in full:

(b) Credit for Prior Custody.— A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

Four things about that provision matter to a person sitting in a detention center right now.

Nobody computes it while you are pretrial. Credit runs against “a term of imprisonment,” and there is no term yet. The sentence itself does not begin until “the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served” (§ 3585(a)).

The judge does not compute it either. In United States v. Wilson, 503 U.S. 329 (1992), the Supreme Court held that “the Attorney General, through BOP, has the responsibility for administering the sentence,” and that “[b]ecause the offender has a right to certain jail-time credit under § 3585(b), and because the district court cannot determine the amount of the credit at sentencing, the Attorney General has no choice but to make the determination as an administrative matter when imprisoning the defendant.” The Court was explicit: “A district court, therefore, cannot apply § 3585(b) at sentencing.” A judge may make a recommendation; the Bureau does the arithmetic afterward.

“Official detention” is narrower than it sounds. In Reno v. Koray, 515 U.S. 50 (1995), the Court held that time at a community treatment center while “released” on bail under the Bail Reform Act “was not ‘official detention’ within the meaning of 18 U.S.C. § 3585(b),” reasoning that “under the language of the Bail Reform Act of 1984, a defendant suffers ‘detention’ only when committed to the custody of the Attorney General; a defendant admitted to bail on restrictive conditions … is ‘released.'” Highly restrictive release conditions — even confinement to a facility — are still release, not detention.

The double-credit bar is real. The closing clause, “that has not been credited against another sentence,” is what excludes time already applied to a state sentence. Wilson describes this as one of the deliberate 1987 changes: “Congress made clear that a defendant could not receive a double credit for his detention time.”

We will not compute your credit and neither should anyone else who has not seen your judgment, your detention order and your Marshals custody records. What we can tell you is the route. The Bureau computes it after sentencing, using the Sentence Computation Manual; if the computation looks wrong, the challenge runs through the administrative-remedy ladder first — Wilson itself noted that “[f]ederal regulations have afforded prisoners administrative review of the computation of their credits” and that judicial review follows “after exhausting their administrative remedies.” Our pages on prior custody credit and challenging a BOP sentence computation walk through both.

One practical note for the family: keep your own dated record of every facility, every transfer and every writ movement from the day of arrest. Prior-custody disputes are almost always disputes about days spent in a county jail on a writ, and the person best placed to reconstruct that timeline is usually a relative with a calendar, not the Bureau.

What changed from PS 7331.04 to 7331.05

PS 7331.05, dated August 1, 2023, rescinded PS 7331.04, Pretrial Inmates (1/31/2003) — a twenty-year-old policy. Its Summary of Changes at p. 3 lists the changes verbatim:

– Struck language regarding excludable non-U.S. citizens. – Added language regarding the Admission/Release Status for inmates waiting to be picked up by Immigration and Customs Enforcement (ICE) officials upon completion of their sentence. – Removed references to specific admission assignments. – Removed option to permit institutions to devise a form, which documents pretrial inmates receiving the Admission & Orientation (A & O) and Inmate Rights and Responsibilities in lieu of using the Bureau of Prisons (Bureau’s) Inmate Information System generated intake screening form. – Added language to identify correct keying for U.S. Marshals Service (USMS) pretrial or holdover inmate death. – Added language clarifying voting rights status for pretrial inmates. – Added language to distinguish between inmates pending sentencing and pending designation and movement. – Added language to address A & O requirements for pretrial inmates under the Prison Rape Elimination Act (PREA). – Added language requiring institutions to develop local procedures for alternate legal access arrangements after a significant or disruptive event exceeds 24 hours. – Added language regarding institution notification requirements when significant or disruptive events results in restrictions to legal access and/or social visiting. – Corrected Institution Supplement list to include establishing procedures to ensure psychiatry/psychology employees review study cases to determine an inmate’s competency to waive right to not work and to ensure the screening of inmates returning from court. – Added an element to the Institution Supplement contents requiring institutions to develop notification procedures when a significant or disruptive event results in restrictions to legal access and/or social visiting. – Added an element to the Institution Supplement contents requiring institutions to develop alternate contact procedures for pretrial inmates and attorneys when a significant or disruptive event results in restrictions to legal access. – Changed the term ‘staff’ to ’employee.’ For purposes of this Program Statement, the term ’employee’ is used in black implementing text and is intended to have the same meaning as the term ‘staff’ used in bold and blue regulatory text.

Four of those matter to a reader rather than to a compliance auditor. The voting-rights clarification (now Section 22) settles a question detention centers used to answer inconsistently. The PREA A&O requirement put a 30-day deadline and a documented checklist behind orientation that previously had neither. And the two lockdown provisions — alternate legal access after 24 hours, and the notification duty to families, defense counsel, courts and the U.S. Attorney — were written in the aftermath of a period in which federal detention facilities went into extended modified operations and lawyers could not reach clients for weeks. Whatever prompted them, they are now the Bureau’s own written standard.

Change Notice CN-1, February 27, 2025, is short and narrow, and its own header states its purpose: “This CN removes language to ensure consistency with Executive Orders issued by the Executive Office of the President of the United States. Additions are marked with a highlight and deleted text is marked with a strikethrough.”

It touches exactly one section and one reference. In Section 11, Pretrial Inmate Reviews, CN-1:

• added the sentence “See Program Statement Sexually Abusive Behavior and Intervention Programs.”;
• deleted the phrase “for transgender and intersex inmates, per Prison Rape Elimination Act (PREA) guidelines”;
• deleted the closing sentence “See the Program Statements Sexually Abusive Behavior Prevention and Intervention Program and Transgender Offender Manual.”; and
• deleted the reference “P5200.08 Transgender Offender Manual (1/13/2022)” from the References list.

After CN-1, the operative text of Section 11’s second paragraph reads: “During each inmate Program Review, the Unit Manager is responsible for reviewing work, programming, and housing unit assignments. See Program Statement Sexually Abusive Behavior and Intervention Programs. Reviews are documented in the pretrial drop file folders on the BP-A0381, Inmate Activity Record.”

Nothing else in the Program Statement changed. Every number, every regulatory quotation and every procedural step above comes from the August 1, 2023 text and remains current.

What has changed around the Program Statement. The References list at pp. 22–23 cites several policies by editions that have since been superseded — P5324.12 Sexually Abusive Behavior Prevention and Intervention Program (6/4/2015), now PS 5333.01; P5270.11 Special Housing Units (11/23/2016), now PS 5270.12; P5800.18 Receiving and Discharge Manual (8/12/2014); P4500.12 Trust Fund/Deposit Fund Manual (3/14/2018), now PS 4500.13; and P5880.08 Inmate Personal Property (8/22/2011), which in current numbering is PS 5580.10. When this policy sends you to a companion by an old number, the substance usually survives in the successor; the pin-cite does not.

Where people get stuck in pretrial detention

Four problems recur. Each has a route, and the route matters more than the complaint.

“He is pretrial but he is housed with sentenced people.” This is the most common complaint and the hardest to win, because “to the extent practicable” is doing enormous work and the Bureau reads it as a function of “the institution’s design, structure, and operation” (p. 5). But it is not unreviewable. Section 551.107 directs that every review assess “the practicability of separation from convicted inmates,” so the right move is not a general grievance about housing — it is a specific, documented request raised at the review, with a stated reason. Reasons that carry weight: a named separatee in the same unit, a co-defendant, a documented safety exposure, a cooperator issue. Start with an Inmate Request to Staff — form BP-A0148, universally called a “cop-out” — to the Unit Manager, since the policy says housing decisions are “normally … not delegated below the Unit Manager level” (pp. 10–11). See Request to Staff and, if the concern is safety specifically, Protective Custody.

“He is being made to work.” This one is stronger than it looks, because it rests on a regulation rather than a Program Statement. Cite 28 C.F.R. § 551.106 by section number in a cop-out, state that no BP-A0203 work waiver has been signed, and ask for the assignment to be removed. If a waiver was signed and you want out, the policy says a waiver may be rescinded “at any time,” using the same form (p. 9). If the person has been under psychiatric evaluation or treatment, there is a competency layer: the policy directs local procedures “to ensure psychiatry/psychology employees determine the competency of a pretrial inmate who requests to waive his or her right not to work,” and provides that someone “not competent to understand the consequences of signing the work waiver” may not be compelled to work (p. 17).

“No recreation, or one hour a week.” Section 551.115(b) sets a floor of one hour daily outside or two hours daily indoors, and § 551.115(e) says those provisions and the equipment provision “must be carried out unless compelling security or safety reasons dictate otherwise” — with the added directive that “[i]nstitution staff shall document these reasons.” That documentation duty is the lever. Ask, in writing, for the documented compelling security or safety reason for the reduction. If the answer is that there is none, you have a regulatory violation rather than a preference dispute. Note the exception: someone in Administrative Detention or Disciplinary Segregation gets exercise under the discipline rules in 28 C.F.R. part 541, subpart B instead — see Special Housing Units.

“I cannot reach my lawyer.” Three separate hooks, and it is worth naming all of them. § 551.117(a) — attorney visits on a seven-days-a-week basis. § 551.117(c) — telephone the attorney “as often as resources of the institution allow.” § 551.103(f) — admission procedures must include “procedures for making unmonitored calls to an attorney.” Add, where a lockdown is the cause, the alternate-legal-access paragraph at p. 20 and the notification duty in Section 26 at p. 22. This is one of the few complaints where counsel writing to the Warden directly is usually faster than the inmate grievance route, because the obligation runs to the attorney relationship, not only to the detainee. See Inmate Legal Activities and Attorney-Client Communications in Federal Prison.

When informal requests fail, the formal ladder is the Administrative Remedy Program: BP-9 to the Warden, BP-10 to the Regional Director, BP-11 to the Office of National Inmate Appeals, under 28 C.F.R. part 542, subpart B. The clock is short — 28 C.F.R. § 542.14(a) sets “20 calendar days following the date on which the basis for the Request occurred,” subject to extension “[w]here the inmate demonstrates a valid reason for delay.” BOP publishes the BP-A0148 cop-out form but not the BP-9, BP-10 or BP-11 forms; the unit team supplies those. See Administrative Remedy Program and Prison Grievances.

Exhaustion matters if court is ever a possibility. Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), no action may be brought about prison conditions until available administrative remedies are exhausted — “exhaustion” meaning completing every level of the internal ladder, on time, before filing. Lost or damaged property is a different track entirely: that goes under the Federal Tort Claims Act, not through a BP-9. And where the underlying problem is medical care, a psychiatric issue, or a designation question after sentencing, the administrative path is necessary but rarely sufficient on its own — see Federal Prison Consulting Services or contact us.

Related BOP policy on pretrial detainees

The court-side companion is Federal Pre-Trial Process, which covers detention hearings, the Bail Reform Act and what happens between arrest and trial; this page covers what the Bureau does with a person the court has ordered detained. For the trial itself, Federal Criminal Trial Process.

Where pretrial people are held: administrative-security prisons for what an MDC, FDC or MCC actually is, Security Designation and Custody Classification (PS 5100.08) for how designation works once a sentence exists, and Inmate Housing for the vocabulary of units and cells.

Policies that apply to pretrial inmates on the same terms as everyone else: Inmate Discipline Program (PS 5270.09), Special Housing Units (PS 5270.12), Visiting Regulations (PS 5267.09), Inmate Telephone Regulations (PS 5264.08), Correspondence (PS 5265.14), Inmate Personal Property, Trust Fund and Commissary, Religious Beliefs and Practices, Recreation Programs, Marriages of Inmates, Grooming, and the Receiving and Discharge Manual, which governs the admission itself.

Health and safety: Patient Care (PS 6031.06), Treatment and Care of Inmates With Mental Illness (PS 5310.16), Forensic and Other Mental Health Evaluations (PS 5070.12) for commitments under 18 U.S.C. §§ 4241–4246, PREA and Sexual Abuse Prevention, and the Female Offender Manual for the feminine-hygiene provision the admission checklist cross-references. CN-1 removed this policy’s cross-reference to the Transgender Offender Manual (PS 5200.08); our page on that manual covers it separately.

After sentencing, when subpart J stops applying: the Sentence Computation Manual (PS 5880.28), prior custody credit, challenging a BOP sentence computation, Good Conduct Time and First Step Act Time Credits — none of which a pretrial inmate is earning. For families new to all of this, What Families Should Know About Federal Prison.

Frequently Asked Questions About Pretrial Inmates

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026