5194, 5238 (2018), For these additional reasons, detailed further below, if the statute is deemed ambiguous, the Department's interpretation of section 12003(b)(2) represents a reasonable exercise of the Attorney General's and the Director's policy discretion that would be entitled to deference. That guidance also instructed that pregnant inmates should be considered for placement in a community program, to include home confinement. 53. Prob. The percentage of inmates placed in home confinement under the CARES Act that have had to be returned to secure custody for any violation of the rules of home confinement is very low; the number of inmates who were returned as a result of new criminal activity is a fraction of that. The bill is a product of multi-year bipartisan negotiations and enjoys support from across the political spectrum.). at *12. The Department recognizes that OLC previously advised, in January 2021, that the Bureau would be required to recall all prisoners placed in home confinement under the CARES Act who were not otherwise eligible for home confinement under 18 U.S.C. documents in the last year. But she feels certain "we could have been releasing so many more people during the pandemic and we . DATES: Comments are due on or before July 21, 2022. [60] Federal Bureau of Prisons Program Statement 7320.01, CN-2, Home Confinement (updated Dec. 15, 2017), 3624(c)(2). [16], The term covered emergency period refers to the period beginning on the date the President declared a national emergency with respect to COVID-19 and ending 30 days after the date on which the national emergency declaration terminates.[17]. see supra The Bureau recently published a final rule codifying Bureau procedures regarding time credits that govern pre-release custody placements under section 3624(g). The Department's interpretation of the statute is also consistent with Congressional support for increasing the use of home confinement as part of reentry programming, as the Second Chance Act of 2007 and the First Step Act of 2018 demonstrate. When Congress passed the CARES Act back in March 2022, it lifted the normal 6 month ceiling on home confinement terms for inmates. O.L.C. 3624(g). An inmate's failure to comply with the conditions of home confinement results in disciplinary action, which may include a return to secure custody or prosecution for escape. Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. 1. Neither the BOP nor the DOJ have publicly released or published that memo, however, leaving criminal defense . This final rule adopts the same calculation method . available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. [40] 101, 132 Stat. CARES Act Management: On Monday, NPR reported that only 17 of the 442 inmates returned to prison from CARES Act home confinement had committed new crimes. Providing the Bureau with discretion to determine whether any inmate placed in home confinement under the CARES Act should return to secure custody will increase the Bureau's ability to respond to outside circumstances and manage its resources in an efficient manner that considers both public safety and the needs of individual inmates. www.regulations.gov. On April 3, 2020, the Attorney General issued a second memorandum for the Director, finding that emergency conditions were materially affecting the functioning of the Bureau, and acknowledging that the Bureau was experiencing significant levels of infection at several of our facilities.[18] codifed at available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. any impact on victims or witnesses, possible deterrence effects in the community, or other aspects of the agency's mission. 2. See Start Printed Page 36793 CARES Act sec. v. Individuals placed in home confinement under the CARES Act, like other inmates in home confinement, remain in the custody of the Bureau. It uses the term covered emergency period twice, at the beginning and the end of the section. 115-699, at 22-24 (The federal prison system needs to be reformed through the implementation of corrections policy reforms designed to enhance public safety by improving the effectiveness and efficiency of the federal prison system in order to control corrections spending, manage the prison population, and reduce recidivism.). This is because on January 15, 2021, just five days before President Trump left office, the Justice Department's Office of Legal Counsel issued a memo declaring that people transferred to home confinement under the CARES Act would be sent back to prison once the national COVID emergency ended. See, e.g., id. It is further supported by evidence demonstrating that the Bureau can appropriately manage public safety concerns related to inmates in home confinement, and by the penological, rehabilitative, public health, public safety, and societal benefits of allowing inmates to effectively prepare for successful reentry after the conclusion of their criminal sentences. 3624(c)(2). The Rule is open for public comment until July 21, 2022. and services, go to You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. This feature is not available for this document. 5 U.S.C. Recently, Congress passed a government funding bill, entitled the Consolidated Appropriations Act of 2022 (2022 CAA). (last visited Apr. Use the PDF linked in the document sidebar for the official electronic format. The Attorney General directed that the determination of whether to place an inmate in home confinement should be made on an individualized basis, taking into account the totality of the inmate's circumstances, the statutory requirements, and the following non-exhaustive discretionary factors: The inmate's risk score under the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN);[11], The inmate's crime of conviction and the danger the inmate would pose to the community. In response to COVID-19, the BOP instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention . Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 11599 (Feb. 26, 2021); Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (Feb. 23, 2022). Memorandum for the BOP Director from the Attorney General, Although COVID-19 vaccines are widely available and effective at preventing infection, serious illness, and death, not all incarcerated persons will elect to receive COVID-19 vaccinations,[65] 7. BOP RE: Home Confinement Under Cares Act Newsletter 12/17/22 Here we wanted to take the time to discuss Home Confinement and why Courts lack the authority and jurisdiction to hear an appeal of the BOP denying your request for home confinement, even if it is under the CARES Act of 2020 (P. L. 116-136, Mar. Following the issuance of a final rule, the Bureau will develop, in consultation with the Department, guidance to explain criteria that it will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody. [23] 47. establishing the XML-based Federal Register as an ACFR-sanctioned It further explained that inmates who engaged in violent or gang-related activity while in prison, those who incurred a violation within the past year, or those with a PATTERN score above the minimum range would not receive priority consideration under the memorandum. 39. 467 U.S. at 843. 115-699, at 22-24 (2018) (The federal prison system needs to be reformed through the implementation of corrections policy reforms designed to enhance public safety by improving the effectiveness and efficiency of the federal prison system in order to control corrections spending, manage the prison population, and reduce recidivism.); H.R. 3621(a), (b). As explained below, in the Bureau's expert assessment, whether an inmate should remain in home confinement is a decision best made upon careful consideration of the appropriate management of Bureau institutions, penological, rehabilitative, public health, and public safety goals, and the totality of the circumstances of individual offenders. More contagious variants of the virus that causes COVID-19 could exacerbate the spread, and it is unknown whether currently available vaccines will be effective against new variants that may arise. the Department's assessment, public safety considerations do not undercut the benefits associated with allowing inmates placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period. 3624(c)(2).[15]. 18, 2020); 1593Second Chance Act of 2007, Congress.gov, 48. Rodriguez Rather than being kept behind bars, people spend the time confined in their . Section 12003(b)(2) of the CARES Act authorizes the Director to place inmates in home confinement, notwithstanding the time limits set forth in 18 U.S.C. mum amount of time" for home confinement during the emergency and that the consequences of those decisions might cont inue, even though the authority to make the decision in the first instance has lapsed. 03/03/2023, 207 If you want to inspect the agency's public docket file in person by appointment, please see the 26, 2020), Accordingly, it is appropriate for the Department to consider whether the reintroduction into prison populations of individuals placed in home confinement, in part, upon consideration of their vulnerability to COVID-19[67] Rep. No. [2] following the end of the covered emergency period. 18 U.S.C. 35. As noted above, Courts have recognized the Bureau's authority to administer inmates' sentences,[54] Because the affected inmates are currently serving their sentences in home confinement, there will be no new costs associated with this proposed rulemaking. 31. (Apr. Although the Bureau has not yet published the average cost of incarceration fees (COIF) for Fiscal Year (FY) 2021, in FY 2020 the average COIF for a Federal inmate in a Federal facility was $120.59 per day. Document Drafting Handbook Section 12003(b)(2) ends with the phrase as the Director determines appropriate, which explicitly delegates authority to the Director to determine the appropriate amount to lengthen a period of home confinement. 4001(b)(1). 23. 24. Although placements under the CARES Act were not made for reentry purposes, the best use of Bureau resources and the best outcome for affected offenders is to allow the agency to make individualized assessments of CARES Act placements with a focus on inmates' eventual reentry into the community. at *7-9. CARES Act sec. See at 5210-13, See id. et al., Is Downsizing Prisons Dangerous? U.S. Centers for Disease Control and Prevention, Basics of COVID-19 (updated Nov. 4, 2021), See id. CDC, For People Living in Prisons and Jails (updated Feb. 15, 2022), available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home These markup elements allow the user to see how the document follows the As an initial matter, the extended home confinement program is time-limited: the Director's authority to place inmates on extended home confinement lapses after the expiration of the covered emergency period. on NARA's archives.gov. Such individualized assessments are consistent with direction the Bureau has received from Congress in other contexts. Even if the relevant provision of the CARES Act were considered ambiguous, however, the Department's interpretation represents a reasonable reading that would warrant deference under Indeed, there is evidence that the Bureau can appropriately manage public safety concerns related to inmates in home confinement, and there are penological, rehabilitative, and societal benefits of allowing inmates to effectively prepare for life after the conclusion of their criminal sentences. By Tena-Lesly Reid. Last week, Families Against Mandatory Minimums ("FAMM") issued a statement praising a memo issued by DOJ that expanded the number of inmates who are eligible for release to home confinement under the CARES Act. The Sentencing Project's Executive Director Amy Fettig submitted comments to the Office of the Attorney General on behalf of The Sentencing project regarding the United States Department of Justice's proposed rule on CARES Act Home Confinement. 18 U.S.C. For complete information about, and access to, our official publications Before the pandemic, the Bureau of Prisons had the authority to transfer inmates to home confinement for just the final six months of their sentences. [14] 3624(c)(2) after the expiration of the covered emergency period (or if the Attorney General were to revoke his findings). 42. They are not permitted to leave their residences except for work or other preapproved activities such as counseling. It ranks as one of the most successful programs implemented by the BOP. Congress vested the Attorney General with broad control over the control and management of Federal penal and correctional institutions and the ability to promulgate rules for the government thereof.[42] Allowing certain inmates who were placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period will also afford a number of operational benefits. The new memorandum provides updated guidance and supersedes the memorandum dated November 16, 2020.. Inmates placed in home confinement are considered in the custody of the Bureau and are subject to ongoing supervision, including monitoring, drug and alcohol testing, and check-in requirements. 20. [31] (last visited Apr. This criterion was later updated to include low and minimum PATTERN scores. 509, 510, 515-519. See This PDF is A group of human rights lawyers wants the United Nations to examine why Black people spend an unusually long time in solitary confinement.. 4001 and 28 U.S.C. at 1 (Apr. Under typical circumstances, inmates who have made the transition to home confinement would not be returned to a secure facility absent a disciplinary reason, because the purpose of home confinement is to allow inmates to readjust to life in the community. Medication that you are currently on (eg. It was previously unclear whether inmates would have to return to prison when the pandemic ends. In what appears to be one of the most successful re-entry programs in federal prison history , of the 11,000+ low-risk federal inmates transferred to home confinement under this new provision, only 17 committed a . These efforts were undertaken over years of bipartisan negotiations and garnered broad support across the political spectrum, beginning with the Second Chance Act of 2007 and Register (ACFR) issues a regulation granting it official legal status. documents in the last year, 26 COVID-19 pandemic presents unique challenges for correctional facilities, such as those the Bureau manages. 14. Jan. 13, 2022. And third, it reasoned that the authority to place a prisoner in home confinement required the exercise of ongoing legal authority due to the Bureau's frequent interactions with inmates in home confinement, and that authority would not exist after the expiration of the covered emergency period. The Bureau of Prisons (Bureau or BOP) modifies regulations on Good Conduct Time (GCT) credit to conform with legislative changes under the First Step Act (FSA). L. 115-391, sec. 101(a), 132 Stat. average of $55 per dayless than half of the cost of an inmate in secure custody in FY 2020. Chevron Only official editions of the Moreover, the 30-day grace period also applies to section 12003(c), which provides for free video and teleconferencing for inmates during the covered emergency period. on Darren Gowen, shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed . Start Printed Page 36791 Comments are due on or before July 21, 2022. documents in the last year, 955 Federal Register issue. The virus spreads when an infected person breathes out droplets and particles, and another person breathes in air that contains these droplets and particles, or they land on another person's eyes, nose, or mouth. Start Printed Page 36794 12003(b)(2). Crista Colvin, Office of General Counsel, Bureau of Prisons, phone (202) 353-4885. In response . 29, 2022). . Federal Bureau of Prisons Program Statement 7320.01, CN-2, Home Confinement (updated Dec. 15, 2017), Prisoners sent to home confinement because of the pandemic might remain free. ( . Essentially, the CARES Act allows select eligible inmates to be placed in home confinement during the federal COVID-19 state of emergency. COVID-19 is caused by an extremely contagious virus known as SARS-CoV-2 that has spread quickly around the world. 18 U.S.C. 3624(c)(2). Items To Bring For Your Stay. FSA sec. 115-699, at 2224; SCA sec. 1315 (2021); As the extremely low percentage of inmates placed on CARES Act home confinement returned to secure custody shows, the Bureau can effectively manage public safety concerns associated with the low-risk inmates placed in home confinement under the CARES Act for longer periods of time. By implementing the CARES Act, Treasury is taking . sec. Federal Register. 03/03/2023, 160 The Final Rule becomes the law that the BOP will follow. Congress has explicitly provided the Bureau responsibility for maintaining custody of Federal inmates[52] 64. 18 U.S.C. available at https://www.justice.gov/olc/file/1457926/download For these reasons, it is important that consistent with the law and taking into account public safety and health concerns, that the most vulnerable inmates are released or transferred to home confinement, if possible.). 301; 18 U.S.C. www.regulations.gov. step oneit must defer to the agency's interpretation as long as it is based on a permissible construction of the statute under 68. 23-44 (2020), This interpretation is supported by the text, structure, and purpose of the CARES Act and therefore is the better reading of the statute, as more fully explained in OLC's December 21, 2021 opinion. At this moment, thousands of people safely completing their sentences at home are living in fear that they'll be sent back to federal prison through no fault of their own. Second, OLC did not interpret the 30-day grace period following the end of the national emergency as necessarily suggesting that Congress intended the Bureau to use that time to return CARES Act inmates to secure custody. 12003(b)(2), 134 Stat. Ned Lamont said. 28, 2022). 5194, 5196-97 (2018). What is home confinement? by the Foreign Assets Control Office These inmates might lose the opportunity to participate in potentially beneficial programming and treatment offered only in BOP facilities, which they might have otherwise taken advantage of if placed in secure custody. 3624(g). In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. See, e.g., Released prisoners cite family support as the most important factor in helping them stay out of prison. . Traditionally, the Federal Bureau of Prisons allowed inmates to be placed in home confinement . On any given day, there are anywhere from 500,000 to 550,000 people the nation's jail systemsroughly half of whom would qualify for a Cares Act type home confinement. The vast majority of inmates on CARES Act home confinement have complied with the terms of the program and have been successfully serving their sentences in the community. 12003(a)(2). 467 U.S. 837 (1984).[29]. Re: Home Confinement . (Mar. 101, 132 Stat. H.R. 658-60 (According to the Bureau of Prisons, there is evidence to suggest that inmates who are connected to their children and families are more likely to avoid negative incidents and have reduced sentences. As of January 10, 2022, 4,902 inmates had been placed in home confinement under the CARES Act; 2,826 of those inmates had release dates in more than 12 months. That section, 12003(c)(1), provides that: During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau shall promulgate rules regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates, during the covered emergency period.[33]. .). In other words, it seems that not one single violent crime has been committed by more than 37,000 persons released early to home confinement under the CARES Act authority. (last visited Apr. Second, it reasoned that Congress must have defined the covered emergency period to extend 30 days beyond the end of the declared national emergency in order to provide the Bureau with time to return prisoners to secure custody. See et al., (GC 2022-D015) . [45] 13, 2020). 3624(c)(2), during and for 30 days after the termination of the national emergency declaration concerning COVID-19, provided that the Attorney General has made a finding that emergency conditions are materially affecting BOP's functioning. S. 756First Step Act of 2018, Congress.gov, Memorandum for the Director, Bureau of Prisons from the Attorney General, Even after OLC issued this initial opinion, the Bureau's view remained that the stronger interpretation of the CARES Act did not require all prisoners in CARES Act home confinement to be returned to secure facilities at the end of the covered emergency period.[36]. Finally, as a practical matter, this interpretation permits the Bureau to consider whether returning CARES Act inmates to secure custody would increase crowding in BOP facilities and risk new, potentially serious COVID-19 outbreaks in prisons even after the broader national emergency has passed. . It was signed into law in March 2020. Chevron . [58] to encourage the development and support of, and to expand the availability of, evidence-based programs that enhance public safety and reduce recidivism, such as substance abuse treatment, alternatives to incarceration, and comprehensive reentry services . As explained above, the proposed rule will also have operational, penological, and health benefits. The term escape with prosecution indicates that a United States Attorney's Office has decided to prosecute an inmate for escape under 18 U.S.C. 1501 As explained in a recent opinion of the Office of Legal Counsel (OLC), and supported by the interpretation of the Bureau, the statute allows such individuals to remain in home confinement after the covered emergency period ends, as the Director deems appropriate. The final rule should be published any day but the draft rule called for the end of CARES Act home confinement 30 days after the end of the emergency. As DOJ notes, the CARES Act is silent "as to whether the Director has discretion to determine whether specific individuals placed in home confinement under the CARES Act may remain there" after the COVID-19 emergency ends. Inmates in home confinement must submit to drug and alcohol testing, and counseling requirements. Indeed, of the nearly 5,000 inmates placed in home confinement under the CARES Act, as of January 8, 2022, only 322 had been returned to secure custody for any reason, and only eight for committing a new crime. . A Proposed Rule by the Justice Department on 06/21/2022. After the placement is made, the Bureau's ongoing management of the inmate is further authorized by other Federal statutes. 29, 2022). It quickly became one of the worst hit federal prisons in the country with a massive COVID-19 outbreak. [47] Older adults and individuals with underlying medical conditions are at increased risk of severe illness or death. According to the Bureau, 4,902 of these inmates were placed in home confinement pursuant to the CARES Act. at 516. 3(b), 122 Stat. 3624(g)(4) (In determining appropriate conditions for prisoners placed in prerelease custody pursuant to this subsection, the Director of the Bureau of Prisons shall, to the extent practicable, provide that increasingly less restrictive conditions shall be imposed on prisoners who demonstrate continued compliance with the conditions of such prerelease custody, so as to most effectively prepare such prisoners for reentry.).