26, 2020), individualized determinations about the conditions of confinement for inmates placed in home confinement under the CARES Act, as it does with respect to all prisoners,[27] 3624(c)(2).[15]. 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. (last visited Apr. 12003(c)(1), 134 Stat. et al., has no substantive legal effect. 45. prisoner may be placed in home confinement. .). CARES Act. include documents scheduled for later issues, at the request provide legal notice to the public or judicial notice to the courts. 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. #KeepThemHome. Essentially, the CARES Act allows select eligible inmates to be placed in home confinement during the federal COVID-19 state of emergency. 17. This PDF is available at https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf. by the Foreign Assets Control Office . Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. Use the PDF linked in the document sidebar for the official electronic format. Finally, the Bureau needs flexibility to consider whether continued home confinement for CARES Act inmates is in the interest of the public health, and whether reintroduction of CARES Act inmates into secure facilities would create the risk of new outbreaks of COVID-19 among the prison populationeven after the conclusion of the broader pandemic emergency. . 3624(c)(2) authorizes the Director to transfer inmates to home confinement for the shorter of either 10 percent of the term of imprisonment or six months. Individuals placed in home confinement under the CARES Act, like other inmates in home confinement, remain in the custody of the Bureau. In a Memorandum for Chief Executive Officers dated April 13, 2021, BOP issued a new policy for expanding and reviewing at-risk inmates for placement on home confinement in accordance with the CARES Act and guidance from the Attorney General. 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.). 35. The updated memo is here, and also included below in additional resources. on While every effort has been made to ensure that For example, Congress has made clear that the Bureau must base its determination of an inmate's place of imprisonment on an individualized assessment that takes into account factors including the inmate's history and characteristics. 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. The majority of those inmates have since completed their sentences; as of January 10, 2022, there were 7,726 inmates in home confinement. 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. It is in the best operational interests of the Bureau and the institutions it manages. 12003(a)(2). 3(b), 122 Stat. 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. 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. One avenue, enacted in response to the COVID-19 pandemic, is the Coronavirus Aid, Relief, and Economic Security Act or "CARES Act" of March 2020. 12003(b)(2), 134 Stat. 54. (GC 2022-D066) 62 This information is not part of the official Federal Register document. These indications of congressional intent further bolster the Department's view that any ambiguity in the CARES Act should be read to provide the Director with discretion to allow inmates placed in home confinement who have been successfully serving their sentences in the community to remain there, rather than return such inmates to secure custody 251(a), 122 Stat. CARES Act inmates who remain in home confinement after the covered emergency period would continue to be subject to these requirements until the end of their sentences, and possibly into a term of supervised release. 3624(g). . (2) After the expiration of the covered emergency period as defined by the CARES Act, permitting any prisoner placed in home confinement under the CARES Act who is not yet otherwise eligible for home confinement under separate statutory authority to remain in home confinement under the CARES Act for the remainder of her sentence, as the Director determines appropriate. documents in the last year, 1476 18 U.S.C. 69. (directing the Bureau to consider, among other discretionary factors, the age and vulnerability of [an] inmate to COVID-19 when assessing which inmates should be placed in home confinement). [10] In response . Among other items, the 2022 CAA provides a temporary extension to the CARES Act telehealth relief, which expired on December 31, 2021. 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. v. 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). documents in the last year, 1411 Of this number, only 8 were returned for new criminal conduct (6 for drug-related conduct, 1 for smuggling non-citizens, and 1 for escape with prosecution). see also Author, Youtuber, Paralegal, Hacker, Defcon Speaker, and Coffee Addict at *12. Abigail I. Leibowitz Related to: COVID-19, Incarceration, Sentencing Reform, Federal Advocacy. It was created pursuant to the First Step Act of 2018. See O.L.C. FSA sec. The Bureau recently published a final rule codifying Bureau procedures regarding time credits that govern pre-release custody placements under section 3624(g). 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. Such legislative efforts have been part of Congress's broader push to manage prison populations, facilitate inmates' successful reentry into communities, and reduce recidivism risk. Once the Director has lengthened a prisoner's amount of time in home confinement under the CARES Act and placed the prisoner in home confinement, no further action under the CARES Act is needed. Medication that you are currently on (eg. Finally, OLC concluded that the appropriate action to focus on in determining the meaning of section 12003(b)(2) is the authority to lengthen the maximum period of home confinement, which is a discrete act. 602, 132 Stat. 101, 132 Stat. 29, 2022). 751. 18 U.S.C. . following the end of the covered emergency period. See Home-Confinement, 16. without making an individualized assessment or identifying a penological, rehabilitative, public health, or public safety basis for the action. In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. [24] 26, 2022). Please submit electronic comments through the The Bureau has realized significant cost savings by placing eligible inmates in home confinement under the CARES Act relative to housing those inmates in secure facilities, and it expects those cost savings to continue for inmates who remain in home confinement under the CARES Act following the end of the covered emergency period. codified in relevant part at The new law sets criteria for the amount of time and the circumstances under which inmates at state prisons and jails can spend in isolation. documents in the last year, 20 __(Dec. 21, 2021), April 07, 2022. Based on BOP's success and emerging evidence about the public safety benefits of electronic monitoring, lawmakers should begin expanding, testing, and evaluating home confinement as a way to help end mass incarceration in the U.S. To help limit the spread of COVID-19, the CARES Act authorized BOP to allow some prisoners to serve their . This rulemaking reflects the interpretation of the CARES Act set forth in OLC's December 21, 2021 opinion, is consistent with recent legislation from Congress supporting expanded use of home confinement, and advances the best interests of inmates and the Bureau from penological, rehabilitative, public health, and public safety perspectives. CARES Act sec. __. Letter for Attorney General Barr & Director Carvajal from Senator Richard J. Durbin Federal Bureau of Prisons, Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic, The new memorandum provides updated guidance and supersedes the memorandum dated November 16 . A new law setting limitations on isolated confinement for incarcerated individuals will take effect in Connecticut on July 1, Gov. 29, 2022); Nat'l Academies of Sciences, Engineering, and Medicine, See codified at New law seeks to create path around state's constitutional health care provision adopted in 2012. 102, 132 Stat. __, at *11-12. 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. Finally, this interpretation permits the Bureau to take into account whether returning CARES Act inmates to secure custody, thereby increasing populations in BOP facilities, risks new, potentially serious COVID-19 outbreaks in prisons even after the broader national emergency has passed. . See About the Federal Register People are only pulled back into facilities from home confinement if they have violated the rules of the program. The second memorandum made clear that although the Bureau should maximize the use of home confinement, particularly at affected institutions, the Bureau must continue to make an individualized determination whether home confinement is appropriate for each For all of these reasons, and for the additional reasons the operative OLC opinion explains in more detail, the Department believes that the best reading of the CARES Act is that an inmate whose period of home confinement the Director properly lengthened during the covered emergency period may remain in home confinement, at the Director's discretion, including after the covered emergency period ends. 26. 38. It was previously unclear whether inmates would have to return to prison when the pandemic ends. 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. 5194, 5196-97 (2018). Many of these individualsall of whom have been successfully serving their sentences in the communitymay have release dates more than six months after the expiration of the covered emergency period when it expires, and therefore may not then be eligible for placement in home confinement under 18 U.S.C. 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. Therefore, under Executive Order 13132, the Attorney General determines that this proposed regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This view is reinforced by the structure of the CARES Act, and particularly by a comparison of section 12003(b)(2) with the section of the CARES Act that immediately follows it. at sec. Wyoming legislators approved two bills related to abortion this week, including a ban on . You can also include a description of the CARES Act home confinement circumstances, and why these circumstances may present an "extraordinary and compelling" reason to reduce your sentence. See id. [1] edition of the Federal Register. This criterion was later updated to include low and minimum PATTERN scores. rendition of the daily Federal Register on FederalRegister.gov does not Document Drafting Handbook documents in the last year, 36 Once the Bureau has appropriately lengthened an inmate's maximum period of home confinement under the CARES Act, sections 3624(c)(2), 3621(a), and 3621(b) provide the Bureau with ongoing authority to manage that placement. [57] [41] [34] First, the FSA demonstrated Congress's interest in increasing the amount of time low-risk offenders spend in home confinement, while continuing to leave decisions about individual prisoners to the Bureau's discretion, by providing that [t]he Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under [18 U.S.C. See, e.g., United States Office of the Attorney General, Department of Justice. 3624(g). 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] See, e.g., [28] 5194, 5238 (2018), The bill is a product of multi-year bipartisan negotiations and enjoys support from across the political spectrum.). CDC, Considerations for Modifying COVID-19 Prevention Measures in Correctional and Detention Facilities (June 22, 2021), 28, 2022). This proposed rule has been drafted and reviewed in accordance with section 1(b) of Executive Order 12866 (Regulatory Planning and Review) and section 1(b) of Executive Order 13563 (Improving Regulation and Regulatory Review). ). 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]. offers a preview of documents scheduled to appear in the next day's Open for Comment, Russian Harmful Foreign Activities Sanctions, Economic Sanctions & Foreign Assets Control, Fisheries of the Northeastern United States, National Oceanic and Atmospheric Administration, Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, 1. On March 13, 2020, the President of the United States declared that a national emergency existed with respect to the outbreak of COVID-19, beginning on March 1, 2020. Comments are due on or before July 21, 2022. [14] At the time of this previous opinion, the Bureau was of the view that the consequences of its proper exercise of discretion to lengthen the maximum period of home confinement during the covered emergency period could continue after the expiration of the COVID-19 emergency. In terms of law, home confinement is a standard practice in federal prisons that predates the COVID-19 pandemic. Start Printed Page 36791 developer tools pages. 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. __, at *2, *5-7. 6. I've talked to several people about my experiences on home confinement, I . 1315 (2021); Register, and does not replace the official print version or the official 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. Chris' books include Directory of Federal Prisons (Middle Street Publishing . The benefits include lower rates of new offense, reduced trauma and racial inequities, and better opportunities for behavior changes. See id. This proposed rule affirms that the Director has the authority to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period. Previous research has similarly shown that inmates can maintain accountability in home confinement programs. For complete information about, and access to, our official publications available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. One of the vital tools in operating a correctional system is the ability to effectively manage bedspace based on the needs of the offender, security requirements, and agency resources. sec. On March 26, 2020, the Attorney General issued a memorandum instructing the Director to prioritize use of home confinement, where authorized, to protect the health and safety of inmates and Bureau staff by minimizing the risk of COVID-19 spread in Bureau facilities, while continuing to keep communities safe. at 516. It has no effect on any other inmate, including those placed in home confinement under separate statutory authorities. 45 Op. The first use establishes that the authority of the Bureau of Prisons to promulgate rules about video and telephonic visitations exists during the covered emergency period. In comparison, section 12003(b)(2) uses the term covered emergency period at the beginning of the section only, referring to the time period during which the Director may lengthen a term of home confinement. available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. [FR Doc. 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. [64] 26, 2022). [59] And it is in the best penological interests of affected inmates. But the current opinion also explains the rationale underlying its See available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home By Katie Benner. As of end of August of 2022, more than 11,000 federal (at risk) inmates were released to home confinement through the CARES Act, only 17 of them committed new crimes while 442 were returned to prison for violating their home confinement conditions. 110-140, at 1-5 (2007) (The Second Chance Act will strengthen overall efforts to reduce recidivism, increase public safety, and help States and communities to better address the growing population of ex-offenders returning to their communities. 25. COVID-19 is caused by an extremely contagious virus known as SARS-CoV-2 that has spread quickly around the world. and discretion to designate the place of those inmates' imprisonment. 2022-13217 Filed 6-17-22; 8:45 am], updated on 4:15 PM on Friday, March 3, 2023, updated on 8:45 AM on Friday, March 3, 2023. . available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html Congress demonstrated support for this type of logical progression toward reentry in the First Step Act. An inmate would usually be moved over the course of a sentence to progressively less secure conditions of confinementoften from a secure prison, to a residential reentry center, to home confinementto provide transition back into the community with support, resources, and supervision from the agency. 4001 and 28 U.S.C. See, e.g., Jan. 13, 2022. DATES: Comments are due on or before July 21, 2022. FSA Time Credits, 87 FR 2705 (Jan. 19, 2022). 503 U.S. 329, 335 (1992); available at https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVID-19%20and%20FSA%20provisions%20-%20final%20bipartisan%20text%20with%20signature%20blocks.pdf Federal Register. Overview of the Federal Home Confinement Program 1988-1996, This final rule adopts the same calculation method . 8. (last visited Apr. publication in the future. increased crowding in prisons, which makes social distancing difficult, is associated with increased incidence of COVID-19. 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. SCA sec. This determination was based on a culmination . L. 115-391, sec. Such cost savings were among the intended benefits of the First Step Act.[56]. U.S. Centers for Disease Control and Prevention, Basics of COVID-19 (updated Nov. 4, 2021), When an inmate is placed in home confinement, he or she is not considered released from the custody of the Bureau of Prisons; rather, he or she continues serving a sentence imposed by a Federal court and administered by the Bureau of Prisons. https://www.bop.gov/inmates/fsa/pattern.jsp. [19] Individuals in close contact with an infected persongenerally less than 6 feet apartare most likely to get infected. CARES Act sec. 5 U.S.C. 68. Thus, in the Department's view, the aspects of a criminal sentence that preserve public safety can be managed in this context while also allowing individuals to more effectively prepare for life when their criminal sentences conclude. See id. Thus, in By April 2021, the Bureau clarified that the criminal history check covered both an inmate's crime of conviction and her broader criminal history. 101, 132 Stat. 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. In its recent opinion, OLC concluded that section 12003(b)(2) does not require the Bureau to return to secure custody inmates on CARES Act home confinement following the end of the covered emergency period. [63] 1109, 134 Stat. 55. For all the reasons set forth above, the Department proposes to promulgate this rulemaking under the Attorney General's authority, at *7-9. The Department expects these numbers will continue to fluctuate as inmates continue to serve their sentences and the Bureau continues to conduct individualized assessments to make home confinement placements under the CARES Act for the duration of the covered emergency period. documents in the last year, 470 et al., COVID-19 vaccination in the Federal Bureau of Prisons, December 2020-April 2021, 45 Op. et seq. Supervision staff monitor inmates' compliance with the conditions of home confinement by electronic monitoring equipment or, in a few cases for medical or religious accommodations, frequent telephone and in-person contact. According to the BOP, as of March 4, 2022, a small percentage of inmates placed in home confinement under the CARES Act, around 3.7%, returned because of violations of the rules to supervision and . 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] . 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. Federal Bureau of Prisons Program Statement 7320.01, CN-2, Home Confinement (updated Dec. 15, 2017), See, e.g., 9. These costs are all mitigated, however, by retaining the Director's discretion to determine whether any inmate should be returned to secure custody based on an individualized assessment. (GC 2022-D015) . O.L.C. The goal of this expanded authority was obvious: prevent the spread of COVID-19 in prisons. 101(a), 132 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.). The Effect of California's Realignment Act on Public Safety, O.L.C. 5 U.S.C. documents in the last year, 987 18 U.S.C. available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html 3621(b) (providing that [t]he Bureau of Prisons shall designate the place of the prisoner's imprisonment, taking into account factors such as facility resources; the offense committed; the inmate's history and characteristics; recommendations of the sentencing court; and any pertinent policy of the United States Sentencing Commission). 29, 2022). The new memorandum provides updated guidance and supersedes the memorandum dated November 16, 2020.. The Bureau's ability to control populations in BOP-operated institutions as well as, where appropriate, in the community, allows the Bureau flexibility to respond to circumstances as varied as increased prosecutions or responses to local or national emergencies or natural disasters. April 3 Memo at 1. The Public Inspection page may also Rep. No. 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. at *2, *15. The bill focuses on development and support of programs that provide alternatives to incarceration, expand the availability of substance abuse treatment, strengthen families, and expand comprehensive re-entry services. [3] These challenges include a high risk of rapid transmission due to congregate living settings, and a high risk of severe disease due to the high prevalence of pre-existing conditions and risk factors associated with severe COVID-19 illness in prison populations. And the widespread return of prisoners to secure custody without a disciplinary reason would be unprecedented. Rep. No. The second use refers to the requirement that the Bureau provide such services, free of charge, and suggests that these services were required to be provided only during the covered emergency period. Although the Department believes its understanding of CARES Act section 12003(b)(2) is the best reading of the statute for the reasons explained above, were a court to disagree and find the statute unclear, the Department's interpretation would be reasonable for those same reasons and the additional reasons explained below. [22] 18 U.S.C. See Policy 315 (2016). Washington, DC (Aug. 19, 2021) - FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLC) launched the "CARES Act Home Confinement Clearinghouse" today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.