by Casey J. Bastian
Imagine having a chance to get out of prison early, doing the right thing with the opportunity and working towards your ultimate freedom, only to have it taken back. That was the situation faced by several thousand people released to home confinement by the federal Bureau of Prisons (BOP) in response to the COVID-19 pandemic, before the course was reversed by the Office of Legal Counsel (OLC) at the Justice Department, BOP’s parent agency, on December 21, 2021.
Back in March 2020, when Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), it recognized prisoners were a highly vulnerable population. So the law increased the term of home confinement available to those held by BOP under 18 U.S.C. § 3624(c)(2).
That law also limits the duration of home confinement “to the lesser of ten percent of a prisoner’s sentence or six months,” a term the CARES Act expanded—but only until “the covered emergency period” ends.
On April 3, 2020, three weeks after the pandemic was declared a national emergency, then-Attorney General William P. Barr determined that “emergency conditions were materially affecting the functioning of [the] BOP.” So Barr ordered new BOP Director Michael Carvajal to begin exercising discretionary authority granted by the CARES Act.
By December 6, 2021, a total of 35,277 BOP prisoners had gone on home confinement. At least 4,879 of those were on extended home confinement thanks to the CARES Act. So what would happen to those prisoners when the pandemic ended—must they return to prison?
BOP’s answer was “yes”: It would rescind home confinement for such prisoners, regardless of other considerations. In fact, according to the original interpretation of the CARES Act by Barr’s OLC in January 2021, at least 2,830 of these prisoners would be returned to prison if the emergency ended.
After President Joseph R. Biden, Jr. (D) took office, however, BOP issued further guidance in a memorandum dated April 13, 2021, expanding discretionary authority to grant home confinement to those prisoners who have “completed at least twenty-five percent of their sentences and have less than eighteen months left, or who have completed fifty percent of their sentences.” BOP would also evaluate prisoners with specific COVID-19 risk factors, who did not otherwise meet those criteria, on a case-by-case basis.
On December 21, 2021, OLC issued a memorandum opinion for current Attorney General Merrick Garland which clarified its new position on the issue, one diametrically opposed to its earlier holding. After discussing the reasons for that previous legal position, the memo shifted to an interpretation that it said is more in line with the goals of home confinement as originally intended, noting that BOP’s “preexisting authorities are better read to give the [BOP] discretion to permit prisoners in extended home confinement to remain there.”
Those “preexisting authorities” include two laws passed during previous Republican administrations. One, the Second Chance Act of 2007, passed under former Pres. George W. Bush (R), created a pilot program for home confinement that does not incorporate the limits of § 3624(c)(2). The other, the First Step Act of 2017, passed under Barr’s boss, former Pres. Donald J. Trump (R), lowered the qualifying age for home confinement from 65 to 60.
The result is that extended periods of home confinement are no longer unusual, OLC’s memo noted. Rather, it was the “widespread return of prisoners without a disciplinary reason” which “would be unprecedented.”
The memo contains another important observation that “under regular circumstances, inmates who have made this transition to home confinement would not be returned to a secure facility, unless there is disciplinary reason to do so.” From a penological standpoint, the benefit of home confinement as “one of the last steps of a reentry program” is that it provides reintegration into the community “with support, resources, and supervision from the [BOP].”
Acknowledging that this view “departs” from that expressed in its earlier January 2021 opinion, OLC nonetheless insisted that if Congress had “intended an unprecedented and penologically unjustified mass recall of prisoners from home confinement, it would have said so.” See: Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency, Office of Legal Counsel Memorandum Opinion (Dec. 21, 2021).
Of course, had BOP taken full advantage of the CARES Act flexibility, it would have released a much higher share of its prisoners than the six percent it did. For example, the Justice Department’s Office of the Inspector General estimated in April 2020 that almost 1,000 prisoners would be eligible for home confinement at the U.S. Penitentiary in Lompoc, California. But a few months later, just 124 had actually been released. Of over 1,000 prisoners estimated to be eligible at the Federal Correctional Complex in Butner, North Carolina, the total was just 68.
As of May 6, 2022, BOP had recorded the deaths of 237 prisoners to COVID-19, only 11 of whom were on home confinement. With more aggressive releases of these elderly, medically vulnerable people, who knows how many more would still be alive today?
Additional source: NPR
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