by Jordan Arizmendi
In its final rule that took effect on May 4, 2023, the federal Department of Justice (DOJ) declared that prisoners placed on home confinement by the federal Bureau of Prisons (BOP) under eligibility criteria expanded by Congress in response to the COVID-19 pandemic would not have to return to prison, now that the pandemic has ended.
In March 2020, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act. The law considered incarcerated individuals highly vulnerable to COVID-19 because the federal Centers for Disease Control and Prevention (CDC) said that those in close contact with an infected person – less than six feet – are likely to get infected with the novel coronavirus that causes the disease. As a result, spending a night in a crowded prison cell could turn any term into a death sentence.
The CARES Act expanded eligibility for home confinement under 18 U.S.C. § 3624(c)(2). Previously, it was available only to federal prisoners with no longer left to serve than “the lesser of ten percent of a prisoner’s sentence or six months.”
However, the expansion lasted only “for the period of the covered emergency.” As a result, in January 2021, former Attorney General William P. Barr estimated that at least 2,830 prisoners then on expanded home confinement would have to return to BOP custody when the pandemic ended. [See: PLN, June 2022, p.28.]
Under current Attorney General Merrick Garland, DOJ allowed BOP to expand eligibility for home confinement in May 2021 to 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 sentence.” BOP was also given flexibility to analyze prisoners more closely for specific COVID-19 vulnerabilities.
Importantly, this expanded eligibility came along with a promise 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.”
Home confinement is not like release from prison. There are regular drug and alcohol tests. There is no leaving home, except for certain activities, like work or therapy. It is also not supposed to be used “for re-entry purposes,” as DOJ acknowledged in its new rule. But it “conclude[d] that the best use of [BOP] 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 supporting inmates’ eventual reentry into the community.” See: 88 FR 19830.
Since the CARES Act was passed, more than 12,000 BOP prisoners have transferred to home confinement. As of September 2022, just 17 had committed new crimes.
Additional source: Washington Post
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