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FREQUENTLY ASKED QUESTIONS REGARDING POTENTIAL INMATE HOME CONFINEMENT IN RESPONSE TO THE COVID-19 PANDEMIC . But the current opinion also explains the rationale underlying its at sec. See 45 Op. The House of Representatives passed the Second Chance Act by a vote of 347 to 62, and the Senate passed the Act without amendment by unanimous consent. Many inmates placed in home confinement during the COVID-19 pandemic have reached the end of their term of incarceration, or will do so within the next six months. 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. available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf. ( 3624(c)(2) after the expiration of the covered emergency period (or if the Attorney General were to revoke his findings). [49] 3624(c)(2). at 5198, 3624(c)(2)].[48] 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. 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. Although COVID-19 often presents with mild symptoms, some people become severely ill and die. The Department's interpretation is also consistent with congressional action demonstrating an interest in increasing the Bureau's use of home confinement. [45] 1503 & 1507. It ranks as one of the most successful programs implemented by the BOP. [26] 64 Fed. 03/03/2023, 268 You must also prominently identify the confidential business information to be redacted within the comment. has no substantive legal effect. 03/03/2023, 234 The President of the United States manages the operations of the Executive branch of Government through Executive orders. 18 U.S.C. [68] 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). Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. The Home Confinement Clearinghouse will match . Document page views are updated periodically throughout the day and are cumulative counts for this document. shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed . 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. 503 U.S. 329, 335 (1992); 11. offers a preview of documents scheduled to appear in the next day's Most of the 17 offenses were drug-related. While the criteria for placement in home confinement . available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. increased crowding in prisons, which makes social distancing difficult, is associated with increased incidence of COVID-19. This proposed rule accords with OLC's revised views and codifies the Director's authority to allow inmates placed in home confinement under the CARES Act to remain in home confinement after the end of the covered emergency period. documents in the last year, 1411 CDC, Considerations for Modifying COVID-19 Prevention Measures in Correctional and Detention Facilities (June 22, 2021), 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. 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. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). [40] 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). In response to COVID-19, the BOP instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention . Abigail I. Leibowitz [34] DOJ, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 87 FR 36787 (June 21, 2022) Forbes, Department of Justice Proposes Final Rule to End CARES Act for Home Confinement for Federal Prisoners (June 25, 2022) Order (ECF 27), Tompkins v. Pullen, Case No 3:22cv339 (D.Conn) 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. For all of these reasons, the Department proposes to provide the Director with express authority and discretion to allow prisoners who have been placed in home confinement under the CARES Act to remain in home confinement after the conclusion of the covered emergency period. As of December 2021, the BOP has transferred over 36,000 eligible inmates to home confinement following the instructions from the Attorney General on March 26, 2020, that the BOP prioritizes home confinement as an appropriate response to the Covid-19 pandemic.. v. The Department incorporates the analysis from OLC's opinion into the preamble of this notice of proposed rulemaking. The authority citation for part 0 continues to read as follows: Authority: Released prisoners cite family support as the most important factor in helping them stay out of prison. 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. Third, the FSA created an incentive for eligible inmates to participate in programs shown to reduce their risk of recidivism by allowing individuals to earn time credits, which may be used for earlier transfer to prerelease custody, including home confinement, notwithstanding the time limits included in 18 U.S.C. Traditionally, the Federal Bureau of Prisons allowed inmates to be placed in home confinement . Even if section 12003(b)(2) of the CARES Act were found to be ambiguous, the Department believes its view would be entitled to deference as a reasonable reading of a statute it administers. 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 Ned Lamont said. and services, go to See Home-Confinement Placements, Start Printed Page 36791 3624(c)(2). and discretion to designate the place of those inmates' imprisonment. 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. 26. Start Printed Page 36790 The OFR/GPO partnership is committed to presenting accurate and reliable First, that section empowers the Attorney General to make a finding, during the pandemic emergency, that the pandemic has materially affected the functioning of the Bureau. available at https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf. https://www.bop.gov/inmates/fsa/pattern.jsp. These actions removed vulnerable inmates from congregate settings where COVID-19 spreads easily and quickly and also reduced crowding in BOP correctional facilities. CARES ACT | Home Confinement | COVID- 19 & the BOP dropping the ballMany individuals were scheduled to be released directly to home confinement due to COVID-. 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. publication in the future. BOP later clarified that inmates with low or minimum PATTERN scores qualify equally for home confinement, and that the factors assessed to ensure inmates are suitable for home confinement include verifying that an inmate's current or a prior offense was not violent, a sex offense, or terrorism-related. . A new law setting limitations on isolated confinement for incarcerated individuals will take effect in Connecticut on July 1, Gov. 1315 (2021); [13], Prior to the passage of the CARES Act, Congress had enacted three main sources of statutory authority to allow the Bureau to place inmates in home confinement as part of reentry programming. 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. See id. Id. should verify the contents of the documents against a final, official 60. 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. FSA Time Credits, 87 FR 2705 (Jan. 19, 2022). on 3621(a) (A person who has been sentenced to a term of imprisonment . L. 116-136): (1) During the covered emergency period as defined by the CARES Act, when the Attorney General determines that emergency conditions will materially affect the functioning of the Bureau of Prisons (Bureau), lengthening the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under 18 U.S.C. By implementing the CARES Act, Treasury is taking . .). 301. 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. documents in the last year, 87 In a letter to the Attorney General and the Director dated March 23, 2020, a bipartisan group of United States Senators expressed concern about the potential for COVID-19 spread among, in particular, vulnerable Bureau staff and inmates, and called upon the Bureau to use available statutory authorities to increase its utilization of home confinement to mitigate the risk.[9]. See, e.g., the Federal Register. See [32] at *7-9. . [53] 3621(a), (b). 5 U.S.C. 2. It was previously unclear whether inmates would have to return to prison when the pandemic ends. 03/03/2023, 43 See Home Confinement of Federal Prisoners After the COVID-19 Emergency, O.L.C. The Bureau also explained that home confinement decisions have historically been made on an individualized basis, which serves penological goals. at *12. ADDRESSES: Please submit electronic First, it instructed the Director to ensure, to the extent practicable, that a prisoner spends a portion of the final months of her term of imprisonment in conditions designed to prepare her for reentry into the community, including community correctional facilities, and explicitly provided the Director with discretion to place inmates in home confinement for a period not to exceed the last six months or 10 percent of their terms of imprisonment. And it is in the best penological interests of affected inmates. In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. Download 18 U.S.C. [5] Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety documents in the last year, 955 In April 2020, then-Attorney General William Barr directed the Federal Bureau of Prisons (BOP) under the CARES Act to reduce the number of people in federal prisons. In contrast, according to the Bureau, an inmate in home confinement costs an The CARES Act allowed for the compassionate release of prisoners who had risk factors for the virus, according to the Centers for Disease Control (CDC), and who pose a lower risk of flight. CARES Act Home Confinement & the OLC Memo. Although inmates in home confinement are transferred from correctional facilities and placed in the community, they are required to remain in the home during specified hours, and are permitted to leave only for work or other preapproved activities, such as occupational training or therapy. 26, 2022). According to the Bureau, 4,902 of these inmates were placed in home confinement pursuant to the CARES Act. Court Approves Settlement; BOP to Rapidly Process Lompoc Inmates Under Expanded CARES Act Home Confinement Rules. Specifically, the Bureau of Prisons must release early an offender who has completed at least half of his or her sentence if such offender has attained age 45, has never been convicted of a crime of . available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html See id. Letter for Attorney General Barr & Director Carvajal from Senator Richard J. Durbin At the outset, the Department has authority to promulgate rules to manage the Bureau of Prisons, and to administer CARES Act section 12003(b)(2). 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 . available at https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9 This document has been published in the Federal Register. 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. headings within the legal text of Federal Register documents. 26, 2022). 301; 28 U.S.C. 5212, 11, 17 (2000) (finding that 89 percent of 17,000 individuals placed in home confinement between 1988 and 1996 successfully completed their terms without incident). 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. Whether the BOP will do that, however, remains to be seen. et al., Association Between Prison Crowding and COVID-19 Incidence Rates in Massachusetts Prisons, April 2020-January 2021, The publication also suggests best practices for implementing community-based . New law seeks to create path around state's constitutional health care provision adopted in 2012. See Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency, at 516. While every effort has been made to ensure that

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