(Nov. 16, 2020), CARES Act sec. following the end of the covered emergency period. 26-27 (2020), 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. Lompoc, California (DAS) - In May 2020, during the peak of the original COVID-19 national pandemic, the federal prison at Lompoc, California was 130% overcrowded. 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. Pub. 13, 2021), headings within the legal text of Federal Register documents. 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. Most are working, paying taxes, and supporting themselves and their children. 26. The statute provides that an inmate placed in home confinement under this incentive program shall remain in home confinement until the prisoner has served not less than 85 percent of the prisoner's imposed term of imprisonment, and that the Bureau should provide progressively less restrictive conditions on inmates who demonstrate continued compliance with the conditions of prerelease custody.[51]. 47. at 304-06. 3624(c)(2) after the expiration of the covered emergency period (or if the Attorney General were to revoke his findings). 29, 2022); Nat'l Academies of Sciences, Engineering, and Medicine, Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. Although the numbers will likely differ for FY 2021 and beyond, the Department and the Bureau expect that the proposed rule will benefit them as a result of the avoidance of costs the Bureau would otherwise expend to confine the affected inmates in secure custody. 14. Recently, Congress passed a government funding bill, entitled the Consolidated Appropriations Act of 2022 (2022 CAA). 3624(c)(2) as the Director deems appropriate. The CARES Act authorizes the Director of the Bureau of Prisons to lengthen the amount of time a prisoner may be placed in home confinement beyond the statutory maximum normally allowed under 18 U.S.C. Although the CARES Act plainly states that the Director's authority to lengthen the maximum period of home confinement exists during the covered emergency period, the Act is silent about what happens to an inmate who was placed in home confinement under this authority, but who has more than the lesser of ten percent of her sentence or six months remaining in her term of imprisonment after the covered emergency period expires. 18 U.S.C. Federal Home Confinement In The Covid-19 Era. that agencies use to create their documents. These markup elements allow the user to see how the document follows the For all the reasons set forth above, the Department proposes to promulgate this rulemaking under the Attorney General's authority, 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. corresponding official PDF file on govinfo.gov. codifed at (last visited Apr. documents in the last year, 87 Christopher Zoukis, JD, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation and in-prison matters. Although the Bureau's decision to place an inmate in home confinement is based on many factors, where the Bureau deems home confinement appropriate, that decision has the added benefit of reducing the Bureau's expenditures. on 1109, 134 Stat. .). In response . 1501 By the Act's plain terms, the Director's authority to place an inmate in home confinement under the CARES Act expires at the end of the covered emergency period, or if the Attorney General revokes his finding. Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 30. documents in the last year, by the Executive Office of the President .). 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. 3621(b). __(Jan. 15, 2021), After July 21, 2022, the BOP and DOJ will review the comments and issue a Final Rule. FSA sec. 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. The goal of this expanded authority was obvious: prevent the spread of COVID-19 in prisons. Congress has demonstrated through the passage of the SCA and the FSA an increasing interest in appropriately preparing inmates for reintegration into society, and an ongoing reevaluation of the societal benefits of incarceration versus non-custodial rehabilitative programs. Now, the BOP has the ability to allow those released to stay home. Items To Bring For Your Stay. By implementing the CARES Act, Treasury is taking . (last visited Apr. Federal Register issue. 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. 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. Older adults and individuals with underlying medical conditions are at increased risk of severe illness or death. WASHINGTON Thousands of federal inmates will become eligible for release this week under a rule the Justice Department published on Thursday that allows more . FSA sec. [40] Chevron, Today I asked BOP what those crimes were and . 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. 12003(b)(2), 134 Stat. 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. 3624(g). Second, the FSA reauthorized and expanded the pilot program to place eligible elderly offenders in home confinement by lowering the age requirement from 65 to 60 years old, reducing the amount of the sentence imposed an inmate must have served to qualify for the program, and allowing it to be applied to eligible terminally ill inmates regardless of age. 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). Federal Bureau of Prisons, PATTERN Risk Assessment, et al., documents in the last year, 20 11. That authority under the CARES Act exists during the period for which there is a declaration of national emergency with respect to the COVID-19 pandemic and for 30 days after the termination of that declaration, provided that the Attorney General has made a finding that the emergency conditions materially affect the functioning of the Bureau of Prisons. 26, 2020), See Home-Confinement Placements, (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). This proposed rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. [25] See Home Confinement of Federal Prisoners After the COVID-19 Emergency, __, at *11-12. See id. As of April 26, 2022, over 988,000 people in the United States have died from COVID-19. More information and documentation can be found in our [8] See The Attorney General instructed the Director to use the expanded home confinement authority provided in the CARES Act to place the most vulnerable inmates at the facilities most affected by COVID-19 in home confinement, following quarantine to prevent the spread of COVID-19 into the community, and guided by the factors set forth in the March 26, 2020 memorandum. provides that most people on home confinement should remain there through the end of their sentence. NOTE: As of 12/21/2021, the OLC updated its guidance on home confinement. Nat'l Academies of Sciences, Engineering, and Medicine, COVID-19 is caused by an extremely contagious virus known as SARS-CoV-2 that has spread quickly around the world. 12003(c)(1), 134 Stat. While the criteria for placement in home confinement . 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. However, according to the Bureau, as of January 10, 2022, there were 2,826 total inmates placed in home confinement under the CARES Act with release dates in more than 12 months. Re: Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic 4001(b)(1). The average cost for an inmate in home confinement was $55 per day, representing a cost savings of approximately $65.59 per day, per inmate, or approximately $23,940.35 per year, per inmate. See PATTERN is a tool that measures an inmate's risk of recidivism and provides her with opportunities to reduce her risk score. 56. [6] (GC 2022-D066) 62 Please note that all comments received are considered part of the public record and made available for public inspection online at Resume. 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. [47] Start Printed Page 36790 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 18 U.S.C. sec. 101, 132 Stat. . Chevron, U.S.A., Inc. See 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. 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. daily Federal Register on FederalRegister.gov will remain an unofficial 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]. Following guidance from the Attorney General, the Director has exercised his discretion under the CARES Act to place thousands of inmates in home confinement during the pandemic emergency. documents in the last year. They are not permitted to leave their residences except for work or other preapproved activities such as counseling. v. 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 only 8 were returned for new criminal conduct (6 for drug-related conduct, 1 for smuggling non-US citizens and 1 for escape). Jan. 13, 2022. 40. Related to: COVID-19, Incarceration, Sentencing Reform, Federal Advocacy. 15 Criminology & Pub. 46. For all of these reasons, the Department believes that it is not only statutorily authorized, but also operationally appropriate for the Director to have the discretion to allow individuals placed in home confinement under the CARES Act to remain in home confinement after the end of the covered emergency period. the Federal Register. 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. 751. 3624(c)(2). available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed . Third, the FSA established earned time credits that eligible inmates could accrue through participating in recidivism-reducing programs and then apply for transfer to pre-release custody, including home confinement, without regard for the time frames set forth in 18 U.S.C. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). 101(a), 132 Stat. www.regulations.gov. [7], The United States Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services has recognized that the According to the Bureau, as of March 4, 2022, a small percentage of inmates placed in home confinement pursuant to the CARES Act357 out of approximately 9,500 total individualshad been returned to secure custody as a result of violations of the conditions of home confinement. In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. .). 33. Violations of the conditions of home confinement requiring return have been rare during the pandemic emergency, however, and very few inmates placed in home confinement under the CARES Act have committed new crimes. By April 2021, the Bureau clarified that the criminal history check covered both an inmate's crime of conviction and her broader criminal history. My name is Wendy Hechtman and I'm currently serving a federal prison sentence at home under the CARES act. the official SGML-based PDF version on govinfo.gov, those relying on it for 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. Inmates who violate these conditions may be disciplined and returned to secure custody. documents in the last year, 11 Moreover, as findings in the SCA indicate, inmates who are provided the types of benefits home confinement can afford, such as opportunities to rebuild ties to family and to return to the workplace and to the community, may ultimately be less likely to recidivate. .). (Apr. See id. See CARES Act sec. 467 U.S. 837 (1984).[29]. 823 F.3d 1238, 1242 (9th Cir. Although COVID-19 often presents with mild symptoms, some people become severely ill and die. It quickly became one of the worst hit federal prisons in the country with a massive COVID-19 outbreak. informational resource until the Administrative Committee of the Federal 23-44 (2020), documents in the last year, 1476 28, 2022). Register (ACFR) issues a regulation granting it official legal status. The majority of those inmates have since completed their sentences; as of January 10, 2022, there were 7,726 inmates in home confinement. edition of the Federal Register. 32. inmate considered and must continue to act consistently with its obligation to preserve public safety. (last visited Apr. According to The Hill, Delia Addo-Yobo is a staff attorney for the Robert F. Kennedy Human Rights U.S. Such individualized assessments are consistent with direction the Bureau has received from Congress in other contexts. These data suggest that inmates placed on longer-term home confinement under the CARES Act can be and have been successfully managed, with only a limited number requiring return to secure custody for disciplinary reasons. This section differs from section 12003(b)(2) in important ways. Memorandum for the Director, Bureau of Prisons from the Attorney General, see Despite public requests to rescind the memo, the . 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. Their freedom didn't last long. 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. Data show that these procedures have been working to preserve public safety where inmates were placed on extended home confinement under the CARES Act, and the Department expects that such measures will continue to be effective after the end of the covered emergency period. See Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency, available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. 6. et al., 35. 26, 2022). (April 3 Memo). on NARA's archives.gov. 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 . 301; 18 U.S.C. See see supra 65. But upon the Attorney General's further review of the statutory language, and in the face of a growing body of evidence demonstrating the success of CARES Act home confinement placements, the Attorney General requested that OLC reconsider its earlier opinion. 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. 301; 28 U.S.C. 45 Op. Register, and does not replace the official print version or the official . This is an amazing reality to be robustly celebrated, in part because it reveals that our federal system can effectively identify low-risk offenders who can be released early . 64. documents in the last year, by the Nuclear Regulatory Commission at 5210-13, In Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. That guidance also instructed that pregnant inmates should be considered for placement in a community program, to include home confinement. H.R. [30] The publication also suggests best practices for implementing community-based . 301. documents in the last year, 285 A group of human rights lawyers wants the United Nations to examine why Black people spend an unusually long time in solitary confinement.. See, e.g., United States (last visited Apr. on et al. ( [59] Register documents. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase CONFIDENTIAL BUSINESS INFORMATION in the first paragraph of your comment. The OFR/GPO partnership is committed to presenting accurate and reliable

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