26, 2022). 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. 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. available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html v. on The letter, dated Feb. 7, is a response to a request from 27 members of Congress asking for specific details regarding whether or not all released prisoners will remain on home confinement and . 5238. Re: Home Confinement 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. Federal Bureau of Prisons, Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic, Such individualized assessments are consistent with direction the Bureau has received from Congress in other contexts. 03/03/2023, 234 3(a), 122 Stat. In addition, most sentencing courts anticipated that offenders would be incarcerated in a secure facility, and there may be concern that placing inmates in home confinement for longer periods might not appropriately honor the intent of the courts, the interests of prosecuting United States Attorney's Offices,[69] For complete information about, and access to, our official publications The . documents in the last year, by the National Oceanic and Atmospheric Administration (last visited Apr. [61] Among other items, the 2022 CAA provides a temporary extension to the CARES Act telehealth relief, which expired on December 31, 2021. establishing the XML-based Federal Register as an ACFR-sanctioned (July 22, 2022) Federal Defenders Organization memorandum, CARES Act Home Confinement Revocations (August 3, 2022) - Thomas L. Root. (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. [35] 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. Comments are due on or before July 21, 2022. DATES: Comments are due on or before July 21, 2022. In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. O.L.C. Last week, Families Against Mandatory Minimums ("FAMM") issued a statement praising a memo issued by DOJ that expanded the number of inmates who are eligible for release to home confinement under the CARES Act. 38. 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. et seq. Related to: COVID-19, Incarceration, Sentencing Reform, Federal Advocacy. edition of the Federal Register. 16. Released prisoners cite family support as the most important factor in helping them stay out of prison. 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. On June 21, 2022, the Federal Register issued a call for comments on a rule as how the BOP would end the program of transferring prisoners to home confinement upon the end of the CARES Act. rendition of the daily Federal Register on FederalRegister.gov does not ADDRESSES: Please submit electronic 69. 301. codified at [10] at *4-5. 18 U.S.C. On December 21, 2021, Attorney General Merrick Garland announced that DOJ would be rescinding the January 2021 Office of Legal Counsel memo that determined that thousands of people who are currently serving sentences on home confinement through a provision of the CARES Act would need to return to federal custody after the termination of 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. The President of the United States manages the operations of the Executive branch of Government through Executive orders. the current document as it appeared on Public Inspection on 2. 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. If you want to inspect the agency's public docket file in person by appointment, please see the has no substantive legal effect. 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]. the Federal Register. continuing in the First Step Act of 2018.[46]. 26, 2022). I've talked to several people about my experiences on home confinement, I . Wendy Hechtman tells her story below. . Author, Youtuber, Paralegal, Hacker, Defcon Speaker, and Coffee Addict 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. 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. 516. average of $55 per dayless than half of the cost of an inmate in secure custody in FY 2020. 5 U.S.C. 12003(b)(2). The Rule is open for public comment until July 21, 2022. Under see also 45. In addition, implementation of this interpretation is operationally sound and provides flexibility in managing BOP-operated institutions as well as cost savings for the Bureau. 1501 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. 03/03/2023, 827 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. .). 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. at 516. 5 U.S.C. [20] This proposed rule falls within a category of actions that the Office of Management and Budget (OMB) has determined to constitute a significant regulatory action under section 3(f) of Executive Order 12866 because it may raise novel legal or policy issues arising out of implementation of section 12003(b)(2) of the CARES Act and, accordingly, it was reviewed by OMB. (Apr. The Department has assessed the costs and benefits of this rulemaking as required by Executive Order 12866 section 1(b)(6) and has made a reasoned determination that the benefits of this rulemaking justify its costs. 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. (3) This section concerns only inmates placed in home confinement under the CARES Act. This interpretation is supported by the text, structure, and purpose of the CARES Act and therefore is the better reading of the statute, as more fully explained in OLC's December 21, 2021 opinion. 18. Before being placed in home confinement, inmates sign agreements which require consent to submit to home visits and drug and alcohol testing, acknowledgement of monitoring requirements, and an affirmation that they will not engage in criminal behavior or possess firearms. 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. See, e.g., United States 5238. [50] available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. [12], The Attorney General's memorandum explained that some offenses would render an inmate ineligible for home confinement, and that other serious offenses would weigh more heavily against consideration for home confinement. 1593Second Chance Act of 2007, Congress.gov, They are not permitted to leave their residences except for work or other preapproved activities such as counseling. documents in the last year, 470 Still today, the BOP continues to screen people in the federal prisons to identify those . 15. by the Foreign Assets Control Office The Effect of California's Realignment Act on Public Safety, 10. 53. 181 JAMA Internal Med. of the issuing agency. [40] . Register (ACFR) issues a regulation granting it official legal status. Part C.1, the current OLC opinion explains the textual basis for this view, including the absence of a statutory limit on the length of CARES Act home-confinement placements and the contrast between CARES Act sections 12003(b)(2) and 12003(c)(1). . Start Printed Page 36793 shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed . www.regulations.gov. paragraph. (last visited Apr. O.L.C. By implementing the CARES Act, Treasury is taking . at 1 (Apr. Management of inmates in home confinement since the beginning of the COVID-19 pandemic, the largest community confinement population in recent history, has been robust. And it is in the best penological interests of affected inmates. 3624(c)(2). Removal from the community would therefore frustrate this goal. 22. 23-44 (2020), 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. Memorandum for Chief Executive Officers from Andre Matevousian 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. 3. A Proposed Rule by the Justice Department on 06/21/2022. While the criteria for placement in home confinement . The CARES Act provides that if the Attorney General finds that emergency conditions will . 3624(g). 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 . increased crowding in prisons, which makes social distancing difficult, is associated with increased incidence of COVID-19. BOP, 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 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. Congress has explicitly provided the Bureau responsibility for maintaining custody of Federal inmates[52] 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] 51. 12003(b)(2), 134 Stat. 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] Start Printed Page 36791 467 U.S. at 843. Email. CARES Act sec. 3501-3521. on https://www.bop.gov/coronavirus/faq.jsp On June 21, 2022, the Federal Register issued a call for comments on a rule as how the BOP would end the program of transferring prisoners to home confinement upon the end of the CARES Act. Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. 61. 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. 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. 2022 (OPI- RSD/RRM . First, 18 U.S.C. prisoner may be placed in home confinement. What is home confinement? 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. see also The term to place derives from a different statute18 U.S.C. daily Federal Register on FederalRegister.gov will remain an unofficial See 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. at *7-9. Register, and does not replace the official print version or the official . [3] The January 2021 OLC opinion based its conclusion on three principal determinations. 115-699, at 2224; SCA sec. 59. 5212, . April 07, 2022. 8. CARES Act sec. 68. Transitional jobs programs have proven to help people with criminal records to successfully return to the workplace and the community, and therefore can reduce recidivism.). The Act's name is the Coronavirus Aid, Relief, and Economic Security Act. See Second, the Attorney General's finding, in turn, triggers the Director's discretion to lengthen the maximum amount of time an inmate may be placed in home confinement, as the Director determines appropriate.[44] website. Id. 39 Vaccine 5883 (2021). [63] Federal Register issue. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorizes the Director of the Bureau of Prisons (Director), during the covered emergency period and upon a finding by the Attorney General that emergency conditions resulting from the Coronavirus Disease 2019 (COVID-19) pandemic materially affect the functioning of the Bureau of Prisons (Bureau or BOP), to lengthen the maximum amount of time for which a prisoner may be placed in home confinement. 3632(d); Chris' books include Directory of Federal Prisons (Middle Street Publishing . These actions removed vulnerable inmates from congregate settings where COVID-19 spreads easily and quickly and also reduced crowding in BOP correctional facilities. 37. documents in the last year, 87 Individuals placed in home confinement under the CARES Act, like other inmates in home confinement, remain in the custody of the Bureau. 14. [45] And the widespread return of prisoners to secure custody without a disciplinary reason would be unprecedented. (last visited Apr. Copenhaver, 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. L. 115-391, sec. April 3 Memo at 1. This PDF is 52. It was created pursuant to the First Step Act of 2018. headings within the legal text of Federal Register documents. 603(a), 132 Stat. This information is not part of the official Federal Register document. See id. Re: Home Confinement 3624(c)(2) after the expiration of the covered emergency period (or if the Attorney General were to revoke his findings). available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html For these additional reasons, detailed further below, if the statute is deemed ambiguous, the Department's interpretation of section 12003(b)(2) represents a reasonable exercise of the Attorney General's and the Director's policy discretion that would be entitled to deference. available at https://www.justice.gov/olc/file/1355886/download. In 0.96, add paragraph (u) to read as follows: (u) With respect to the authorities granted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. 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. Start Printed Page 36788. Under these agreements, individuals placed in home confinement are subject to electronic monitoring; check-in requirements; drug and alcohol testing; and transfer back to secure correctional facilities for any significant disciplinary infractions or violations of the agreement. available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). Section 12003(b)(2) of the CARES Act authorizes the Director to place inmates in home confinement, notwithstanding the time limits set forth in 18 U.S.C. This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). Federal Register. __, at *11-12. 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. Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. Since March 2020, following the Attorney General's directive, the Bureau has significantly increased the number of inmates placed in home confinement under the CARES Act and other preexisting authorities. 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.