continuing in the First Step Act of 2018.[46]. The President declared the COVID-19 outbreak a national emergency beginning March 1, 2020; that national emergency was extended on February 24, 2021, and again on February 18, 2022, and is still in effect as of June 15, 2022. 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 . A group of human rights lawyers wants the United Nations to examine why Black people spend an unusually long time in solitary confinement.. Among other items, the 2022 CAA provides a temporary extension to the CARES Act telehealth relief, which expired on December 31, 2021. Start Printed Page 36796 U.S. Centers for Disease Control and Prevention, Basics of COVID-19 (updated Nov. 4, 2021), Despite public requests to rescind the memo, the . 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. available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf. Document Drafting Handbook In response . 751. 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. 50. 657, 692-93 (2008). 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. Of this total, there were 2,272 inmates with release dates in more than 18 months; 593 inmates with release dates in 5 years or more; and 27 inmates with release dates in 10 years or more. 68. See id. 8. 22. 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. See, e.g., 503 U.S. 329, 335 (1992); (last visited Apr. The Department and the Bureau will consider the factors referenced in this paragraph when developing common criteria to govern these case-by-case assessments, thereby promoting operational efficiency and equitable treatment of offenders. More contagious variants of the virus that causes COVID-19 could exacerbate the spread, and it is unknown whether currently available vaccines will be effective against new variants that may arise. Rodriguez CARES Act sec. Whether the BOP will do that, however, remains to be seen. see As has already been discussed, the Department's interpretation of the CARES Act is aligned with the relevant statutory language, structure, purpose, and history. Wendy Hechtman tells her story below. 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. 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. . This proposed rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. Register, and does not replace the official print version or the official Reaffirm condemnation of torture as a human rights violation and call for an end to prolonged solitary confinement as a form of torture. Additional observation and research will need to be conducted to determine if this very low level of recidivism can be maintained, or if it was affected by the unique external circumstances caused by the global pandemic. 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. [53] 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] Neither the BOP nor the DOJ have publicly released or published that memo, however, leaving criminal defense . 18 U.S.C. Federal Register. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. But the current opinion also explains the rationale underlying its [7], The United States Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services has recognized that the 41. 603(a), 132 Stat. FSA sec. As noted above, U.S. Centers for Disease Control and Prevention, COVID Data Tracker, id. According to the Bureau, 4,902 of these inmates were placed in home confinement pursuant to the CARES Act. documents in the last year, 285 A 2019 study found that Black women comprise 42 percent of women in solitary detention yet only 21.5 percent of all female prisoners. That section, 12003(c)(1), provides that: During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau shall promulgate rules regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates, during the covered emergency period.[33]. L. 115-391, sec. 251(a), 122 Stat. 5 U.S.C. (last visited Apr. Second, OLC did not interpret the 30-day grace period following the end of the national emergency as necessarily suggesting that Congress intended the Bureau to use that time to return CARES Act inmates to secure custody. Individuals in close contact with an infected persongenerally less than 6 feet apartare most likely to get infected. and breakthrough infections may occur even in fully vaccinated persons, who are then able to spread the disease. Federal Bureau of Prisons, PATTERN Risk Assessment, Released prisoners cite family support as the most important factor in helping them stay out of prison. any impact on victims or witnesses, possible deterrence effects in the community, or other aspects of the agency's mission. and services, go to Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. 18 U.S.C. 115-699, at 22-24 (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.). Congress further expanded the Bureau's use of home confinement through the FSA in three contexts. 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. [63] 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. if a court concludes that such a statute is ambiguousa determination typically referred to as 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. The total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 31,503." The Biden administration is . 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. 281, 516 (2020) (CARES Act). PRISONS AND CORRECTIONAL SERVICE BILL, 2022 Explanation MEMoranduM This Bill will provide for establishment, functions and administration of the Prisons and Correctional Service; the Prisons and Correctional Service Commission; the establishment of prisons and correctional facilities; the functions, rights, obligations and discipline of prison officers; the safe custody of all offenders under . More information and documentation can be found in our 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. On April 3, 2020, the Attorney General issued a second memorandum for the Director, finding that emergency conditions were materially affecting the functioning of the Bureau, and acknowledging that the Bureau was experiencing significant levels of infection at several of our facilities.[18] Finally, as a practical matter, this interpretation permits the Bureau to consider whether returning CARES Act inmates to secure custody would increase crowding in BOP facilities and risk new, potentially serious COVID-19 outbreaks in prisons even after the broader national emergency has passed. Inmates who violate these conditions may be disciplined and returned to secure custody. Start Printed Page 36789 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. [24] 3624(c)(2), during and for 30 days after the termination of the national emergency declaration concerning COVID-19, provided that the Attorney General has made a finding that emergency conditions are materially affecting BOP's functioning. Until the ACFR grants it official status, the XML 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. Inmates in home confinement must submit to drug and alcohol testing, and counseling requirements. 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. See 301; 18 U.S.C. The changes made by the FSA to the process for awarding GCT credit have resulted in recalculation of the release date of most inmates. This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). Previous research has similarly shown that inmates can maintain accountability in home confinement programs. Court Approves Settlement; BOP to Rapidly Process Lompoc Inmates Under Expanded CARES Act Home Confinement Rules. Memorandum for Chief Executive Officers from Andre Matevousian The CARES Act does not mandate that any period of home confinement lengthened during the covered emergency period must end after the expiration of that period. 67. By Katie Benner. [41] See, e.g., 5194, 5238 (2018), One of the vital tools in operating a correctional system is the ability to effectively manage bedspace based on the needs of the offender, security requirements, and agency resources. Between March 26, 2020, and January 10, 2022, the Bureau placed in home confinement a total of 36,809 inmates. available at https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5 46. documents in the last year, 20 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. Comments are due on or before July 21, 2022. See . The State of NJ site may contain optional links, information, services and/or content from other websites operated by third parties that are provided as a convenience, such as Google Translate. 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. Traditionally, the Federal Bureau of Prisons allowed inmates to be placed in home confinement . The Bureau, in its discretion, forwards certain home confinement cases to the prosecuting United States Attorney's Office for the input of prosecutors, taking any objections into account when approving or denying those cases. 4. www.regulations.gov. This site displays a prototype of a Web 2.0 version of the daily And it is in the best penological interests of affected inmates. As of April 26, 2022, over 988,000 people in the United States have died from COVID-19. [23] Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. After July 21, 2022, the BOP and DOJ will review the comments and issue a Final Rule. See id. Language and Structure of the CARES Act, PART 0ORGANIZATION OF THE DEPARTMENT OF JUSTICE, https://www.federalregister.gov/d/2022-13217, MODS: Government Publishing Office metadata, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf, https://www.justice.gov/olc/file/1457926/download, part 0 of title 28 of the Code of Federal Regulations, https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html, https://covid.cdc.gov/covid-data-tracker/#datatracker-home, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/correction-detention/COVID-Corrections-considerations-for-loosening-restrictions-Webinar.pdf, https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVID-19%20and%20FSA%20provisions%20-%20final%20bipartisan%20text%20with%20signature%20blocks.pdf, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf, https://www.bop.gov/inmates/fsa/pattern.jsp, http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf, https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf, https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf, https://www.bop.gov/coronavirus/faq.jsp, https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf, https://www.justice.gov/olc/file/1355886/download, https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5, https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/living-prisons-jails.html, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html. At this moment, thousands of people safely completing their sentences at home are living in fear that they'll be sent back to federal prison through no fault of their own. 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. at *4. In the alternative, written comments may be mailed to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534.