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In January of this year the Attorney General’s Deputy Counsel offered current perspective and potential resolution regarding CARES Act authority to BOP and home confinement of inmates – noting 18 U.S.C. § 3624(c)(2) and 18 U.S.C. § 3621(a) and (b); and CARES Act section 12003(b)(2) along with the 2019 National Emergencies Act; and specifically the ‘preexisting’ BOP discretion to employ home confinement as compared to expansion of that discretion in recent pandemic circumstances, and a preparation to return to preexisting authority policy requirements. This memo provides a window into DOJ-BOP discussion preparing for a conclusion to the National Emergencies Act – w/commentary as to the parameters of 3624(c)(2) and 3621(a) and (b); and community confinement policies generally under continuing circumstances going forward.

Specifically, how the ‘Coronavirus Aid, Relief and Economic Security Act’ (and ‘CARES Act’) period of application will be further defined, or how emergency conditions progressively affect BOP’s functioning to be specified going forward, is unclear at the moment as current pandemic conditions are assessed. As to when individuals might potentially be recalled from home confinement and sent back to an institution (should the Attorney General rescind the emergency act’s necessity) is likely a logistical situation DOJ/BOP is presently reviewing as well – where proximity to a formal release date or home confinement eligibility under 18 U.S.C § 3624(c)(2) is likely a factor to be considered – and whether any alternative authority (or further extension of the emergency act) will be provided under 18 U.S.C. § 3621(a) and (b) to allow home confinement to continue for those ineligible w/3624(c)(2) remains to be seen.

According to this 1/15/21 DOJ memo, 18,112 inmates were placed on home confinement (out of a total BOP population of approximately 150,000) as per the CARES Act emergency authority granted to BOP.  DOJ estimates 40% of those home confinement transfers do not meet 3624(c)(2) eligibility and would not be entitled to such were it not for the emergency authority.  The question now is what occurs when the emergency authority under CARES Act section 12003(b)(2) expires?  Which will have “important practical consequences” per the AG’s 1/15/21 memorandum (w/regards to any further defined authority to keep these individuals in a home confinement setting) and which now could be withdrawn in terms of authoritative provision. Careful “individualized assessments” and awareness of “vulnerable inmates” at institutions with “significant infection rates” – and considering “Center for Disease Control (CDC) established risk factors” applied – will ideally still allow for continuing flexibility and “discretionary authority” by BOP. DOJ clearly notes the ‘temporary’ authority of section 12003(b)(2), the requirements of 3624(c)(2), and the confines of 3621(a) and (b) – but also seems to realistically examine the possibilities under continuing circumstances (additionally citing Court cases that may apply) and as this new year is upon us, openly discusses what lay ahead and how it may be handled.

It all creates serious pause for concern as this looms at a crossroads and could be devastating for those who’ve received emergency home confinement due to Covid-19 risks – and now a very negative possibility of being sent back to an environment of still persistent great risk. Those presently granted this home confinement status are of little threat to public safety, but at high risk and threat of COVID-19 complications (many older in age with more vulnerable health conditions compared to other inmates) and it’s difficult to fathom any urgent public safety reasoning to send these individuals back to a prison environment when a ‘post-pandemic’ consensus remains unconfirmed and unseen on the horizon. Justice Advocacy Group will continue monitoring this, while advocating for compassionate and preventative resolutions and keeping clients fully informed of current DOJ/BOP policy and what possibly to expect.

Department of Justice Office of Legal Counsel Press Release (1/15/21)

‘Home Confinement of Federal Prisoners After the Covid-19 Emergency’ – DOJ Issued Memorandum, Deputy Assistant Attorney General, 1/15/21