See, e.g., Section 12003(b)(2) ends with the phrase as the Director determines appropriate, which explicitly delegates authority to the Director to determine the appropriate amount to lengthen a period of home confinement. Previous research has similarly shown that inmates can maintain accountability in home confinement programs. as part of your comment, but do not want it to be posted online, you must include the phrase PERSONAL IDENTIFYING INFORMATION in the first paragraph of your comment. It was previously unclear whether inmates would have to return to prison when the pandemic ends. Email. Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses. 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] See Home-Confinement Placements, In March 2020, former President Trump signed the CARES Act into law in response to the pandemic, which, among other things, expanded the Bureau of Prison's ability to place more inmates on home . 21. Although COVID-19 vaccines are widely available and effective at preventing infection, serious illness, and death, not all incarcerated persons will elect to receive COVID-19 vaccinations,[65] Memorandum for the BOP Director from the Attorney General, Copenhaver, The massive CARES ACT granted then-Attorney General Bill Barr the option to broaden the use of the home confinement program, which had previously only been allowed to be used at the very end of a . In the SCA, Congress increased the Bureau's discretion to place inmates in home confinement in two ways. 12003(b)(2). As of end of August of 2022, more than 11,000 federal (at risk) inmates were released to home confinement through the CARES Act, only 17 of them committed new crimes while 442 were returned to prison for violating their home confinement conditions. [58] provide legal notice to the public or judicial notice to the courts. Pub. 49. regulations.gov available at: http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf. The Bureau has realized significant cost savings by placing eligible inmates in home confinement under the CARES Act relative to housing those inmates in secure facilities, and it expects those cost savings to continue for inmates who remain in home confinement under the CARES Act following the end of the covered emergency period. U.S. Centers for Disease Control and Prevention, Basics of COVID-19 (updated Nov. 4, 2021), [7], The United States Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services has recognized that the Chevron, Under id. See See id. Start Printed Page 36794 Thus, in 18 U.S.C. 18 U.S.C. 41. Chevron [10] 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. As the OLC opinion explains, the Department's reading of the CARES Act is grounded in the language of the relevant provision, section 12003(b)(2). (last visited Apr. paragraph. 45 Op. 101, 132 Stat. See, e.g., [30] 46. at 658 (The purposes of the Act are . 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. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). (3) This section concerns only inmates placed in home confinement under the CARES Act. individualized determinations about the conditions of confinement for inmates placed in home confinement under the CARES Act, as it does with respect to all prisoners,[27] (last visited Apr. In terms of law, home confinement is a standard practice in federal prisons that predates the COVID-19 pandemic. 101, 132 Stat. This section differs from section 12003(b)(2) in important ways. sec. 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.). 65. 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 . See They are true success stories. 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 *4-5. at sec. [35] 3624(c)(2). Letter for Attorney General Barr & Director Carvajal from Senator Richard J. Durbin see supra These include increasing the Bureau's ability to control inmate populations in BOP facilities and in the community, allowing it to be responsive to changed circumstances; empowering the Bureau to make individualized assessments as to whether inmates placed in home confinement should remain in home confinement after the end of the covered emergency period, taking into account, for example, penological goals and the benefits associated with an inmate establishing family connections and finding employment opportunities in the community; and allowing the Bureau to weigh the ongoing risk of new COVID-19 outbreaks in BOP facilities against the benefit of returning any inmate to secure custody. Because the affected inmates are currently serving their sentences in home confinement, there will be no new costs associated with this proposed rulemaking. Items To Bring For Your Stay. 58. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). But recognizing the impact that COVID-19 could have among the prison population, Congress also expanded the Bureau's home confinement authority last year when it passed the Coronavirus Aid, Relief, and Economic Security Act, better known as the CARES Act. Federal Register issue. 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 45 Op. 45 Op. 10. The virus spreads when an infected person breathes out droplets and particles, and another person breathes in air that contains these droplets and particles, or they land on another person's eyes, nose, or mouth. 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. 5. and services, go to 18. The Act's name is the Coronavirus Aid, Relief, and Economic Security Act. 3, 2020), id. Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety This milestone number also includes inmates eligible for Home Confinement under the emergency authority exercised by the Attorney General on April 3, 2020 in accordance with the CARES Act. This determination was based on a culmination . This is because on January 15, 2021, just five days before President Trump left office, the Justice Department's Office of Legal Counsel issued a memo declaring that people transferred to home confinement under the CARES Act would be sent back to prison once the national COVID emergency ended. 6. 26, 2022). The vast majority of inmates on CARES Act home confinement have complied with the terms of the program and have been successfully serving their sentences in the community. For all of these reasons, and for the additional reasons the operative OLC opinion explains in more detail, the Department believes that the best reading of the CARES Act is that an inmate whose period of home confinement the Director properly lengthened during the covered emergency period may remain in home confinement, at the Director's discretion, including after the covered emergency period ends. That provision also directs the Bureau to place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted to the extent practicable. Second, Congress created a pilot program in the Second Chance Act of 2007 (SCA), which it reauthorized and modified in the First Step Act of 2018 (FSA), authorizing the Attorney General to place eligible elderly and terminally ill offenders in home confinement after they have served two-thirds of their term of imprisonment. 751. [59] include documents scheduled for later issues, at the request 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. en masse et al., Association Between Prison Crowding and COVID-19 Incidence Rates in Massachusetts Prisons, April 2020-January 2021, __, at *2, *5-7. A 2019 study found that Black women comprise 42 percent of women in solitary detention yet only 21.5 percent of all female prisoners. Start Printed Page 36795 See, e.g., 101(a), 132 Stat. Rather than being kept behind bars, people spend the time confined in their . 29. 28, 2022). of the issuing agency. 03/03/2023, 268 60541. COVID-19 most often causes respiratory symptoms, but can also attack other parts of the body. For example, although the authority to provide loans under the CARES Act's Paycheck Protection Program was limited, the loans granted pursuant to that authority will mature over time.[39]. The President of the United States issues other types of documents, including but not limited to; memoranda, notices, determinations, letters, messages, and orders. If you want to submit personal identifying information (such as your name, address, etc.) The Home Confinement Clearinghouse will match . (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). Congress further expanded the Bureau's use of home confinement through the FSA in three contexts. L. 115-391, sec. (last visited Apr. This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). It was signed into law in March 2020. 20. 3632(d); 301, 18 U.S.C. CDC, Considerations for Modifying COVID-19 Prevention Measures in Correctional and Detention Facilities (June 22, 2021), available at 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 Federal Register provide legal notice to the public and judicial notice For complete information about, and access to, our official publications 13, 2021), 18 U.S.C. 23, 2020), While every effort has been made to ensure that 3621(a), (b). et al. See id. 26, 2022). 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. Courts have recognized the Bureau's authority to administer inmates' sentences,[54] See, e.g., 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). at 516. Federal Register. COVID-19 pandemic presents unique challenges for correctional facilities, such as those the Bureau manages. Individuals in close contact with an infected persongenerally less than 6 feet apartare most likely to get infected. 45. Policy 315 (2016). available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html CARES Act sec. See In response to COVID-19, the BOP instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention . 26, 2020), That section makes a single change to the Bureau's home confinement authorityto allow the Director to lengthen the duration for which prisoners can be placed in home confinement relative to the maximum time periods set forth in 18 U.S.C. 4. Rep. No. Comments are due on or before July 21, 2022. The Department's interpretation is also consistent with congressional action demonstrating an interest in increasing the Bureau's use of home confinement. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law March 27, 2020, provides over $2 trillion of economic relief to workers, families, small businesses, industry sectors, and other levels of government that have been hit hard by the public health crisis created by the Coronavirus Disease 2019 (COVID-19). see also 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. 36. [55] It quickly became one of the worst hit federal prisons in the country with a massive COVID-19 outbreak. 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. So the law increased the term of home confinement available to those held by BOP under 18 U.S.C. Re: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19, 25. available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html 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. See If you want to inspect the agency's public docket file in person by appointment, please see the Liesl M. Hagan 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]. Congress demonstrated support for this type of logical progression toward reentry in the First Step Act. [4] That guidance also instructed that pregnant inmates should be considered for placement in a community program, to include home confinement. by the Foreign Assets Control Office on 4001(b)(1), to codify the Director's discretion to allow inmates placed in home confinement pursuant to the CARES Act to remain in home confinement after the covered emergency period expires. 60. First, 18 U.S.C. In what appears to be one of the most successful re-entry programs in federal prison history , of the 11,000+ low-risk federal inmates transferred to home confinement under this new provision, only 17 committed a . [23] 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). The updated memo is here, and also included below in additional resources. This table of contents is a navigational tool, processed from the [25] 5210-13, 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.