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BOP ISSUES NEW HOME CONFINEMENT PROGRAM STATEMENT
The BOP finally and officially has directed its staff to issue maximum home confinement (10% of sentence up to a max of 6 months, under 18 USC 3624[c][2]). This, of course, was something the BOP was told to do almost 16 months ago by the First Step Act.
Section 602 of the Act amended 18 USC 3624(c)(2) – which authorizes home confinement for prisoners at the end of their sentences for a period not to exceed the lesser of 10% of their sentences or 6 months – to add that “the Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”
The need to add the provision is inexplicable. Home confinement, overseen by the U.S. Probation Office for the BOP, costs about $8.00 a day, compared with imprisonment ($102.60 a day) or halfway house ($94.50 a day). One would think that home confinement would be the first option a BOP case manager would be directed to consider, given the BOP’s chronic shortage of budget and personnel. It’s as close to a win-win as you can get.
But one would be wrong. The BOP has always been focused on halfway house, with the halfway houses then moving its inmates to home confinement as they got to the 10%/six-month eligibility period.
Even after passage of the Act, the BOP used the delay in adoption of the PATTERN risk and needs assessment protocol as a basis for not maximizing home confinement. After all, the argument went, no one knows if someone falls into the “lower risk levels and lower needs” category without a PATTERN analysis.
Now that PATTERN is adopted, the BOP is out of excuses.
The April 3rd directive says the BOP interprets Section 602 “to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates.
Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”
Of course, the BOP’s adherence to First Step’s directive, like the rest of 18 USC § 3624, is exempted from judicial review by 18 USC § 3625. So there is no policing mechanism other than Congressional oversight to ensure that the BOP does what is undeniably in the agency’s own best interest.
Operations Memorandum 001-2020, Home Confinement Under the First Step Act (Apr. 3, 2020)
– Thomas L. Root