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ARE WE STRAIGHT ON THIS?

Seems like it was only a few days ago that BOP staffers were wandering through quarantine units, telling inmates who had been told that they were a few days from leaving to do the rest of their sentences in home confinement that, “oops, guess we’re wrong, you haven’t done 50% of your sentence yet, so you’re going nowhere.”

The sudden flip-flop in policy, engrafting a new restriction to the criteria for CARES Act home confinement, was cited last Monday in a filing in a Southern District of New York compassionate leave proceeding. The U.S. Attorney, having told the court a few days before that the defendant, Lewis Stahl, was eligible for CARES Act placement, withdrew the advice, telling the court that a new Dept. of Justice directive to the BOP prohibited home confinement placement to anyone who had not served at least 50% of his or her sentence.

Judge Ronnie Abrams was not amused. He promptly entered an order:

The Court is in receipt of the Government’s letter indicating that, in light of “new guidance” just issued to the Bureau of Prisons (BOP) by the Department of Justice (DOJ), the BOP now anticipates that Mr. Stahl is no longer eligible for home confinement or a furlough. Given the fact that the Government previously informed the Court that the BOP had already approved Mr. Stahl’s request for home confinement, and the U.S. Probation Offices in both the Southern District of New York and the Southern District of Florida had already approved his relocation request, the Government is hereby directed to provide the Court with an explanation from the BOP, including by way of affidavit from the appropriate representative, as to how the new DOJ guidance can affect these prior decisions. The Government shall do so no later than 5:00 p.m. on Wednesday, April 22, 2020. The Government shall also file a copy of the new DOJ guidance on the docket by that time. If it still does not have a copy of the new DOJ guidance by 5:00 p.m. on April 22nd, it shall provide the Court with additional details about the guidance including when it went into effect and who it applies to, as well as when it will be submitted to the Court.

On Wednesday, a BOP employee at FMC Devens echoed the government’s claim that an inmate must have served 50% or more of his or her sentence in order to qualify for home confinement placement under the CARES Act, in a declaration filed by the government in a Massachusetts case seeking an injunction to release inmates from the Federal Medical Center due to COVID-19.

The government did not get around to responding to Judge Abrams until late yesterday. Before that, the Wall Street Journal reported in the morning that a DOJ spokesman had said on Wednesday “that federal prison officials could consider inmates for early release even if they haven’t yet served half of their sentences, clarifying a shifting policy that has sown confusion across the nation’s prisons and courts in recent days.”

The Journal reported that “Dozens of inmates who had been granted early release as part of an effort to stem the spread of the coronavirus were told this week they hadn’t served enough time to qualify, according to prisoners and court filings. Inmates, prosecutors and federal judges demanded prison officials explain their rules and criteria for releasing inmates during the pandemic.

The DOJ spokesman reportedly said the BOP “intends to expeditiously transfer all inmates to home confinement who were previously referred” for placement, “as long as such transfers aren’t forbidden by law or criteria set forth by Attorney General William Barr. More prisoners are approved for home confinement every day, the spokesman said.”

OK, you have it so far. The 50% standard did not apply, then it did apply, and now it does not apply again.

Then, last night at 5 pm, the U.S. Attorney in the New York case filed a rambling, boilerplate-laden declaration of an FCI Miami associate warden that nowhere directly answered Judge Abrams’ questions. But it did provide this interesting explanation of the BOP home confinement criteria:

[T]he BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release plan; verifying that the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer…

[I]n order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who have served a certain portion of their sentences, or who have only a relatively short amount of time remaining in those sentences. While these priority factors are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, BOP is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise prioritize consideration.

It is now crystal clear: the 50% standard did not apply until last Monday, at which time it did apply until Wednesday, after which time it did not apply until yesterday, at which time it sort of applies (50% plus people are “prioritized,” whatever that means to the BOP).

At least all of that is resolved.

The Wall Street Journal, Confusion Hampers Coronavirus-Driven Inmate Releases (Apr. 23)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Declaration attached to letter filed by U.S. Attorney (April 23, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass.), Declaration attached to Respondents’ Omnibus Response, Dkt.32-2 (filed Apr. 22, 2020)

– Thomas L. Root