We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THIS IS KIND OF TROUBLING

At a hearing on an inmate’s motion for compassionate release last August, Dept of Justice attorney Michael P. McCarthy made a chilling statement about the Bureau of Prisons’ CARES Act home confinement program: “The defendant is being re-evaluated once he crosses that (50%) threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP’s program, it’s a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over…”

Writing in Forbes magazine last week, Walter Pavlo said, “While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison … or they could be asked to be immunized in order to return …. or the inmate could refuse immunization …. or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.”

Pavlo noted that FAMM president Kevin Ring told him a White House source said a return of home confinement people to prison after the pandemic ends – whenever that is – “will NOT be happening.” But White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.”

The HEROES Act stands no chance of passage in the Senate.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last week, “Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.”

Forbes, US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once “Pandemic Is Declared Over” (Oct 15)

Sec 191102(f), HEROES Act, HR 6800

Sentencing Law and Policy, Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends? (Oct 16)

– Thomas L. Root