We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BUREAU OF PRISONS MUDDIES THE WATER ON CARES ACT PRISONERS REMAINING AT HOME
A BOP letter responding to a request from Rep. Sheila Jackson Lee (D-Texas) last week has renewed concern that CARES Act home confinees aren’t out of the woods yet.
You may recall that the CARES Act, gave BOP the authority to send medically vulnerable prisoners to home confinement because of COVID. Since CARES passed in March 2020, the BOP has sent about 9,000 prisoners home, and of those – according to the BOP – only three have been returned to prison for committing new crimes.
However, despite the success of the program, the Department of Justice Office of Legal Counsel issued an opinion in the dying throes of the Trump Administration that when the pandemic ended, all of those folks – who had reconnected with families, gotten jobs, and generally reacclimated to society – would have to go back to prison. There was near-universal condemnation of the opinion, but last July, the newly-installed Biden people at DOJ offered as the Trumpian opinion was probably right.
Then, in December (with the President looking for some kind of criminal justice “win” to placate his progressives), CARES Act people rejoiced when the OLC reversed the January 2021 opinion. In fact, the jubilation was so great that none of the celebrants seemed to notice that the BOP had sent a memorandum to OLC a few days before saying that if return to prison was not mandatory, the agency planned to develop a plan to evaluate “which offenders should be returned to secure custody.
“Which offenders should be returned” is one of those compound statements, necessarily assuming that some of the CARES Act people should be returned. Some people are now taking note of just how ominous the statement is, and are asking what the BOP means by it.
“Sentence length is likely to be a significant factor,” the memo from BOP’s Office of General Counsel said, “as the more time that remains will provide the agency a more meaningful opportunity to provide programming and services to the offender in a secure facility. The nature of the sentence imposed, the interests of the prosecuting U.S. Attorneys’ Office, the potential impact on any victims or witnesses, and deterrence are other potential factors for the criteria BOP would develop. It is likely that inmates that have longer terms remaining would be returned to secure custody, while those with shorter terms left who are doing well in their current placement would be allowed to remain there, subject to the supervisory conditions described above.”
Asked by two dozen other members of Congress to clarify, the BOP last week said it was preparing regulations that would be adopted “at the appropriate time.” Until then, the letter said, “we cannot speak to specifics.”
When he appeared before the House Subcommittee on Crime, Terrorism and Homeland Security two weeks ago, BOP Director Michael Carvajal said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”
Right, Mike.
KXAN-TV, What will happen to inmates released under CARES Act? Prison officials vague (February 8, 2022)
BOP, Memo on CARES Act Return Authority (December 10, 2022)
BOP, Letter to Rep. Bonnie Watson Coleman (February 7, 2022)
– Thomas L. Root