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

CONNECTICUT DISTRICT COURT FINDS HOME CONFINEMENT IS A PROTECTED LIBERTY INTEREST

I reported May 9 on a habeas corpus action in Connecticut U.S. District Court that claimed that the petitioners had had their CARES Act home confinement revoked without due process. A few weeks ago (while I was out, but I don’t apologize for a vacation in August), the Court decided that the petitioner had a liberty interest in her home confinement and that her revocation had violated her due process rights.

The Court ruled that before home confinement is revoked, a prisoner is entitled to the two-step process described by the Supreme Court in Morrissey v, Brewer, 408 US 471. That 1972 decision required a preliminary hearing to determine whether there is probable cause to justify the inmate’s detention before hearing made by a factfinder uninvolved in starting the revocation process. The inmate must be given notice of the hearing and the violation that is being alleged, and he or she should have the chance to cross-examine adverse witnesses and present evidence. Any adverse decision should explain the reasons for the revocation.

If probable cause is found for detention, the Court said, a full revocation hearing must still be conducted before the inmate’s home confinement is revoked. That hearing requires written notice of the violations, disclosure of evidence, a chance for the accused to be heard in person and to present witnesses and evidence, the right to cross-examine adverse witnesses, and a written opinion issued by a “neutral and detached” hearing body. The burden of proof by a preponderance lies with the government.

Coincidentally, Davina Chen, National Sentencing Resource Counsel for the Federal Public Defenders, sent a memo just a few days before the Tompkins decision, noting a July 22 USA Today article on CARES Act revocations. She warned:

I am beginning to hear an uptick of reports of people being remanded for suspect reasons or no reason at all… What we have experienced so far is that early attorney involvement is crucial and can, in some cases, prevent clients from being returned to prison – some of them for decades… [W]e believe that our clients have a Fifth Amendment right to a hearing before a neutral and detached decisionmaker, an opportunity to be heard both on whether they have violated the conditions of their home confinement and why return to prison is not warranted, and in some instances counsel. Maybe you won’t get that ¬– but maybe you can also convince BOP not to tear your client away from the community!

Tompkins v. Pullen, Case No 3:22-CV-00339, 2022 US Dist LEXIS 141271 (D.Conn, August 9, 2022)

USA Today, They were released from prison because of COVID-19. Their freedom didn’t last long. (July 22, 2022)

Federal Defenders Organization memorandum, CARES Act Home Confinement Revocations (August 3, 2022)

– Thomas L. Root