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Does Backlash on CARES Act Clemency Threatens Further Action? – Update for December 16, 2024

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

IS THE BIDEN COMMUTATION WAVE BREAKING ON POLITICAL SHOALS?

As I reported last Thursday, President Biden granted clemency to nearly 1,500 Americans on CARES Act home confinement, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

Biden has promised additional clemencies, and there is no shortage of candidates. But if he anticipated the congratulations of a grateful nation, hw ia probably disappointed.

clemencypitch180716In Pennsylvania, there’s a firestorm over one of those receiving commutation. Michael Conahan was convicted of funneling juvenile defendants to two private, for-profit detention centers in exchange for $2.1 million in kickbacks, a scandal known as “Kids-for-Cash.” That is, he took bribes to send kids to for-profit juvenile prisons with sentences disproportionate to their crimes He pleaded guilty to racketeering conspiracy and was sentenced in 2011 to 17½ years in prison. He was released to home confinement in Florida under the CARES Act in June 2020.

Sandy Fonzo, a mother who blames her son’s suicide on the emotional toll that being wrongly placed in detention exacted, said, “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”

(Conahan was not pardoned. Rather, his sentence was commuted, but his conviction remains intact).

The Pennsylvania governor, Josh Shapiro, also condemned Biden’s decision, telling reporters that his fellow Democrat “got it absolutely wrong”, the Pennsylvania Capital-Star reported.

The Washington Post said:

For Biden, this is another unforced error. More broadly, it raises fresh questions about presidential clemency going too far and whether it should exist at all. There was outrage when former president Donald Trump pardoned allies such as Stephen K. Bannon, Paul Manafort and Charles Kushner, the father of his son-in-law. And there was outrage over Biden pardoning his son Hunter. It could all get even more outrageous if Biden grants preemptive pardons or Trump pardons the January 6 rioters.

Such dubious grants of presidential mercy reinforce a belief that America has a two-tiered justice system where the wealthy and connected fare much better than everyone else — and certainly better than the young people who came before Judges Conahan and Ciavarella in Luzerne County.

takethemoney191015Meanwhile, Biden has been blasted for commuting the sentence of an Illinois CARES Act confinee. A former city official in Illinois who orchestrated the largest municipal embezzlement in state history. Rita Crundwell—with four years to go on a 235-month sentence for fraud, is among the people granted clemency. Crundwell, who was taken out of Dixon, Illinois, city hall in handcuffs back in 2012, stole something like $53 million in city funds during her tenure as city comptroller.. She used the funds to pay for a lavish lifestyle that included raising champion quarter horses and buying a $2 million tour bus, jewels, furs, multiple homes and other trappings. All the while, the City of Dixon struggled to pay for infrastructure and other projects.

Meera Sachdeva, a former Mississippi oncologist, received clemency on her 20-year sentence handed down in 2012 for defrauding Medicare by providing diluted chemotherapy drugs and using old needles at her cancer clinic. Her clinic was said to be so unsanitary that multiple patients were admitted to local hospitals with infections after being treated there. One of Sachdeva’s patients claimed to have contracted HIV because of old needles.

The Washington Free Beacon said in a review of those who received clemency that “many of the recipients were serving sentences for serious crimes.”

Advocacy groups have been calling for a broad range of additional clemency grants, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

Rachel Barkow, a New York University law professor and expert on federal clemency, said during an Ohio State clemency conference that commuting the sentences of those on CARES Act home confinement is “low-hanging fruit” because they’re already out of prison.

Barkow expressed concern last Wednesday, the day before the clemency was announced, that CARES Act commutation would be the limit of Biden’s clemency actions. “I’m a little worried that he’s only going to do that and he’s going to try to make it out like that’s some big deal when that’s not a big deal at all. That’s not even the bare minimum,” she said. The hue and cry from both sides of the aisle—focusing on individual cases rather than the common-sense commutation of the entire cohort—could make Biden shy away from anything further.

clemency170206At the same time, the CARES Act clemency was unreasonably opaque, leaving out some people with perfect home confinement records and unremarkable crimes while including people whose offenses – like the kids-for-cash judge and the horse-breeding embezzler – whose commutations sparked predictable media anger. I am aware of at least three people – including a woman who was raped at FCI Dublin but is now on CARES Act home confinement – who were omitted from the list without explanation.

Nevertheless, Biden continues to come under intense pressure from a coalition of civil rights, criminal justice, and religious groups urging him to grant relief to several classes of federal offenders, including the 40 people on federal death row and nonviolent drug offenders.

Last week, faith leaders – including black pastors, Catholics, former corrections officials, civil rights advocates, and current and former prosecutors – called on Biden to commute all federal death row sentences before Trump, who supports capital punishment, takes office.

Others are calling for commutation of sentence for women who suffered sexual abuse at FCI Dublin. “We all just feel so passionately that if Biden can pardon his son, he can definitely grant clemency to survivors of this heinous abuse by federal government employees,” former Dublin prisoner Kendra Drysdale told The Guardian.

jan6riot241216Meanwhile, President-elect Trump told Time Magazine last week that he would offer clemency to most of the rioters who stormed the Capitol. “It’s going to start in the first hour,” he said. “Maybe the first nine minutes.” However, in a filing in a DC sentencing last week, the government warned that a “pardon would not unring the bell of conviction. In fact, quite the opposite. The defendant would first have to accept then pardon, which necessitates a confession of guilt.”

Harrisburg, WBRE-TV, ‘Kids for Cash’ victim reacts after Biden commutes sentence for Pennsylvania judge (December 13, 2024)

Sauk Local News Network, Biden commutes prison sentence of Rita Crundwell, former comptroller who embezzled $53M from city of Dixon (December 12, 2024)

Washington Free Beacon, Drug Lords, Ponzi Schemers, and Corrupt Officials: Meet Joe Biden’s Clemency Recipients (December 13, 2024)

Daily Beast, Mom’s Outrage Over Biden’s Presidential Clemency for Corrupt Kids-for-Cash Judge and Cohort (December 13, 2024)

Newsweek, She Stole Millions From Taxpayers to Buy Show Horses. Biden Set Her Free (December 13, 2024)

The Hill, Who are the people convicted in Capitol Riot Trump could pardon? (December 14, 2024)

Reason, Biden Issues More Pardons and Commutations Under Pressure From Criminal Justice Groups (December 12, 2024)

Newsweek, Could Joe Biden Pardon Everyone on Death Row? (December 10, 2024)

Guardian, US shuts down prisons amid scrutiny over sexual abuse and crisis of suicides (December 5, 2024)

– Thomas L. Root

Biden Commutes CARES Act Home Confinement Sentences – Update for December 12, 2024

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

BIDEN COMMUTATION WAVE BEGINNING?

CARESEnd230131Early this morning, President Biden announced that he is granting clemency to nearly 1,500 Americans – the most ever in a single day – sent to home confinement under the CARES Act, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

He is also pardoning 39 people convicted of non-violent crimes, whose names are not yet available. The White House said, “These actions represent the largest single-day grant of clemency in modern history.”

Biden said in a separate statement,

I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer. I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices. These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead. My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

Associated Press reported that the second largest single-day act of clemency was by Barack Obama, with 330, shortly before leaving office in 2017.

earlychristmas241212

Back in the final hours of the first Trump Administration, the Department of Justice Office of Legal Counsel issued an opinion that those persons serving sentences on CARES Act home confinement  would be required to return to secure custody once the national COVID emergency ended. The Justice Department subsequently withdrew that opinion, but with the election of President Trump, there has been substantial speculation – such as this, this and this –that the 2021 opinion could be once again adopted along with calls for Biden to preemptively block such a step with a blanket commutation.

Advocacy groups have been calling for a broad range of pardons, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

When Biden issued the blanket pardon in October 2022 for people convicted of marijuana possession on federal property, those benefitting were required to make individual applications to the Dept of Justice for the pardon specific to their cases. As of 6 a.m., details of what, if any, steps CARES Act recipients may have to take to obtain their personal commutations is not yet known.

White House, Release on CARES Act Clemency (December 12, 2024)

White House, Statement on CARES Act Clemency (December 12, 2024)

Associated Press, Biden commutes roughly 1,500 sentences and pardons 39 people in biggest single-day act of clemency (December 12, 2024)

Wall Street Journal, Biden to Commute Sentences of Around 1,500 People (December 12, 2024)

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Dept. of Justice, Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency  (December 21, 2021)

Hurwitz, Hugh, Biden’s easy case for clemency: prisoners in home confinement (The Hill, November 26, 2024)

Pavlo, Walter, The Bureau of Prisons Under A Trump Administration (Forbes, November 7, 2024)

Ward, Myah, Clemency groups use Hunter pardon to pressure Biden (Politico, December 5, 2024)

– Thomas L. Root

Demagoguing Home Confinement – Update for November 16, 2023

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

SENATE REPUBLICANS SEEK TO CORRAL CARES ACT TERRORISTS

Just when CARES Act prisoners still serving home confinement thought it was safe for them to believe they would remain at home, Sen. Marsha Blackburn (R–TN) has introduced S.J.Res. 47, legislation that would reverse a DOJ rule allowing prisoners on CARES Act home confinement to complete their sentences at home.

caresbear231116On October 30, Blackburn and 26 co-sponsoring Senators introduced the bill under the Congressional Review Act, 5 USC Ch. 8, which would overturn a Justice Department rule allowing some federal offenders to remain under house arrest after the end of the government’s COVID-19 emergency declaration.

“While there are certainly plenty of legitimate issues with the BOP that merit senators focusing oversight on the Bureau, CARES Act home confinement is an example of a program that is working—rehabilitating people while holding them accountable, all while driving down costs and maintaining community safety,” Kevin Ring, vice president of criminal justice advocacy at Arnold Ventures, a private philanthropy group, said.

cotton171226Sen. Tom Cotton (R-AR) – whose opposition to the First Step Act was responsible for getting those prisoners with 18 USC § 924(c) convictions excluded from obtaining FSA credits for successfully completing recidivism reduction programs written into the law –declared that extending CARES Act home confinement (especially now that every single federal inmate has been vaccinated or offered the vaccine for COVID-19) “betrays victims and law-enforcement agencies that trusted the federal government to keep convicted criminals away from the neighborhoods that the offenders once terrorized.”

There’s nothing quite as easy to demagogue as crime and punishment.

Never mind that the Bureau of Prisons has refused CARES Act home confinement to anyone convicted of sex crimes, terrorism, violent offenses, or even those who had a violent disciplinary report while in prison. CARES Act home confinees had to have low or minimum security status and be at low or minimum risk of recidivism under the Dept. of Justice PATTERN scoring system.

The Congressional Review Act, which was passed 27 years ago, creates a process for Congress to overturn federal agency rules. In 2017, a Republican-controlled Congress used the CRA to invalidate dozens of Obama-era federal rules. Any member of Congress can introduce a CRA joint resolution of disapproval, which is referred to the relevant Senate or House committee. A CRA resolution must be passed by a majority in both the House and Senate and then signed by the president. If the President vetoes the CRA resolution, Congress can override the veto with a two-thirds majority in both houses.

flyelephantgun231116Given that the Biden Administration pushed the new rule and the Senate is controlled by Democrats, passage of S.J.Res. 47 is doubtful. If it would pass both houses, but Biden vetoes it, there is no chance two-thirds of Congress would override it.

Last week, BOP Director Colette Peters told a House subcommittee that “as of August 31, 2023… less than 0.05% of people [on home confinement] have been returned to custody for committing new crimes.” Given that statistic, S.J.Res. 47 seems a lot like shooting a fly with an elephant gun.

S.J.Res. 47, Congressional disapproval of the rule submitted by the Dept of Justice relating to CARES Act (October 30, 2023)

Reason, Senate Resolution Would Send Federal Offenders Back to Prison 3 Years After Being Released to Home Confinement (November  6, 2023)

National Health Law Program, Congressional Review Act (October 2020)

– Thomas L. Root

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 2023

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

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

Congress Moves Up End of CARES Act – Update for April 3, 2023

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

CARES ACT END NEARER THAN WE THOUGHT

Under Congressional pressure, in late January, President Joe Biden announced he would end the national COVID emergency on May 11th. Last week, the Senate made it clear to Biden that the emergency will end when Congress – not Joe – says it does.

endisnear230403In February, the House voted 229-197 to terminate the COVID-19 pandemic national emergency order immediately. Last week, the Senate agreed by a 68-23 vote that the emergency, which Biden extended in January, should end.

An Administration spokesman told Roll Call that “the President strongly opposes H.J. Res. 7, and the administration is planning to wind down the COVID national emergency and public health emergency on May 11….” However, “if this bill comes to [Biden’s] desk… he will sign it.”

Had the emergency expired on May 11, the Bureau of Prisons’ CARES Act authority to place prisoners in home confinement would have ended 30 days later, or on June 10. But with the emergency to expire as soon as today, BOP home confinement authority could end as early as Wednesday, May 3.

BOP CARES Act authority lasts during the “covered emergency period,” which the Act defines as “the period beginning on the date on which the President declared a national emergency under the National Emergencies Act… and ending on the date that is 30 days after the date on which the national emergency declaration terminates.”

The BOP previously promised not to slow CARES Act home confinement placement as the covered emergency period expired. However, there seems to be a marked increase in unexplained denials by Regional Residential Managers, many apparently resulting from the BOP’s current policy of soliciting the opinion of the same US Attorney responsible for convicting the prisoner to begin with.

CARESEnd230131Writing in Forbes, Walter Pavlo said a prisoner told him that the BOP “is responding to inmates completely contrary to how they’ve responded to you.” Pavlo notes that “for all of the CARES Act successes, a review of the program, which will ultimately occur, will assess the equity with which the BOP used its authority. Many prisoners who were approved for CARES Act have told me that they received a denial but no real explanation for that denial. Others, with the support of a case manager and warden, were denied by Central Office, most likely from interference from prosecutors who have a renewed interest in keeping prisoners in institutions for as long as possible.”

The time for a post-mortem will come soon enough, perhaps as soon as 30 days from now. For now, Congress has succeeded in advancing the timetable by maybe 40 days.

The New Testament quotes Jesus as telling Judas, “What thou doest, do quickly.”  Good advice for anyone still in the CARES Act pipeline.

Roll Call, Senate votes to overturn COVID-19 national emergency order (March 29, 2023)

The Hill, Biden declines to veto GOP-led measure to end COVID-19 emergency March 29, 2023)

Forbes, End Of CARES Act Home Confinement Is Near For Many Federal Prisoners (March 29, 2023)

– Thomas L. Root

With CARES Act Almost Over, BOP Streamlines Process – Update for March 20, 2023

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

BOP STEPS ON THE GAS IN CARES ACT’S FINAL DAYS

CARESEnd230131President Biden will end the COVID-19 national emergency on May 11, 2023. The immediate effect for the Federal Bureau of Prisons is that the agency will lose its authorization to place prisoners in extended Coronavirus Aid, Relief, and Economic Security (“CARES“) Act,  home confinement 30 days later.

Among the myriad of federal responses mandated by the bloated CARES Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the BOP was given authority in § 12003(b)(2) to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

As the BOP’s CARES Act authority sunsets, some have speculated the Bureau would slow the transfer of prisoners to home confinement. But writing in Forbes last week, Walter Pavlo reported that the BOP’s Office of Public Affairs told him, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.” Pavlo called that “welcome news to prisoners who meet the eligibility requirements for CARES Act placement.”

caresbear230124Hard evidence the BOP is pushing CARES Act release arrived last week with the report of an internal BOP memorandum dated March 9 that relaxed prior BOP policy on CARES Act approvals. The BOP has established criteria for CARES Act placement, including serving a minimum portion of one’s sentence, prior disciplinary reports, and history of violence. When a prisoner did not meet all of the conditions, he or she could still be recommended by the institution for home confinement, but the referral had to be approved by a BOP Central Office Home Confinement Committee.

One of the HCC’s practices was to solicit comment from the US Attorney’s Office that had prosecuted the inmate. Pavlo noted that “in many cases, prosecutors did oppose rather than just defer to the BOP, who know best how to house prisoners in its care.”

Up to now, those prisoners denied CARES Act placement by the HCC have been required to go back to Central Office later even when they met all CARES Act criteria. Pavlo said, “This usually led to the same opposition and denial.” But the March 9 memo ends the endless cycle of HCC approval. It says, “Effective with the issuance of this memo, referrals for home confinement placement no longer need to be submitted to the HCC if the inmate now meets all established criteria.” Now, if the inmate meets all BOP criteria, referrals for CARES Act will now be sent directly to the appropriate Residential Reentry Management Office . The RRM “will retain the final authority based on the referral and availability of community resources,” the memo says.

noplacelikehome200518Pavlo writes that “[m]any are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.” Unfortunately, the hopes of those who are looking for a magical extension are misplaced. Because the BOP’s authority to place people in home confinement is limited by statute, any extension of a CARES Act-style home confinement will have to come from Congress.

Writing last week in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman said, “Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement.”

BOP, Home Confinement Criteria and Guidance (Addendum) (March 9, 2023)

Forbes, Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind (March 14, 2023)

Sentencing Law and Policy, With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? (March 15, 2023)

– Thomas L. Root

Biden Pulls the Plug on CARES Act – Update for January 31, 2023

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CARES ACT HOME PLACEMENT TO END JUNE 10 JUST AS NEW BOP MEMO SURFACES

CARES Act To Expire:  President Joe Biden informed Congress yesterday that he will end the twin national emergencies declared by President Donald Trump 35 months ago.

pullingplug230131The end of the national emergency and the separate public health emergency will restructure federal coronavirus response, treating COVID-19 as an endemic threat to public health that can be managed through agencies’ normal authorities.

Biden’s announcement came in a statement opposing a House of Representatives resolution to be voted on later this week (H.J.Res. 7) to bring the national emergency to an end. Congress has the power to end a National Emergencies Act emergency declaration at any time by joint resolution under 50 USC § 1622(a)(1).

A similar resolution sailed through the Senate last November, suggesting that this one could have done the same, embarrassing the Administration. Biden’s announcement just about assures that the Congressional push against the national emergency will fizzle.

Among the myriad of federal responses mandated by the bloated Coronavirus Aid, Relief, and Economic Security (“CARES“) Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the Bureau of Prisons was given authority to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

home190109The BOP has placed 52,815 inmates, almost of third of its normal population, on home confinement since CARES passed. The agency has always pumped up the number by including people who would have been sent to home confinement at the conclusion of their sentence regardless of the CARES Act. Nevertheless, there are over 5,600 CARES Act home confines right now.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

So will the BOP continue CARES Act placement until then? It makes economic sense for an agency struggling with an employee shortage, especially where inmates with low-security risk and high maintenance costs (read “costly medical care”), to unload as many prisoners as it can. The BOP’s inmate load has increased since hitting a low in 2020, even before having to absorb some 14,000 federal prisoners from private prisons after Biden ended contracting with private prison operators in his first days as president.

welcomeback181003What will become of the 5,600 on home confinement now? The Administration has taken the position that those on CARES Act home confinement will not necessarily be ordered to return to prison. The BOP, in its typical ham-handed way, issued a memorandum in December 2021 saying it intended to develop a plan to evaluate “which offenders should be returned to secure custody.” It clarified that to say it would propose rules governing the factors to be evaluated in calling people back to prison, but the proposed rules have not yet been announced.

The Dept of Justice did not help matters. Last June, DOJ issued a Notice of Proposed Rulemaking, seeking public comment on a rule that delegated authority to the BOP to decide who would return and who would not. Those rules have not yet been finalized, but you can bet that they will be soon.

New  Memo Is Released:  Meanwhile, yesterday, in response to a Freedom of Information Act request, I received the memo issued last month that gave assistant US attorneys (AUSAs) a say in some CARES Act home confinement decisions. The memo, issued December 21 (not December 19, as a BOP administrative remedy response erroneously stated), “supersedes the Home Confinement memorandum dated April 13, 2021.” I have posted a copy of the memo.

One reference to AUSA approval relates to inmates referred for CARES Act home confinement who have 5 years or more remaining on their sentences. It provides that the BOP’s Residential Reentry Management Office – which manages inmates in halfway houses and on home confinement – will contact the AUSA’s office “in the respective Court of Jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among the factors used by the RRM Office in making a Home Confinement decision.”

fox230131The second is if the warden refers an inmate who does not fit the CARES Act criteria for placement. In that case, the referral is sent to the “Home Confinement Committee (HCC)… for further review.” The HCC will contact the AUSA’s office for input regarding the request, and any “input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement decision.”

Writing in Forbes last week, Walter Pavlo observed that “prosecutors have a role in court proceedings, such as when prisoners apply for compassionate release. In those instances, and based on our adversarial justice system, prosecutors rarely support compassionate release cases. However, those are court proceedings where prisoners, defendants, have an opportunity to support their position and them considered by a judge who makes a decision.”

His point is clear: the new CARES Act memo lets AUSAs dump on inmates without the prisoner knowing what was said, let alone having a chance to refute it. What is more, the BOP has issued no criterion to its staff on how to weigh what the AUSA says.

“To inject prosecutors into what is clearly a BOP decision is unfair,” a former federal prosecutor told Pavlo. “To inject the continued adversarial nature between inmates and prosecutors into what is clearly within the sole purview of a BOP decision can lead to unfair or skewed results.”

On March 26, 2020, and April 3, 2020, Attorney General William Barr set criteria for the BOP Director’s exercise of the power granted by the CARES Act to place inmates in home confinement. Pavlo points out that “nowhere in those memos does it state the role that federal prosecutors have in this process.”

AUSAs may have trouble squaring their complaints about inmates being sent to CARES Act home confinement with the government’s position in the Connecticut habeas corpus case, Tompkins v. Pullen, two months ago. There, the government argued that home confinement was nothing special and gave a prisoner no due process liberty interest.

At all times – whether on HC, at the RRC, or in secure custody… Petitioner has remained a “prisoner.” Although she was in a “community custody” status while designated to HC and supervised by the RRC, Petitioner remained a federal inmate and subject to redesignation to a secure facility if necessary to accommodate her security and programming needs… The halfway house is simply one of the facilities operated by the BOP. It is a different kind of imprisonment than maximum security, just as a supermax facility is different than a prison camp, but it is still imprisonment. The restrictions, although less than in some other facilities, remain onerous.

So CARES Act home confinement is a big deal that needs to be run past the AUSA, or it’s nothing different than any other designation decision. The BOP and AUSA may choose whichever argument is preferred at the time.CARESEnd230131

Unfortunately, it’s clear they only have to choose for the next 130 days. Then, while COVID-19 will still be with us, the CARES Act home confinement program is history.

Associated Press, President Biden to end COVID-19 emergencies on May 11 (January 31, 2023)

H.J.Res.7 Relating to a national emergency declared by the President on March 13, 2020 (January 9, 2023)

Bloomberg Law, BGOV Bill Summary: H. J. Res. 7, End Covid-19 National Emergency (January 27, 2023)

Bureau of Prisons, Home Confinement Criteria and Guidance (December  21, 2022)

Forbes, Federal Prosecutors Have Increased Role In CARES Act Home Confinement Transfers (January 24, 2023)

Attorney General, Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic (March 26, 2020)

Attorney General, Increasing Use of Home Confinement At Institutions Most Affected by COVID-19 (April 3, 2020)

Gvt Memo in Support, Motion to Dismiss (ECF 14-1), Tompkins v Pullen, Case 3:22-cv-00339 (DConn, filed April 13, 2022)

– Thomas L. Root

BOP Delegates CARES Act Home Confinement Decision to Prosecutor? – Update for January 26, 2023

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BOP ISSUES STEALTH CARES ACT MEMO GIVING THE US ATTORNEY A HECKLER’S VETO

Even if the CARES Act does not expire in two months, the BOP very quietly issued a memo last month that essentially gives the Assistant U.S. Attorney (AUSA) who prosecuted a prisoner being considered for CARES Act a heckler’s veto.

heckler230126A “heckler’s veto” is a situation in which a party who disagrees with a speaker’s message can unilaterally trigger events that result in the speaker being silenced. Three weeks ago, an inmate who met all of the BOP’s standards for CARES Act home confinement (BOP, April 22, 2020, and April 13, 2021, memos) was rejected for home confinement by his local BOP Residential Reentry Management office.

In a response to his administrative remedy, the BOP told the inmate that “the memorandum for Cares Act Home Confinement was recently updated… on December 19, 2022.” Under the new memo, if the CARES Act candidate has 60 months or more remaining on his sentence, “the Residential Re-entry Management office will contact the AUSA office in the respective court of jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among factors used by the RRM office in making a Home Confinement decision.”

henhouse180307The BOP has not suggested it has designated any standards for the AUSA “input.” Like a heckler’s veto, apparently the AUSA can shout down the CARES Act application without a reason, or at least without a reason that relates to the standards the BOP has already set out to qualify for CARES Act home confinement. And thus, the fox has been delegated authority to guard the henhouse.

This does pose a conundrum for the government, however.  Recall that in August, I reported on Tompkins v. Pullen, a case in which an inmate who was yanked back to prison from CARES Act home confinement argued her due process rights were violated. The government opposed the argument, of course, contending that home confinement was just another designation of an inmate to a facility under 18 USC § 3621, sort of an “FCI Home.” Home confinement was nothing special, the government argued, certainly nothing that came with due process rights.

If that’s so (and the court didn’t buy it), one has to wonder why the AUSA has been given a voice in the CARES Act decision, and why it would consider home confinement anything different than transfer from a medium to a low, hardly anything of interest to the prosecutor.

The BOP Public Affairs office declined to provide me with a copy of the memorandum. I have since requested it through a Freedom of Information Act request, for all the good that will do. Back in October 2017, I filed a BOP FOIA request for a report the BOP provided a congressional committee on pre-First Step Act compassionate release. The BOP filled the FOIA request in October 2022, just a week shy of five years after I filed it.

BOP, Home Confinement (April 13, 2021)

BOP, Home Confinement (April 22, 2020)

– Thomas L. Root

Are CARES Act’s Days Numbered? – Update for January 24, 2023

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

IS CARES ACT HOME CONFINEMENT ON ITS LAST LEGS?

When Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) nearly three years ago, it included an unprecedented home confinement program for federal prisoners that let the Bureau of Prisons designate prisoners to home confinement during the COVID national emergency.

caresbear230124President Trump declared a one-year national emergency because of COVID on March 13, 2020, under authority of the 46-year-old National Emergencies Act (“NEA”). Since then, President Biden has extended it twice, the last time being Feb 18, 2022, each time for one year. Unless Biden extends it again, the COVID national emergency will expire after Feb 28, 2023.

The CARES Act lets the BOP designate inmates to home confinement without regard for the 10%/6 month limitation set out in 18 USC 3624(c)(2) during the “covered emergency period,” which CARES defines as beginning on March 13, 2020, “and ending on the date that is 30 days after the date on which the national emergency declaration terminates.” If Biden does extend the COVID emergency for another year, the CARES Act placement will end on March 30, 2023.

On Jan 11, 2023, the Dept of Health and Human Services extended the COVID-19 public health emergency through at least April 11, 2023. The public health emergency is not the same as the NEA emergency. Politico reported two weeks ago that “senior Biden officials are targeting an end to the emergency designation for Covid as soon as the spring, after debating doing so last summer and taking a pass… The decision, which has not yet been finalized amid more immediate efforts to manage a recent spike in Covid cases, would trigger a complex restructuring of major elements of the federal response…”

Walter Pavlo wrote in Forbes, “While there are other factors involved with the consideration of ending the National Emergency Declaration, prisoner’s health continues to be an issue even today. Prisoners represent a population with substantial added risk for developing COVID-19 due to multiple factors stated by the CDC, including the inability to social distance.

home210218Pavlo notes that while the federal prison population had been decreasing prior to the start of the pandemic in April 2020, despite the CARES Act, the BOP population has increased 2.5% and is now 158,844. “Many in prison are hoping that President Biden extends the Covid-19 National Emergency Declaration until at least Summer 2023 to get a better picture on the trajectory of the virus,” Pavlo wrote. “Continuing the program can only protect lives of prisoners, many of whom will be returning to society in a few years anyway.”

Writing in USA Today last Thursday, Ingrid Jacques said, “Next month, Biden will again consider whether to extend the COVID national emergency declaration that has existed since early 2020. Congress has signaled it’s ready for it to end. In November, the Senate – including 12 Democrats – passed a resolution calling for a termination of the [NEA] emergency. Now that Republicans hold the House, expect that chamber to join in.”

But the death of the NEA emergency may not be at hand. Biden has found the NEA emergency very convenient for mandating change without the need for Congress. Relying on the NEA emergency, Biden “forgave” hundreds of billions of dollars of federal student loan debt. The courts have blocked that plan, and the Supreme Court will hear the argument in early March. If the NEA emergency is not renewed, it could weaken the Administration’s case.

Plus, the Biden administration was in court last week defending its right to order masks on airplanes, buses and trains. The Dept of Justice is arguing that the administration has the authority to require masks in the name of public health.

dontcare170123Axios reported last month that lawmakers who voted to end the NEA emergency “probably aren’t focused on the programs [that would be lost] as much as making a statement that the country has returned to normal… “[The pandemic] is over. I’m going to keep voting until we get it over,” said Sen. Joe Manchin [D-WV]. “We should get back to normal lives.” Sen. Tim Kaine [D-VA] said the Biden administration didn’t provide senators with a good reason to keep it in place – only sending a memo to offices urging a “no” vote 10 minutes after the vote.

Coronavirus Aid, Relief, and Economic Security Act, Pub.L 116-136, 134 Stat 281 (March 27, 2020)

National Emergencies Act, Pub.L 94-412, 90 Stat 1255 (September 14, 1976)

Politico, Biden team eyes end of Covid emergency declaration and shift in Covid team (January 10, 2023)

Forbes, Federal Prisoners Concerned Over End Of CARES Act National Emergency Declaration (January 20, 2023)

Senate, Joint resolution relating to a national emergency (S.J.Res. 63) (November 15, 2023)

Axios, What happens when the COVID national emergency ends (December 9, 2022)

– Thomas L. Root

COVID Winter Surge: Will It Happen? – Update for October 21, 2022

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

COVID’S IS NOT GOING AWAY

covidneverend220627COVID is such old news. President Biden says the pandemic’s over. The Bureau of Prisons’ notoriously unreliable numbers say that as of last Friday, only 160 inmates and 367 staff have the virus (although it’s present in 73% of BOP facilities). Nationally, confirmed cases are down 25% in the last two weeks.

Except… In the UK, infections from highly mutated subvariant BQ.1.1 are doubling every week — a rate of growth that far exceeds other leading subvariants. In the U.S., BQ.1.1 is spreading twice as fast as its cousin subvariant BA.2.75.2. In fact, BQ.1.1 seems to be the first form of COVID against which antibody therapies don’t work at all.

What’s more, last week a new subvariant called XBB began spreading in Singapore. New COVID-19 cases there more than doubled in a day, from 4,700 on Monday to 11,700 last Tuesday. The same subvariant just appeared in Hong Kong, too.

XBB is a highly mutated descendant of the Omicron variant that drove a record wave of infections last winter (including almost 10,000 BOP cases at one time). XBB is more contagious than any previous variant and, like BQ.1.1, evades the antibodies from monoclonal therapies. It is unclear whether the newest batch of bivalent booster shots will work against the XBB variant.

The Washington Post reports, “This time, it’s unlikely we will be barraged with a new collection of Greek alphabet variants. Instead, one or more of the multiple versions of the omicron variant that keep popping up could drive the next wave. They are different flavors of omicron, but eerily alike — adorned with a similar combination of mutations. Each new subvariant seems to outdo the last in its ability to dodge immune defenses.”

inmateCOVIDrights220124A report published Wednesday in the New England Journal of Medicine suggests that the subvariant, called BA.4.6, could drive reinfections. “It’s astonishing to see how the virus keeps mutating at such a rapid rate,” said study author Dr. Dan Barouch, director of the Center for Virology and Vaccine Research at the Beth Israel Deaconess Medical Center in Boston. “This is essentially viral evolution on steroids.”

“This suggests that omicron continues to evolve and continues to evolve in a way that becomes more transmissible and more effective at escaping vaccines and immune responses,” he said. “The results are actually a harbinger to new variants that might be even more worrisome.”

Two new COVID-19 variants that quietly emerged on the scene over the last few weeks — ones that Dr. Anthony Fauci has described as “pretty troublesome” — are becoming increasingly prevalent in the New York area and stoking fresh concerns as the nation braces for yet another potential winter surge, the latest CDC data show.

The CDC estimates that variants B.Q.1 and B.Q.1.1 now could account for up to 36.6% of New York area cases, which is nearly double the highest-range estimate at the national level.

prisoners221021These reasons may be why the Dept of Health and Human Services renewed the COVID-19 public health emergency last Thursday for another 90 days at least. This is not the emergency under the National Emergencies Act that authorizes CARES Act home confinement, which currently ends on February 28, 2023 (although experts believe that the NEA emergency will be extended, like it has been twice before). According to Government Executive, “[F]ederal public health officials are bracing for a possible winter surge in COVID-19 cases and a few weeks after President Biden said in a “60 Minutes interview “the pandemic is over.”

This suggests that CARES Act home confinement, compassionate release grants, and – unfortunately – lockdowns due to COVID may not be over yet.

Today, Omicron subvariants reflect a ‘viral evolution on steroids’ (October 19, 2022)

Washington Post, XBB, BQ.1.1, BA.2.75.2 — a variant swarm could fuel a winter surge (October 18, 2022)

National Geographic, Coronavirus in the U.S.: Where cases are growing and declining (October 15, 2022)

Daily Beast, This Deadly COVID Twist Is Like Nothing We’ve Seen Before (October 11, 2022)

Bloomberg, World Faces New Threats From Fast-Mutating Omicron Variants (October 12, 2022)

NJ.com, XBB variant: What is known so far about the newest COVID variant (October 13, 2022)

Government Executive, Coronavirus Roundup: The Biden Administration Renews the Public Health Emergency for COVID-19 (October 14, 2022)

– Thomas L. Root