Tag Archives: CARES Act home confinement

District Court Sends Prisoner Home From Home Confinement – Update for May 7, 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.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE FROM HOME CONFINEMENT

It can be challenging to explain to prisoners that what one district judge may decide on a compassionate release motion has almost no relevance to (and provides no precedential authority for) what another judge may decide in identical circumstances. What’s more, there are 677 district judge positions in the country (not including all of the district judges on senior status, who still carry a 25% caseload or better). That means there are well over 700 different opinions on how discretion should be exercised in considering a compassionate release motion.

odouls240507Still, it has almost been an article of faith that a prisoner already on home confinement is not going to get a district court to grant her compassionate release motion. Home confinement, after all, is to freedom what O’Douls is to beer. Not the real thing, but it sure beats having nothing to drink at all. Compassionate release (actually “sentence reduction” under 18 USC § 3582(c)(1)(A)(i)) requires that you show “extraordinary and compelling reasons” why your sentence should be reduced. When you’re already at home, your circumstances have to be truly extraordinary and compelling in order to get your sentence terminated early.

However, a Montana district court last week handed down what Ohio State University law professor Doug Berman called “an interesting new federal court order granting a § 3582(c)(1)(A)(i) sentence reduction motion based in part on the difficulties associated with extended home confinement.” In so doing, the judge turned the article of faith on its head.

Linda Reynolds, a 75-year-old career offender, had been doing her 262-month sentence for methamphetamine distribution since 2012 (and had served 53% of it). She was sent home on CARES Act home confinement two years ago after serving 114 months of her sentence. A few months ago, she filed a compassionate release motion arguing that her rehabilitation, age, medical conditions, unusually long sentence, and difficulties of extended home confinement together warrant termination of her sentence.

Last week, the district court granted her motion. The court found that Linda had completed several courses and certificates while in prison, maintained employment “throughout most of her time on home confinement,” and has stayed sober (no mean feat for someone who has battled addiction her whole adult life).

JSIN240507Two of the court’s analyses stood out. First, the district court resorted to the Sentencing Commission’s JSIN (Judiciary Sentencing Information) platform that compares sentences nationwide for people with the same guideline, offense level, and criminal history category. JSIN (available for free on the Sentencing Commission website) reported that courts imposed an average term of 188 months and median of 180 months, “nearly seven years shorter than Reynolds’s term.” In fact, the government had recommended a sentence of 188 – 235 months back in 2012. The district court found that Linda’s sentence – despite being what Guidelines Chapter 4B called for – “appears to be unusually long compared to her co-defendants, similarly situated defendants, and the sentence recommended by the government.”

Second, the court found that the terms and conditions of Linda’s home confinement had prevented her “from receiving needed medical care and have increased [her] out-of-pocket medical expenses.” Her status of still being in BOP custody although on home confinement prevented her from enrolling in Medicare and obtaining low-income housing, which would have put her in town and cut her transportation costs for getting to her work training program, meeting her counselor twice a week, and mak[ing] her four monthly UAs [urinalyses for drug use]. Reynolds’s status on home confinement also has prevented Reynolds from obtaining a checking account, from engaging in work that would produce supplemental income, and from being able to fully interact with her family members and support system.”

home190109While Linda’s “age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually,” the Court held, “[t]hese factors appear, however, to rise to that level when viewed together… The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Linda’s sentence.”

Sentencing Policy and the Law, Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction (April 30, 2024)

United States v. Reynolds, Case No 4:12-cr-0084 (D.Mont, April 30, 2024)

U.S. Sentencing Commission, Judiciary Sentencing Information (JSIN)

– Thomas L. Root

BOP Says CARES Act Worked, Suggests Support for New Program – Update for April 8, 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.

BOP STUDY SHOWS CARES ACT REDUCED RECIDIVISM

caresbear231116You may remember a Senate effort last fall, S.J.Res. 47, to force those still on CARES Act home confinement back to prison. That measure, sponsored by Senator Marsha Blackburn (R-TN) and co-sponsored by 27 other Republicans, was sent to the Senate Judiciary Committee where it is languishing with no hearings and no prospects for being reported out.

Sen. Tom Cotton (R-AR) declared at the time that extending CARES Act home confinement — especially now that federal inmates have 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.”

cotton190502Good ol’ Tom. Every federal prisoner has an inner rapist/drug dealer just waiting to erupt upon release from prison to terrorize women and children.

The Federal Bureau of Prisons issued a study last week showing that “the CARES Act’s provision for early and extended home confinement did not negatively impact recidivism rates. In fact, it may have contributed to a reduction in post-release recidivism, offering a promising direction for justice-involved stakeholders seeking effective strategies to reduce incarceration and its associated costs, while also promoting public safety and successful reintegration into society.”

The study determined that prisoners with a CARES assignment failed no more or less than comparable persons in home confinement (during the final 6 months/10% of their sentences). The CARES Act and were less likely to recidivate in the year following release from custody (3.7% vs 5.0%) and marginally less likely to be re­arrested for violent offenses (0.9% vs 1.3%). And those with a CARES assignment fail less often than comparable persons after release.

BOP Director Colette Peters said, “This study suggests that reducing incarceration for appropriate people through measures like early and extended home confinement does not compromise public safety and in fact, suggests it may contribute to successful reintegration into society.”

recidivism240408Writing in Forbes, Walter Pavlo said, “The BOP intends to build on the information from this study and others on home confinement. Prisons remain crowded and many inmates are serving longer sentences in expensive institutions than are necessary. Home confinement, which is a major benefit to both inmates and taxpayers, is a big part of the First Step Act. Whether the BOP can fully implement the program to get inmates out of prisons and into the community faster remains a challenge.”

BOP, CARES Act: Analysis of Recidivism (March 29, 2024)

BOP, CARES Act Shows Promise in Reducing Recidivism, Reinforcing the Benefits of Reduced Incarceration (March 29, 2024)

Forbes, Bureau of Prisons Releases Encouraging Study on CARES Act (March 30, 2024)

– Thomas L. Root

A Few More Short Takes – Update for December 14, 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.

SPIRIT OF THE SEASON

The Romans had a saying, “De mortuis nil nisi bonum dicendum est,” or – as my sainted Latin teacher Emily Bernges would have translated, “Of the dead, nothing but good shall be said.”

This sentiment is enshrined in federal law as the “abatement ad initio” doctrine, which holds that a trial conviction is vacated when a defendant dies before he or she can exhaust the direct appeal process. The doctrine is followed by every federal court in the country.

In a Scrooge-worthy appeal in the 1st Circuit, however, the government argued last week that the Circuit should “break new ground by holding that a defendant’s conviction outlasts his death and does not get wiped away just because he died before his appeal could be heard,” according to Reuters.

grinch151213Former biotech chief executive Frank Reynolds was convicted of securities fraud in 2020 and sentenced to 84 months. He died a year ago with his appeal still pending. In its argument, the government admitted that every appellate circuit in America would vacate Frank’s conviction, but it argued that those courts’ opinions should not matter. Vacating the conviction and “restitution order when a defendant dies while his or her direct appeal is pending would flout [a] clear Congressional directive,” the government contends, that when a defendant subject to a restitution order dies “the individual’s estate will be held responsible for any unpaid balance of the restitution amount” under 18 USC § 3613(b).

At oral argument, one skeptical judge told the government that it needed “a pretty good argument to upset an apple cart that is going uniformly across the country without any sign of being a big problem.” Another member of the panel noted that the DOJ could always bring a civil case against a defendant’s estate for restitution.

United States v. Reynolds, Case No 20-1268 (1st Cir, argued Dec 4, 2023)

Reuters, Convictions should outlive defendants’ deaths, US tells appeals court (December 4, 2023)

CONSERVATIVE SUPPORT FOR CARES ACT HOME CONFINEES

The Senate has yet to take up S.J.Res. 47, the Republican effort to force 3,000 CARES Act home confinees back to prison. Last week, officials of the Conservative Political Action Coalition and the Faith and Freedom Coalition – wrote in The Hill that “the CARES Act’s home confinement provision slowed the virus, saved millions of taxpayer dollars, and maintained public safety. By all measures, it has been a success.”

recidivism231214
The authors challenged Republican arguments that CARES Act prisoners were committing new crimes and terrorizing communities. “Of the people moved to home confinement, 521 were returned to custody. This equates to a 4 percent recidivism rate, less than one-tenth of the BOP average. But looking at the numbers more closely, the CARES Act recidivism rate is much more impressive than that. Of the 521 returned to prison, 296 were sent back for positive drug or alcohol tests, 90 for leaving their homes, and 113 for technical violations. That means that only 22 people were re-incarcerated for committing new crimes.”

The recidivism rate for new crimes works out to 0.2%, about 1/200th of the BOP average.

The Hill, There’s no reason to send these 3,000 people in home confinement back to federal prison (December 3, 2023)

S.J.Res. 47, A joint resolution providing for congressional disapproval under… the rule submitted by the Department of Justice relating to “Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act“

JOBS FOR ALL!

A bipartisan group of Representatives last week introduced the BOP Direct-Hire Authority Act, H.R. ____ (no bill number yet) intended to alleviate BOP staffing shortages by letting the agency hire personnel directly instead of the standard federal employment process that goes through the federal Office of Personnel Management and takes up to six months.

understaffed220929Reps Glenn Grothman (R-WI) and Matt Cartwright (D-PA) are spearheading the effort to try to turn around staffing losses of 20% in the last 7 years. The bill is supported by 11 co-sponsors and the Council of Prison Locals C-33, the largest nationwide BOP employees union. union for BOP employees nationwide.

The bill would provide direct-hire authority for a BOP facility until it reaches a level of 96% staffing level.

H.R. ___(no bill number yet), BOP Direct Hire Authority Act

Press release, Grothman, Cartwright Introduce Bipartisan Bill to Address Staffing Shortage in Bureau of Prisons (December 6, 2023)

– Thomas L. Root

President Vows to Block GOP Plan to Lock Up People Remaining on CARES Act Home Confinement – Update for December 1, 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.

BIDEN THREATENS VETO OF BLACKBURN EFFORT TO CANCEL CARES ACT HOME CONFINEMENT

return161227The White House has threatened to veto a Republican-sponsored Senate resolution that would send about 3,000 federal offenders who were released to home confinement during the COVID-19 pandemic back to prison.

NPR reported yesterday that as early as next week, the Senate could vote on S.J.Res. 47, sponsored by Sen. Marsha Blackburn (R-TN) and more than two dozen other Republican senators. The resolution would negate Dept. of Justice rules that permit over 3,000 federal prisoners sent to home confinement during the COVID pandemic by the CARES Act to complete their sentences at home absent misbehavior.

The resolution is brought under the Congressional Review Act, legislation passed 27 years ago to create a process for Congress to overturn federal agency rules.

Blackburn’s office told NPR that “the COVID national emergency is over, and criminals need to be behind bars, not on the streets.” NPR reported that DOJ says only 27 of the 13,000 prisoners released to extended home confinement during COVID were rearrested or returned to prison custody for committing a new crime.” Blackburn’s office alleges that some of those 27 people “face charges for assault, drugs and human smuggling,” according to NPR, “but analysts who follow the criminal justice system say the people released during the pandemic have a very low recidivism rate – less than 1%, much smaller than the rate for all federal prisoners, according to government statistics.”

Writing three weeks ago in The Hill, Sarah Anderson of the R Street Institute noted that CARES Act home confinement recidivism “is a less than 0.2 percent recidivism rate, which is less than 1/200th of the federal government’s overall self-reported recidivism rate of 43 percent. Put differently, a staggering 99.8 percent of those sent to home confinement under the CARES Act succeeded in establishing and maintaining law-abiding lives outside of federal brick-and-mortar custody. Advocates of public safety and the rule of law should count that as a bonafide win.”

veto231201In a statement of administration policy released Wednesday, the Office of Management and Budget said flatly that President Biden will veto S.J.Res. 47 if it makes it to his desk. OMB cited the extraordinarily low recidivism rate among those released to home confinement and the reduced cost to taxpayers compared to incarceration:

Of the over 13,000 people released to home confinement under the CARES Act, less than one percent have committed a new offense—mostly for nonviolent, low-level offenses—and all were returned to prison as a result. Moreover, since home confinement is less than half the cost of housing someone in prison, this program has saved taxpayers millions of dollars and eased the burden on [Federal Bureau of Prisons] staff so they can focus on the higher risk and higher need people in Federal prison.

Daniel Landsman, Vice President of Policy for FAMM, said, “Our federal prison system is approaching crisis level with understaffing and its ability to properly care for and keep safe both the people who live and the people who work in their facilities… [T]he thought of adding, in one fell swoop, 3,000 or so people back into the population when we’re already struggling to adequately staff and keep people safe just doesn’t make sense to me.”

recividists160314Sen. Cory Booker (D-NJ) issued a policy brief last June that declared “CARES Act home confinement has been a resounding success in safely reintegrating individuals into the community without compromising public safety.”

The effect of a Biden veto would probably be to kill S.J.Res. 47. With the Democrats controlling the Senate and the Republicans having a razor-thin majority in the House, the likelihood of both chambers to rustle up a two-thirds majority to override a Biden veto is extremely remote.

S.J.Res. 47, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice relating to Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (October 30, 2023)

Reason, Biden Threatens To Block GOP Plan To Send 3,000 People Back to Federal Prison (November 30, 2023)

Reason, 11,000 Federal Inmates Were Sent Home During the Pandemic. Only 17 Were Arrested for New Crimes (August 22, 2022)

Dept of Justice, Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Office of Management and Budget, Statement of Administration Policy: S.J. Res. 47 – A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice relating to “Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act” (November 30, 2023)

Sen Cory Booker (D-NJ), CARES Act Home Confinement – Three Years Later (June 23, 2023)

The Hill, The Senate should codify — not reject— CARES Act’s home confinement policy (November 9, 2023)

NPR, Hundreds released from prison during pandemic may be sent back under Senate proposal (November 30, 2023)

– Thomas L. Root

If You Like Your Home Confinement, You Can Keep Your Home Confinement – Update for April 11, 2023

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CARES ACT UPDATE

Last Friday, I reported on the Dept of Justice’s final rule delegating to the Bureau of Prisons the authority to determine whichtprisoners on home confinement under the CARES Act will remain there and which prisoners will return to a secure facility.

dontcomeback230411A few updates: First, BOP Director Colette Peters has instructed Residential Reentry Managers “that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.” A BOP press release said, “While individuals who have successfully adjusted to home confinement should not be returned to secure custody, the Bureau, and its Residential Reentry Centers, will move swiftly in response to any individual on home confinement who poses a public-safety threat to the community.”

The problem with such BOP memos – as those familiar with the Bureau’s moving-target CARES Act eligibility memos know – is they are subject to change without notice. Still, its a bit heartening.

Speaking of the CARES Act, I reported last week that both the House and Senate had passed H.J.Res. 7, bringing an immediate end to the national COVID emergency, and thus moving the end of BOP CARES Act home confinement up from June 10th to early May.

President Joe Biden, while not happy with the Congressional action, said he would not veto it.

time161229The clock is now ticking. The measure got to the President’s desk last Wednesday. He signed it last night (Monday, April 10th).

Thus, the BOP’s CARES Act placement authority will end on May 10th..

Office of the Attorney General, Department of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (88 FR 19830, April 4, 2023)

BOP, Home Confinement Under the CARES Act (April 5, 2023)

H.J.Res. 7, Congress.gov (April 11, 2023)

Politico, Biden signs bill ending Covid-19 national emergency (April 10, 2023)

– Thomas L. Root

DOJ Kicks Post-CARES Act Can Down the Road (A Little) – Update for April 7, 2023

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BOP FOX SHOULD GUARD HOME CONFINEMENT HENHOUSE, DOJ SAYS

fox230131Remember when the Trump Administration made that minute-to-midnight announcement that the end of CARES Act home confinement would mean that all those prisoners placed at home would have to return to prison?

Thankfully, the flawed Dept of Justice Office of Legal Counsel opinion was later withdrawn by the Biden Administration. But when a new OLC opinion supplanted the old, the reversal wasn’t total. Rather, DOJ said that some might return, but that would be governed by rules yet to be promulgated.

(Explainer: Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.)

As an old Administrative Procedure Act hand, I was relieved. “Rules” suggested regulations written after a classic 5 USC § 553 notice-and-comment formal rulemaking. Everyone could argue the merits and demerits of whatever standards were proposed, and the Bureau of Prisons would subsequently be compelled under the Accardi doctrine to follow the rules (something the BOP too often ignores where its own informal rules, policies and program statements are involved).

Last Tuesday, the rulemaking announced last June ended with a detailed report and a new subpart to the BOP’s delegation rule, 28 CFR §0.96.  The new rule, which will affect slightly more than 3,400 people (because the agency is still sending people to CARES Act home confinement for another month), adds a subpart (u), which, alas, contains no substantive limitation on the BOP’s discretion. That, we are promised, is to come.

can230407The can just got kicked down the road.

DOJ says the final rule, reduced to its essence, provides that “the [DOJ] and the [BOP] will work together to develop guidance to explain objective criteria the Bureau will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody. Providing the Bureau with discretion to determine whether any inmate placed in home confinement under the CARES Act should return to secure custody will bolster the Bureau’s ability to efficiently manage its resources and nimbly address changing circumstances in the community, in relation to the needs and profiles of individual inmates.”

The BOP? Nimble? If that’s the case, Joe Biden can compete against Simone Biles.

nimble230407Still, DOJ’s report acknowledges that “under typical circumstances, inmates who have made the transition to home confinement would not be returned to a secure facility absent a disciplinary reason. This is because the typical purpose of home confinement is to allow inmates to readjust to life in the community. Removal from the community of those already making progress in home confinement would frustrate this goal, and the widespread return of prisoners to secure custody without a disciplinary reason would be unprecedented and out of step with the reentry-specific goals of home confinement, as mentioned throughout this final rule.”

(My emphasis, not the report’s).

Reuters interpreted the report as directing that “[t]he BOP will still be able to impose ‘proportional and escalating sanctions,’ including a return to prison, on inmates who commit infractions.”  But the report does not exactly say that, and the contents of the report itself do not limit the BOP’s management of CARES Act home confinees at all.  Any such limitations are coming – if at all – in subsequent policy memos and program statements.

Two sets of fun facts are contained in the DOJ report adopting the rule. First, as Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog, between March 26, 2020, and January 23, 2023, the BOP placed 52,561 inmates in home confinement. As of January 23, there were 5,597 inmates in home confinement, and 3,434 of those were CARES Act people.

The second has to do with money. Contrary to the oft-repeated inmate trope that the BOP makes money by keeping inmates locked up (something that only be believed if you simultaneously pay your Flat Earth Society dues), keeping people in prison is expensive. The DOJ noted:

Moneyspigot200220Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. In Fiscal Year (“FY”) 2019, the cost of incarceration fee (“COIF”) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. In contrast, according to the Bureau, an inmate in home confinement costs an average of $55.26 per day—less than half the cost of an inmate in secure custody in FY 2020.

Only the government could manage to spend $55.00 a day to keep someone in their own house eating their own food and paying their own bills. Anyone wonder how we have a national debt of over $31 trillion?

Office of the Attorney General, Department of Justice,
Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (88 FR 19830, April 4, 2023)

Sentencing Law and Policy, Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison (April 4, 2023)

Reuters, US rule to allow some inmates to stay home after COVID emergency lifts (April 4, 2023)

– Thomas L. Root

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

No Place Like Home – Update for August 31, 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.

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.

home190109The 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

Scrutiny is ‘Difficult’… But Aplenty – Update for August 30, 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.

BOP DIRECTOR DOESN’T LACK FOR MATERIAL

criticize220830In her first video message to Bureau of Prisons staff, reported on last week in Government Executive, new Bureau of Prisons Director Colette Peters acknowledged the bumpy ride the BOP has experienced over the past few years: “We have had a great deal of scrutiny from auditing and oversight entities both internal to and external of our agency. While these findings are difficult to hear, we must work diligently to address these deficiencies in order to improve our environment for everyone who works and lives at the bureau.”

Last week suggests that Peters has no shortage of current ‘scrutiny’ to work with.

CARES Act Management: On Monday, NPR reported that only 17 of the 442 inmates returned to prison from CARES Act home confinement had committed new crimes. The number of new offenders represented less than two-tenths of a percent of the 11,000 sent home. Most of the 17 offenses were drug-related.

NPR criticized the BOP for a lack of due process and being too quick to revoke CARES Act status for insignificant infractions. With suits against the BOP over CARES Act revocation proliferating, NPR said, the agency is “considering a new federal rule to make the process more clear.”

The Hot Mess at Carswell: On Friday, the Ft. Worth Star-Telegram dropped another ticking bomb on the Director’s desk. The paper’s investigation found that FMC Carswell – the only federal medical facility for women inmates in the country – “has been plagued with systemic sexual abuse for years. The Star-Telegram spoke to 12 former and current inmates at the facility, as well as prison staff and experts familiar with the investigative process at the Bureau of Prisons, which has oversight of federal prisons. Hundreds of pages of incident reports, federal records and court documents reveal a pattern of sexual misconduct and cover-ups.”

sexualassault211014What’s more, the paper reported, Carswell inmates “say they are not always able to report sexual assaults due to fear of retaliation. Even when staff members report sexual assaults, Carswell upper management has at times failed to investigate misconduct, the union president at the prison said.” One Carswell staff member described the facility as “the perfect place for sexual misconduct.”

Finally, the newspaper reported, the BOP failed to provide victims with any mental health care to deal with trauma from the assaults. The BOP denied the claims, asserting that “every inmate and pretrial detainee in a BOP facility has daily and regular access to Health Services and Psychology Services staff.”

Lying Warden, Freezing Inmates: Meanwhile, the New York Post reported a week ago that the warden of a federal prison in California – identified by the paper as FCI Terminal Island – failed to fix a broken camera system in the lockup and kept prisoners in the cold after a heating malfunction during an unusually cold winter.”

The unidentified warden “risked the safety and security of inmates and staff” with the 2019 heating and surveillance failures at the prison near Los Angeles, according to a heavily redacted Dept of Justice Inspector General report of the probe obtained by the paper through a Freedom of Information Act request.

liar151213Investigators also found that the warden “lacked candor” in sworn interviews with agents. The DOJ’s Public Integrity Section declined to prosecute after the investigation, according to the documents.

Making Fun of Women and Blacks: A California TV station reported last week that a BOP whistleblower told the BOP Internal Affairs division earlier this month that the author of a “racist and misogynistic Instagram page” entitled “Good Verbal,” works at FCC Victorville, based on the private jokes and inside knowledge of the posts.

The page, that mocks women prisoners getting sexually assaulted at FCI Dublin, female officers sleeping their way to the top and black prisoners getting thrown into the SHU, among other posts,” included details suggesting the author was assigned to work at Victorville.

The whigoodverbal220830stleblower asked that IA investigators identify the author, discipline that person, and shut down the page. “I refuse to work in a dangerous environment and be subjected to this type of treatment by alleged fellow staff members,” the letter to Internal Affairs read. “I am one of many people that are the targets of these nasty and highly offensive posts. It should also be noted that other institutions in various regions across the county are affected by this disgusting page. This page has the potential to turn into a national law enforcement issue.”

As of August 30, “Good Verbal” remained posted on Instagram and appeared to be unrepentant, saying: “Our humor is not for everyone. This is how we deal with the horrible things we must see to earn money. We are the modern day sin eaters. We try to manage those that are unfit for society.”

Who’s the Rat?  Finally, at a detention hearing last week for one of the three defendants charged with the murder four years ago of James “Whitey” Bulger, the government revealed that inmates at USP Hazelton knew in advance that Bulger was arriving on October 29, 2018. He died 12 hours later.

snitch160802NBC News called Bulger’s death “a stunning security failure for the federal prison system. The previously undisclosed revelation that USP Hazelton inmates were tipped off to Bulger’s arrival raises additional questions about the federal Bureau of Prisons’ handling of his transfer to one of the country’s most violent prisons.”

“It’s just absurd that this happened,” a former BOP gang investigator told NBC.

A Bit of Support from a Critic: One piece of criticism the new Director received within about a day of her swearing-in four weeks ago was her decision to keep outgoing BOP Director Michael Carvajal on for a month as an advisor.  Last week, Shane Fausey – national president of the National Council of Prison Locals union and a strident critic of BOP management – defended keeping Carvajal on. With an agency the size of the BOP, “you don’t just turn off the lights and say have a nice day. It requires a transitional period to understand, and I hate to use the word, ‘bureaucracy’ of the federal government,” Fausey said.  “Whatever your personal feelings are with Director Carvajal, I think it’s essential for the success of Director Peters that he stay on board to kind of guide her at the beginning of her tenure.”

Government Executive, A New Director Is Bringing Hope to the Federal Prisons Agency (August 22, 2022)

NPR, Released during COVID, some people are sent back to prison with little or no warning (August 22, 2022)

Ft Worth Star-Telegram, They were sexually assaulted in prison. An overwhelmed mental health system failed to help (August 26, 2022)

Ft. Worth Star-Telegram, ‘I’m nobody to them.’ Survivors report sexual abuse by staff at Fort Worth Carswell prison (August 26, 2022)

New York Post, Warden failed to fix camera system, heat at California federal lockup: watchdog (August 22, 2022)

KTVU-TV, Whistleblower outs racist, misogynistic Instagram page at California federal prison (August 24, 2022)

NBC, Twist in Whitey Bulger murder case: Inmates at West Virginia prison knew in advance he was coming (August 23, 2022)

– Thomas L. Root

DOJ’s Post-CARES Act Rule Proposal Leaves Out The Important Stuff – Update for June 27, 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.

DOJ PROPOSES RULE TO GIVE BOP DISCRETION ON ORDERING CARES ACT HOME CONFINEES TO RETURN TO PRISON

nogoingback210208Almost everyone was relieved last December when the Dept of Justice’s Office of Legal Counsel rescinded its Trump-era opinion that people on CARES Act home confinement would not have to return to prison when the COVID-19 emergency ends.

Unfortunately, there was an “easter egg” in that opinion. In a statement that accompanied release of the opinion, Attorney General Merrick Garland said DOJ would issue rules to ensure that those “who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

At the time, Ohio State Univ law professor Doug Berman said in his Sentencing Law and Policy blog, “I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the ‘home confinement cohort’ who may need to worry about eventually heading back to federal prison.”

Last week, the chickens started coming home, but not precisely as the AG suggested. In a Notice Of Proposed Rulemaking (NPRM), the DOJ proposed that after the COVID-19 national emergency ends, the BOP Director would have delegated authority to let “any prisoner placed in home confinement under the CARES Act who is not yet otherwise eligible for home confinement under separate statutory authority to remain in home confinement under the CARES Act for the remainder of her sentence, as the Director determines appropriate.”

arbitrary220627So far, so good. The problem, however, is that the NPRM does not propose the criteria the BOP should use to decide who stays home and who returns. Instead, the NPRM promises that “following the issuance of a final rule, the Bureau will develop, in consultation with the Department, guidance to explain criteria that it will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody.”

The devil’s in the details; here, DOJ has apparently decided that the criteria for keeping folks at home will remain opaque to public comment and judicial review. For anyone who lived through the moving targets that were the original CARES Act home confinement criteria in the early days of COVID, this suggests a continuation of an arbitrary and confusing system for returning home confinement people to prison.

The good news is that DOJ – noting that over 4,900 inmates had been placed in home confinement under the CARES Act, with 2,826 of them having release dates over 12 months away – said it intended that CARES Act placement will “for the duration of the covered emergency period.”

covidneverend220627When will the COVID-19 emergency end? Walter Pavlo said last week that while no one knows for sure, “one can bet that it will not be before the mid-term elections in November and could likely extend through another COVID-19/flu season of 2023.” Given that 55% of all national emergencies declared in the last century are still in effect (including six over 25 years old), the end of the COVID-19 emergency probably will not come soon.

Meanwhile, a bit of irony: We reported on May 11th about a lawsuit in Connecticut challenging the removal of an inmate from CARES Act home confinement without a hearing. The government has moved to dismiss the habeas corpus action. A hearing on the dismissal motion set for June 15 was postponed because the government’s attorney was too ill with COVID to attend.

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

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

DOJ, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 87 FR 36787 (June 21, 2022)

Forbes, Department of Justice Proposes Final Rule to End CARES Act for Home Confinement for Federal Prisoners (June 25, 2022)

Order (ECF 27), Tompkins v. Pullen, Case No 3:22cv339 (D.Conn)

– Thomas L. Root