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

THE OL’ SWITCHEROO

Unless you’re my age (and I am not telling you what that age might be), you’re probably not familiar with Gilbert and Sullivan’s light opera, 19th-century musicals that parodied British life. In H.M.S. Pinafore – perhaps their best-known work – low-class Buttercup pines for the high-born captain of the Royal Navy warship HMS Pinafore. At one point, she tries to hint to the Captain that despite their difference in societal status, they might be able to hook up.

She sings,

Things are seldom what they seem, skim milk masquerades as cream, black sheep dwell in every fold, all that glitters is not gold…

Remember two months ago, when the BOP said no one would get more than 60 days of Second Chance Act halfway house time, only to recant a week or so later? It seemed that the problem had been solved. Unfortunately, as the Bureau of Prisons proved last week, the fix was illusory, as “storks turn out to be but logs” or “Bulls are but inflated frogs.”

A new BOP memorandum issued last week at first seemed to be a wonderful expansion of home confinement, but it in fact strips away SCA rights from prisoners who have been serving the longest sentences.

We have not seen the memo, just a press release. The release provides that home confinement will be “a priority for individuals who are eligible and do not require the structured support of an RRC. RRC placement will be reserved for those with the greatest need.” What’s more, unit teams are directed to “use FSA and SCA Conditional Placement Dates—based on projected Earned Time Credits (FTCs) expected to earn—to guide prerelease planning and ensure accurate and timely referrals.”

More home confinement? Great news, right?

Not really. The new policy does not expand the BOP’s authority to place people on home confinement by even one day. Ever since 2008, the BOP has had the authority to place inmates in home confinement for the final 10% of their sentences (up to a maximum of 6 months) under 18 USC § 3624(c)(2). Six years ago, the First Step Act amended § 3624(c)(2) to direct that the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

However, none of the BOP’s authority meant much up to now. BOP staff largely did not send people directly to home confinement. It was easier to send them to halfway house and then let the halfway house send them on to home confinement and do the monitoring. The halfway houses were glad to do it, because it freed up a bed they could sell for another inmate, and they still got some payment for the inmate they were continuing to monitor.

Suddenly, the BOP has figured out that it can better use the limited number of halfway house beds it has under contract (and save money) by sending low-risk inmates directly to home confinement. It’s the right call, but it doesn’t expand the availability of home confinement one bit. The BOP has no more power to put people on home confinement today than it had a week ago, a month ago, a year ago, or even as of December 21, 2018.

What’s worse is what the memo does NOT say. On Saturday, Walter Pavlo reported in Forbes that “[w]hen asked whether inmates are still eligible for Second Chance Act placement up to 12 months prior to their FSA conditional placement date, as has been the case, the BOP responded, ‘Due to statutory restrictions found in 18 U.S.C. § 3624(c)(1), an individual who has earned 365 days (12 months) of First Step Act credits to be applied to prerelease custody cannot receive additional prerelease time under the Second Chance Act.’”

This means that no one with 730 or more FSA credits will get any SCA halfway house or home confinement. Pavlo wrote, “The BOP’s current stance contradicts its position from just a few months ago, when it stated that stacking First Step Act and Second Chance Act benefits was permissible. Now, without addressing its previous position, the BOP asserts that home confinement under the Second Chance Act is only allowed by law during the final 12 months of a prison sentence.

Additionally, the BOP claims that home confinement under the First Step Act can only be applied when the First Step Act time credits earned are equal to the remaining length of the prison term. This means an inmate cannot apply First Step Act credits to home confinement while also receiving up to 12 months of prerelease custody (6 months in a halfway house and 6 months in home confinement) under the Second Chance Act. For many inmates, this change means they will have to remain in prison for up to a year longer than they had initially expected.”

In the press release, BOP Director William K. Marshall III boasted that “President Trump said he would fight for the forgotten men and women of this country, and the First Step Act proved he meant it. Now, we are ensuring that this reform continues to work—not just as a policy, but as a promise to Americans seeking redemption and a path forward.”

BOP Press Release, Federal Bureau of Prisons Issues Directive to Expand Home Confinement, Advance First Step Act (May 28)

Forbes, Prisoners Set Back By Bureau Of Prisons Home Confinement Expansion (May 31)
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– Thomas L. Root