Tag Archives: national emergencies act

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

April 3, 2023 lisa-legalinfo Leave a comment

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.

In 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.

Writing 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

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

January 31, 2023 lisa-legalinfo Leave a comment

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.

The 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.

The 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.

What 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.”

The 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

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

January 23, 2023 lisa-legalinfo Leave a comment

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.

President 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.

Pavlo 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.

Axios 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.