See, e.g., 3501-3521. 20. There is no legislative history to support such a reading, and there are other plausible explanations for the grace period, including broader forms of administrative convenience and benefit, such as letting BOP finish processing home-confinement placements that were in progress and to which BOP had already devoted resources. By implementing the CARES Act, Treasury is taking . The Bureau has realized significant cost savings by placing eligible inmates in home confinement under the CARES Act relative to housing those inmates in secure facilities, and it expects those cost savings to continue for inmates who remain in home confinement under the CARES Act following the end of the covered emergency period. To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement . L. 116-136): (1) During the covered emergency period as defined by the CARES Act, when the Attorney General determines that emergency conditions will materially affect the functioning of the Bureau of Prisons (Bureau), lengthening the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under 18 U.S.C. documents in the last year, 20 This repetition of headings to form internal navigation links the material on FederalRegister.gov is accurately displayed, consistent with .). . 50. Although placements under the CARES Act were not made for reentry purposes, the best use of Bureau resources and the best outcome for affected offenders is to allow the agency to make individualized assessments of CARES Act placements with a focus on inmates' eventual reentry into the community. Violations of the conditions of home confinement requiring return have been rare during the pandemic emergency, however, and very few inmates placed in home confinement under the CARES Act have committed new crimes. 509, 510, part 0 of title 28 of the Code of Federal Regulations is proposed to be amended as follows: 1. [34] 3621(a) (A person who has been sentenced to a term of imprisonment . COVID-19 most often causes respiratory symptoms, but can also attack other parts of the body. Re: Home Confinement This milestone number also includes inmates eligible for Home Confinement under the emergency authority exercised by the Attorney General on April 3, 2020 in accordance with the CARES Act. O.L.C. [16], The term covered emergency period refers to the period beginning on the date the President declared a national emergency with respect to COVID-19 and ending 30 days after the date on which the national emergency declaration terminates.[17]. People are only pulled back into facilities from home confinement if they have violated the rules of the program. Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. 48. 6. available at https://www.justice.gov/olc/file/1457926/download This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). has no substantive legal effect. 60541. See id. Section 12003(b)(2) ends with the phrase as the Director determines appropriate, which explicitly delegates authority to the Director to determine the appropriate amount to lengthen a period of home confinement. CDC, Considerations for Modifying COVID-19 Prevention Measures in Correctional and Detention Facilities (June 22, 2021), Download Each document posted on the site includes a link to the Overview of the Federal Home Confinement Program 1988-1996, 3624(g). 101(a), 132 Stat. 823 F.3d 1238, 1242 (9th Cir. on NARA's archives.gov. L. 115-391, sec. Moreover, as findings in the SCA indicate, inmates who are provided the types of benefits home confinement can afford, such as opportunities to rebuild ties to family and to return to the workplace and to the community, may ultimately be less likely to recidivate. [14] at 304-06. Released prisoners cite family support as the most important factor in helping them stay out of prison. 38. See 67. Federal Prison Bureau Nonviolent Offender Relief Act of 2021 This bill establishes a new early release option for certain federal prisoners. The Home Confinement Clearinghouse will match . Additional observation and research will need to be conducted to determine if this very low level of recidivism can be maintained, or if it was affected by the unique external circumstances caused by the global pandemic. See Such individualized assessments are consistent with direction the Bureau has received from Congress in other contexts. That law also limits the duration of home confinement "to the lesser of ten percent of a prisoner's sentence or six months," a term the CARES Act expandedbut only until "the covered emergency period" ends. The Final Rule becomes the law that the BOP will follow. These data suggest that inmates placed on longer-term home confinement under the CARES Act can be and have been successfully managed, with only a limited number requiring return to secure custody for disciplinary reasons. 3624(g)(4) (In determining appropriate conditions for prisoners placed in prerelease custody pursuant to this subsection, the Director of the Bureau of Prisons shall, to the extent practicable, provide that increasingly less restrictive conditions shall be imposed on prisoners who demonstrate continued compliance with the conditions of such prerelease custody, so as to most effectively prepare such prisoners for reentry.). Indeed, of the nearly 5,000 inmates placed in home confinement under the CARES Act, as of January 8, 2022, only 322 had been returned to secure custody for any reason, and only eight for committing a new crime. [4] For all of these reasons, the Department proposes to provide the Director with express authority and discretion to allow prisoners who have been placed in home confinement under the CARES Act to remain in home confinement after the conclusion of the covered emergency period. See on This information is not part of the official Federal Register document. The Department has concluded that the most reasonable reading of the CARES Act permits the Bureau to continue to make 5212, Encourage the United States Senate to promptly pass The Emmett Till Antilynching Act. 35. CARES Act sec. Many of these individualsall of whom have been successfully serving their sentences in the communitymay have release dates more than six months after the expiration of the covered emergency period when it expires, and therefore may not then be eligible for placement in home confinement under 18 U.S.C. on [60] Start Printed Page 36794 The Bureau, in its discretion, forwards certain home confinement cases to the prosecuting United States Attorney's Office for the input of prosecutors, taking any objections into account when approving or denying those cases. documents in the last year, 1411 edition of the Federal Register. Re: Home Confinement The Attorney General directed that the determination of whether to place an inmate in home confinement should be made on an individualized basis, taking into account the totality of the inmate's circumstances, the statutory requirements, and the following non-exhaustive discretionary factors: The inmate's risk score under the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN);[11], The inmate's crime of conviction and the danger the inmate would pose to the community. 54. See at *7-9. Inmates who violate these conditions may be disciplined and returned to secure custody. 1109, 134 Stat. I've talked to several people about my experiences on home confinement, I . Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). 18. The Bureau of Prisons (Bureau or BOP) modifies regulations on Good Conduct Time (GCT) credit to conform with legislative changes under the First Step Act (FSA). O.L.C. You must also prominently identify the confidential business information to be redacted within the comment. headings within the legal text of Federal Register documents. [3] [5] Pursuant to the Act, the Federal Bureau of Prisons (BOP) was ordered to prioritize the use of home confinement as a tool for combatting the risks of COVID-19 for vulnerable inmates. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase CONFIDENTIAL BUSINESS INFORMATION in the first paragraph of your comment. FOR FURTHER INFORMATION CONTACT Jody Sundt On March 13, 2020, the President of the United States declared that a national emergency existed with respect to the outbreak of COVID-19, beginning on March 1, 2020. The documents posted on this site are XML renditions of published Federal (last visited Apr. Although inmates in home confinement are transferred from correctional facilities and placed in the community, they are required to remain in the home during specified hours, and are permitted to leave only for work or other preapproved activities, such as occupational training or therapy. This view is reinforced by the structure of the CARES Act, and particularly by a comparison of section 12003(b)(2) with the section of the CARES Act that immediately follows it. Start Printed Page 36791 29, 2022); Nat'l Academies of Sciences, Engineering, and Medicine, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/living-prisons-jails.html The new memorandum provides updated guidance and supersedes the memorandum dated November 16 . [35] 59. Because the affected inmates are currently serving their sentences in home confinement, there will be no new costs associated with this proposed rulemaking. Despite public requests to rescind the memo, the . The Bureau's ability to control populations in BOP-operated institutions as well as, where appropriate, in the community, allows the Bureau flexibility to respond to circumstances as varied as increased prosecutions or responses to local or national emergencies or natural disasters. Id. It was viewed 12 times while on Public Inspection. Finally, this interpretation permits the Bureau to take into account whether returning CARES Act inmates to secure custody, thereby increasing populations in BOP facilities, risks new, potentially serious COVID-19 outbreaks in prisons even after the broader national emergency has passed. 11. This section differs from section 12003(b)(2) in important ways. According to the Bureau, 4,902 of these inmates were placed in home confinement pursuant to the CARES Act. Although the CARES Act was a response to the emergency conditions presented by the COVID-19 pandemic, Congress's expansion of the Bureau's home confinement authority as part of that response is consistent with its recent and clear indication of support for expanding the use of home confinement based on the needs of individual offenders. 115-699, at 2224; SCA sec. Liesl M. Hagan See In 0.96, add paragraph (u) to read as follows: (u) With respect to the authorities granted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. 26, 2022). See (Nov. 16, 2020), 56. That section makes a single change to the Bureau's home confinement authorityto allow the Director to lengthen the duration for which prisoners can be placed in home confinement relative to the maximum time periods set forth in 18 U.S.C. 3. at sec. to rebuild ties between offenders and their families, while the offenders are incarcerated and after reentry into the community, to promote stable families and communities; . For all of these reasons, and for the additional reasons the operative OLC opinion explains in more detail, the Department believes that the best reading of the CARES Act is that an inmate whose period of home confinement the Director properly lengthened during the covered emergency period may remain in home confinement, at the Director's discretion, including after the covered emergency period ends. offers a preview of documents scheduled to appear in the next day's Register documents. The . In addition, most sentencing courts anticipated that offenders would be incarcerated in a secure facility, and there may be concern that placing inmates in home confinement for longer periods might not appropriately honor the intent of the courts, the interests of prosecuting United States Attorney's Offices,[69] Until the ACFR grants it official status, the XML See, e.g., These efforts were undertaken over years of bipartisan negotiations and garnered broad support across the political spectrum, beginning with the Second Chance Act of 2007 and By the Act's plain terms, the Director's authority to place an inmate in home confinement under the CARES Act expires at the end of the covered emergency period, or if the Attorney General revokes his finding. available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html at 658 (The purposes of the Act are . You can also include a description of the CARES Act home confinement circumstances, and why these circumstances may present an "extraordinary and compelling" reason to reduce your sentence. [1] Start Printed Page 36792 (directing the Bureau to consider, among other discretionary factors, the age and vulnerability of [an] inmate to COVID-19 when assessing which inmates should be placed in home confinement). 3621(b) (providing that [t]he Bureau of Prisons shall designate the place of the prisoner's imprisonment, taking into account factors such as facility resources; the offense committed; the inmate's history and characteristics; recommendations of the sentencing court; and any pertinent policy of the United States Sentencing Commission). The Sentencing Project's Executive Director Amy Fettig submitted comments to the Office of the Attorney General on behalf of The Sentencing project regarding the United States Department of Justice's proposed rule on CARES Act Home Confinement. A memo issued in the final days of the Trump administration threatens to send around 4,500 people on home confinement back to . It uses the term covered emergency period twice, at the beginning and the end of the section. codified at Rep. No. Neither the BOP nor the DOJ have publicly released or published that memo, however, leaving criminal defense . See id. . During the course of this reconsideration, the Bureau provided OLC with additional materials supporting its consistent interpretation of the CARES Act. 9. Most are working, paying taxes, and supporting themselves and their children. There was no specific period of commitment before a person's confinement would be reconsidered by a judge. Congress also delegated general authority to the heads of executive departments, including the Attorney General, to issue regulations for the government of [the] department, the conduct of its employees, [and] the distribution and performance of its business.[43] If you want to submit personal identifying information (such as your name, address, etc.) Based on BOP's success and emerging evidence about the public safety benefits of electronic monitoring, lawmakers should begin expanding, testing, and evaluating home confinement as a way to help end mass incarceration in the U.S. To help limit the spread of COVID-19, the CARES Act authorized BOP to allow some prisoners to serve their . available at https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9 CDC, For People Living in Prisons and Jails (updated Feb. 15, 2022), See id. documents in the last year, 83 Medication that you are currently on (eg. [20] BOP, 69. This proposed rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year, and it will not significantly or uniquely affect small governments. Initially, prioritization is being made to review inmates who meet the following . 657, 692-93 (2008). 467 U.S. at 843. .). [47] April 21, 2021. [22] Third, the FSA created an incentive for eligible inmates to participate in programs shown to reduce their risk of recidivism by allowing individuals to earn time credits, which may be used for earlier transfer to prerelease custody, including home confinement, notwithstanding the time limits included in 18 U.S.C. Federal Register. These indications of congressional intent further bolster the Department's view that any ambiguity in the CARES Act should be read to provide the Director with discretion to allow inmates placed in home confinement who have been successfully serving their sentences in the community to remain there, rather than return such inmates to secure custody Document Drafting Handbook When an inmate is placed in home confinement, he or she is not considered released from the custody of the Bureau of Prisons; rather, he or she continues serving a sentence imposed by a Federal court and administered by the Bureau of Prisons. et al. prisoner may be placed in home confinement. See id. [66] 3624(c)(2) as the Director deems appropriate. Individuals in close contact with an infected persongenerally less than 6 feet apartare most likely to get infected. See Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency, April 3 Memo at 1. Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. CARES Act inmates who remain in home confinement after the covered emergency period would continue to be subject to these requirements until the end of their sentences, and possibly into a term of supervised release. 64. For all of these reasons, the Department believes that it is not only statutorily authorized, but also operationally appropriate for the Director to have the discretion to allow individuals placed in home confinement under the CARES Act to remain in home confinement after the end of the covered emergency period. Such cost savings were among the intended benefits of the First Step Act.[56]. [19] documents in the last year, 285 The goal of this expanded authority was obvious: prevent the spread of COVID-19 in prisons. (July 22, 2022) Federal Defenders Organization memorandum, CARES Act Home Confinement Revocations (August 3, 2022) - Thomas L. Root. In the alternative, written comments may be mailed to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534. 41. v. Indeed, of the nearly 5,000 inmates placed in home confinement under the CARES Act, as of January 8, 2022, only 322 had been returned to secure custody for any reason, and only eight for committing a new crime. This rulemaking reflects the interpretation of the CARES Act set forth in OLC's December 21, 2021 opinion, is consistent with recent legislation from Congress supporting expanded use of home confinement, and advances the best interests of inmates and the Bureau from penological, rehabilitative, public health, and public safety perspectives. 101, 132 Stat. The Department's interpretation of the statute is also consistent with Congressional support for increasing the use of home confinement as part of reentry programming, as the Second Chance Act of 2007 and the First Step Act of 2018 demonstrate. Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic. provides that most people on home confinement should remain there through the end of their sentence. Chevron 1315 (2021); Recently, Congress passed a government funding bill, entitled the Consolidated Appropriations Act of 2022 (2022 CAA). average of $55 per dayless than half of the cost of an inmate in secure custody in FY 2020. 7. 10. 5238. and the resulting increased crowding in prison settings could lead to new COVID-19 outbreaks, including breakthrough cases in fully vaccinated inmates and infections in the most vulnerable prisoners. 5194, 5196-97 (2018). 4001(b)(1), to codify the Director's discretion to allow inmates placed in home confinement pursuant to the CARES Act to remain in home confinement after the covered emergency period expires. at sec. (last visited Jan. 11, 2022). See, e.g., O.L.C. 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