Federal Inmates on Home Confinement pursuant to the CARES Act May Have to Return to Prison

UPDATE: January 4, 2022: ON DECEMBER 21, 2021, THE DOJ ANNOUNCED THAT THE FEDERAL BUREAU OF PRISONS NEED NOT RECALL ALL THOSE ON HOME CONFINEMENT PURSUANT TO THE CARES ACT TO FINISH OUT THEIR TERMS IN A CONFINED FACILITY. RATHER, THE DOJ HAS ANNOUNCED THAT THE BUREAU HAS DISCRETION TO ALLOW INMATES TO REMAIN ON HOME CONFINEMET FOR AN EXTENDED PERIOD. FINALLY, SOME GOOD NEWS IN THESE TIMES OF UNCERTAINTY.

As many know, Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”), enacted in response to the COVID-19 pandemic, granted the Federal Bureau of Prisons discretion to place medically vulnerable inmates on home confinement. Those included elderly and others with various medical conditions that would leave them in danger of serious illness or death in the event they contracted COVID-19. In light of COVID-19 and the crowded conditions and lack of an ability to “socially distance,” the Bureau transferred approximately 4000 such inmates to home confinement. Clearly, this was not a “release” as many in the media erroneously reported. For many of these federal offenders, their sentence will have been completely served by the time the pandemic is abated or ends. However, for many it will not----and these offenders face the very real possibility of being returned to prison. In the waning days of the Trump Administration, the Department of Justice issued an opinion clearly stating that when the COVID-19 emergency ends these inmates must be returned to prison to serve out the balance of their sentences. When that will be is anyone’s guess, but in light of recent COVID-19 trends and the numerous variants, it may be a while, but no one knows for sure. Worse yet, the Biden Administration has agreed with the original DOJ opinion that read “We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities.” One of the problems that we see is that these federal offenders were already determined by the Bureau to pose a low risk of reoffending and of no risk to the community by their transfer to home confinement. What sense would it make to place these low-risk, non-violent offenders back in prison? None in our opinion. Certainly, legislation clarifying the CARES Act could be used to correct this looming problem. Court’s will also be called on in an effort to correct this problem. Many of these inmates can use the “extraordinary and compelling” justifications for a Compassionate Release as amended by the First Step Act of 2018. If you have any questions, please feel free to call us at 615-696-6153