Federal Bureau Of Prisons Set To End Home Confinement Under CARES Act
By Walter Pavlo - Forbes
The White House is planning to end COVID-19 emergency declarations on May 11, 2023, marking the end of various programs including one that allowed federal prisoners to serve a portion of their prison term on home confinement.
Starting in early 2020, COVID-19 changed our lives. For those who were prisoners during the pandemic, the Federal Bureau of Prisons (BOP) was given the authority by Attorney General William Barr to manage prison populations to prevent contagion and to move more vulnerable prisoners to home confinement. The initial priorities were to target prisons where COVID-19 was ravaging prisoners and staff. The program began in April 2022 with mostly minimum security prisoners, who had underlying health conditions, being transferred to serve their prison term on home confinement. That program continues but the end of the emergency declaration means that the program will be coming to end shortly after the May 11th date.
On June 21, 2022, the Federal Register issued a call for comments on a rule as how the BOP would end the program of transferring prisoners to home confinement upon the end of the CARES Act. The final rule should be published any day but the draft rule called for the end of CARES Act home confinement 30 days after the end of the emergency. The rule as it is written now states, “That authority under the CARES Act exists during the period for which there is a declaration of national emergency with respect to the COVID– 19 pandemic and for 30 days after the termination of that declaration, provided that the Attorney General has made a finding that the emergency conditions materially affect the functioning of the Bureau of Prisons.”
CARES Act home confinement placements have numbered over 12,000 prisoners and has been quite successful. Many of those prisoners on home confinement will have completed their sentence in the next 6 months but some will still have years to serve at home rather than in prison. There are 593 inmates with release dates in 5 years or more; and 27 inmates with release dates in 10 years or more according to the Federal Register proposed final rule.
The success of the program is well-known and documented. Few of the prisoners transferred to home confinement encountered brushes with the law or even violated the strict terms of home confinement. Most all prisoners have an ankle bracelet and are subject to other location monitoring. One minor infraction and the person was returned to prison, but that was rare. According to the BOP, as of March 4, 2022, a small percentage of prisoners placed in home confinement pursuant to the CARES Act—357 out of approximately 9,500 total individuals— had been returned to secure custody as a result of violations of the conditions of home confinement. Of this number, only 8 were returned for new criminal conduct (6 for drug-related conduct, 1 for smuggling non-citizens, and 1 for escape with prosecution). It ranks as one of the most successful programs in BOP history when it comes to returning prisoners to the community.
The Biden administration has often touted its efforts to decrease the federal prison population. The most influential action taken thus far was filling long vacant positions at the US Sentencing Commission. Another was the appointment of a new BOP Director, Colette Peters, who has prioritized the implementation of the First Step Act (FSA), which provides incentives for prisoners to reduce their time in prison. Peters represented a change from past BOP directors who came from within the scandal plagued agency. She was formerly Director of Oregon Department of Corrections.
The BOP has also been tasked to take steps to reduce the population of older prisoners. FSA gave the BOP the opportunity to launch an Elderly Offender Program which allows the BOP to transfer eligible prisoners to home detention if they are sixty years old or older. To be eligible for the program, prisoners must have served two-thirds of their sentence. However, that program has been rendered useless since other incentives under the FSA allow for earlier termination of a sentence or additional prerelease custody (halfway house or home confinement).
Even with Biden’s efforts, the implementation of the FSA and CARES Act placement, the prison population in the BOP has increased since the beginning of the pandemic. The end of the CARES Act still poses a danger to prisoners as COVID-19 spread risks in a communal setting are much higher than that of society at large. In addition, prisons across the country have been subjected to lockdowns and cancellation of visitation to prevent contagion. According to a number of prisoners I have spoken to over the past two years, even the measures taken to reduce COVID-19 spread came with other harsh realities of isolation and mental health stress.
Even prior to this call to end the emergency declaration, the current Department of Justice is limiting the authority of the BOP to do exactly what President Biden promised during his campaign - decrease the the population of the federal prisons. Recent actions, such as giving prosecutors the chance to effectively veto certain home confinement transfers approved by the BOP, have curtailed home confinement transfers over the past few months.
It is unknown if the Biden administration has the ability to extend CARES Act provisions that relate exclusively to the BOP. However, the BOP has nearly 23,000 minimum security prisoners in facilities across the U.S. and many of them are candidates for some other form of supervision, including home confinement.
While we all celebrate the end of this pandemic that has taken the lives of millions worldwide, the success of the CARES Act in federal prison should not be underestimated. A retired BOP executive told me, “The success of CARES Act should, at the very least, provide a learning opportunity for how the agency can do things better.”