Can the BOP Go Back and Get Everyone at Home on the CARES Act?

Doug Berman's Sentencing Law and Policy, as well as Walter Pavlo at Forbes, are sounding the alarm about a return to prison for incarcerated persons who are serving their terms on home confinement under the CARES Act:

A Refresher on the CARES Act vs. Compassionate Release

In the early days of the pandemic, 5000 years 8 months ago, Congress passed and President Trump signed the CARES Act, which among other things, allowed the Bureau of Prisons to grant more home confinement than what is normally allowed (normally the most a person can get for home confinement is six months or ten percent of their sentence whichever is less).

When we first read the text of the CARES Act, our office had questions about it. The portion of the CARES Act that assists federal inmates gives complete control of the decision making process to the Bureau of Prisons. In other words, the BOP decides who gets sent on home confinement and who doesn't. Our concerns immediately bore themselves out as the Attorney General set the criteria for who would be released pursuant to the CARES Act and then changed how those criteria would be judged.

But we also had concerns about the circumstances in which individuals on CARES Act relief are monitored. We have fielded calls from individuals who have stated that in their district, individuals on CARES Act relief BOP can send someone home on CARES Act relief back to prison. In some of the cases, we've been told that they are monitored by the probation department, who will not monitor them because they have more than a year remaining on their sentence. In other districts we have heard different information.

Because the BOP has the sole discretion on who to refer to the program, the BOP also has the sole discretion on who is removed from the program and re-incarcerated. This happens with little oversight and accountability. We recommend that individuals seek compassionate release instead; if granted the judge can reduce a sentence down to the point where there are no days left. When appropriate, the court can add the remaining time that might have been on a sentence to a term of supervised release and add a special condition of home confinement to that additional term.

The Precautionary Tale of Azam Doost

After a seven-day trial in September 2018, Azam Doost was found guilty of fraud and false statements on loan applications. Doost’s company, Equity Capital Mining LLC, received a loan of $15.8 million in 2010 from the Overseas Private Investment Corp., a U.S. government agency. The jury concluded he used the funds to enrich himself. U.S. District Judge Amit P. Mehta (District of Columbia) sentenced Doost to 54 months in prison. Just 10 months into his prison term at the minimum security satellite prison at USP Atwater in California, Doost asked for compassionate release based on health reasons. On August 12, his case was heard before Judge Mehta to determine whether or not he should be released. The transcript of the arguments on August 12 revealed information about those currently on home confinement.

Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section argued against Doost’s release to Judge Amit P. Mehta for a variety of reasons but it was his comments on home confinement that were telling. According to the transcript, McCarthy made a comment regarding the possibility of Doost being considered for home confinement saying;

“So it's my understanding that Mr. Doost is being re-evaluated once he crosses that threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over, unlike compassionate release, which is just a — which is a release, essentially, to home confinement.”

Walter Pavlo, Forbes

It is unclear on what authority McCarthy can say what will happen once the pandemic is over. It is also unclear what discussions the Department of Justice has had about CARES Act recipients once the pandemic is over. Will the DOJ order that CARES Act recipients go back to prison or will they be able to serve out the rest of their terms on home confinement? And what would that look like? How would they be processed if they were to come back Would the BOP give people time to prepare or would they just tell them "come back by (date) or you'll get charged with escape?"

Pavlo continues with an update:

UPDATE: Received a comment from Kevin Ring, president of FAMM, regarding this article and his sources at the White House state that a return of inmates from home confinement back to prison will NOT be happening.

Walter Pavlo, Forbes

It is unclear who was talked to and what was said that would cause this. After being a criminal lawyer for 12 years I have come to expect the worst from the carceral state so under normal circumstances I would be hard pressed to believe this.

How would the Presidential Election Affect this?

As many of you know, there was a Presidential Election in the United States this past Tuesday. As of now, Democrat Joe Biden has been projected to be the winner.

The President picks the people to be in their cabinet, that is, the chiefs of different departments that report directly to the President. This includes the Department of Justice, which is currently ran by Bill Barr. Should the election counting continue in its present vein and survive any legal challenges that come, Joe Biden will be the President-Elect and will be allowed to choose a new Attorney General. As chief law enforcement officer in the country, the Attorney General will be able to select their subordinates, including United States Attorneys. This could lead to a difference in policy around CARES Act recipients.

In plain English, if Joe Biden were to pick someone like Beto O'Rouke or Amy Klobuchar to be his Attorney General, they might say that individuals who are home on CARES Act relief can stay as long as they follow all the terms and conditions of their home confinement. These things happen rather quickly after the President is sworn in; Jeff Sessions was confirmed by the Senate around 20 days after President Trump was inaugurated. Eric Holder, Attorney General to President Obama, was confirmed on a similar timetable.

Compassionate Release Relief is Still the Best Option

In light of all this we still believe that seeking compassionate release is still the best option. A compassionate release can serve as a reduction in sentence down to the point where the person has zero days left on their sentence. This would mean that a person would not be subject to the will of the Attorney General's Office or the changing policies of the Bureau of Prisons.