CARES Act Possibly Ending Soon

The Story so Far:  The CARES Act Allowed Incarcerated Persons to go Home During the COVID Pandemic

As you know, on January 31, 2020, then-Health and Human Services Secretary Alex Azar Declared a public health emergency. In March, Former President Trump declared the COVID pandemic a national emergency.  Congress, in turn, responded with passing the CARES Act, which was signed by Trump.  The CARES Act, as relevant to this discussion, created a “Covered Emergency Period” where the BOP could send incarcerated persons to serve their sentence on home confinement.  That covered emergency period lasts from the day that the national emergency began until thirty days after the national emergency ends:

“the term "covered emergency period'' means the period beginning on the date on which the President declared a national emergency under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the Coronavirus Disease 2019 (COVID-19) and ending on the date that is 30 days after the date on which the national emergency declaration terminates;”

The Bureau of Prisons put together memoranda concerning when and how to grant relief under the CARES Act and the Justice Department has made multiple decisions about what happens to incarcerated persons once the CARES Act expires.

The National Emergency for COVID-19 has been reinstated several times.  The Reinstatement of the National Emergency has meant that persons could finish their sentences at home. The overwhelming majority of persons who have been released on CARES Act home confinement have served or are serving the rest of their sentences without incident.

This week, the Biden white house announced that the national emergencies would end on May 11.  This was announced after members of the House of Representatives brought forth resolutions to bring the emergency to an immediate end:

“WASHINGTON (AP) — President Joe Biden informed Congress on Monday that he will end the twin national emergencies for addressing COVID-19 on May 11… Biden’s announcement comes in a statement opposing resolutions being brought to the floor this week by House Republicans to bring the emergency to an immediate end.”

Associated Press

(Note:  We have searched the White House website to find any official statement but have found nothing yet, we will update you when we find something).

The impact of the announcement is clear: The ability of the BoP to send inmates to home confinement to finish their sentences under the CARES Act ends no later than 30 days after the National Emergency. This would mean that the max amount of time that the BOP could send someone to home confinement would revert back to 6 months or 10 percent of their sentence, whichever is less.

December 21 BOP Memorandum:  Prosecutor Can be Asked for Opinion in Some Cases:

On December 21, 2022 the BOP put forth a memorandum titled “Home Confinement Criteria.”  The memo indicates that it “provides updated guidance and direction that supersedes the Home Confinement Memo dated April 13, 2021.”  We reached out to the BOP's public information office and determined that the memo was authentic.

The memo explains that the following factors are to be assess in determining inmates who are suitable for Home Confinement under the CARES Act:

(paraphrasing)

-Reviewing the COVID-19 vulnerability of the inmate pursuant to CDC Guidelines;
-Ensuring the inmate has a Minimum or Low PATTERN Risk Score;
-Ensuring the inmate is Minimum or Low Security Level
-Verifying the inmates current offense or prior criminal history is not violent, a sex crime or terrorism
-Ensuring the inmate has a verifiable release plan (verified telephonically)
-Reviewing the inmates institutional discipline record to verify that they have not received a 100 or 200 series incident report in the past 12 months (such persons are not ordinarily eligible)
-Confirming the inmate does not have a current detainer or pending charge
-Ensuring the inmate has not engaged in violent or gang related activity
-Confirming the inmate has served 50% or more on their statutory sentence or has 18 months or less to serve on their sentence and has served 25% or more of the sentence w/o regard to First Step Act Time Credits.
-Community Transmission levels of the home confinement location, the inmates’ prior adjustment on supervised release, etc.

The memorandum also indicated that in situations where the a person needs to go to home confinement “due to factors who is outside the criteria listed above,: they may forward the home confinement referral as an exception case to the Home Confinement Committee (HCC)…for further review.”  The HCC will contact the Assistant U.S. Attorney’s Office for input regarding the request for home confinement. The input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement Decision.

I believe that some people have been referring to this colloquially as “extraordinary review.” While it is not necessarily a new thing, as people have been talking to me about it for months. I will say that this is the first time that I have read that prosecutors could have a say in the matter.

It is worth noting that according to this, prosecutors only get a say if a person is being submitted for community placement “who is outside the criteria listed above[.]”. So if you meet the traditional criteria then the determination does not need to involve the AUSA. However I will say that I am concerned that this may lead to many denials that might have been different otherwise.

Further, referrals should document the following items prior to submission to the RRM office:

Specific type of release residence (house, apartment, etc.)

- List of individuals with whom inmate will be living;
- Any health concerns of individuals in the residence;
- Contact phone numbers of the inmate should he/she be placed on Home Confinement;
- Transportation plan as to how the inmate will be transferred to the Home Confinement location and how the inmate will be transported to the RRC for weekly check-ins.

This means that an inmate seeking home confinement at this point would be wise to have these things to show to their unit team.

Lastly, when persons are denied home confinement under the CARES act, resubmissions should only be submitted for significant changes in circumstances:

“If an inmate is referred or denied for Home Confinement once a review is completed, the appropriate CMA assignment should be entered. Once denied, subsequent requests for Home Confinement should only be submitted if circumstances have significantly changed since the denial decision. Examples of change in circumstances include worsening health condition/illness of the inmate, factors that were not known when the denial decision was made, etc.”

I have had people tell me that they were told that if they were submitted for review and denied that they would not be brought up for review again. I think that is because of interpretations of this paragraph.

So, what now?  What to do before the CARES Act Home Confinement Authority Expires

It is important to know that the end of the national emergency means that the end of release to home confinement under the CARES Act.  It is imminent. And the BoP can begin the process of winding it down or ending it even sooner, especially given this announcement.

If you have never been put in for the CARES Act then now is the time to ask for it. Be sure to have the things that are present in the paragraph above in full detail so that your case can be reviewed as quickly as possible. If you were previously denied, focus your renewed petition on making a case that the circumstances have significantly changed since the denial with your worsening health conditions or factors that were not known at the time the denial decision was made. And if you don’t meet the specific criteria then make a case about why you are still an appropriate candidate.

April 3 Update Joint Resolution Eliminating Emergency Approved by House and Senate

As many of you know, the CARES Act has been used to offer inmates the ability to serve the rest of their time on home confinement instead of inside the walls of the prison. Up until now the authority to send inmates home to serve their sentences on home confinement has been tied to the declaration of the national emergency due to COVID by the President. We have previously indicated that the President was planning to end the national emergency of COVID on May 11.  However, some information that we have recently received indicates that it might end sooner than that.

A Joint Resolution has been filed in the House and Senate. On Congress.gov it is titled “H.J.Res.7 - Relating to a national emergency declared by the President on March 13, 2020.”  The joint resolution says simply:

“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, pursuant to section 202 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on March 13, 2020, in Proclamation 9994 (85 Fed. Reg. 15337) is hereby terminated.”

This Joint Resolution was passed in the House on February 1, 2023 by a vote of 229-197 and passed in the Senate by a vote of 68-23.  Given that both the House and the Senate have voted on it, it could go to the President’s desk any day.

The cessation of the national emergency means that the BOP would lose its ability to send persons home pursuant to the CARES Act 30 days after the cessation. So what this means is that if the President signed this Joint resolution on April 5, then the national emergency would last until May 5.  It all depends on when it would be signed by the President. In the meantime, gey your CARES Act requests in as soon as possible.