Elderly Offender Home Detention Program

On December 21, 2018 President Trump signed the FIRST STEP Act into law.  The FIRST STEP Act had many provisions in it, including the following in Section 602:

SEC. 602. Home Confinement for Low-Risk Prisoners

Section 3624(c)(2) of title 18, United States Code, is amended by adding at the end the following: ‘‘The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.’’

This means that 18 U.S.C. 3624(c)(2) now reads like this:

(2) Home confinement authority.—

The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.(emphasis added)

Our office sought a Freedom Of Information Act (FOIA) Request back in June requesting several documents. That FOIA can be found HERE.

In July, the Bureau of Prisons (BOP) responded with several pages.  Ten of those pages were a program statement about home confinement. Click HERE to view them.

WHAT IS HOME CONFINEMENT?

Page 4 of the program statement indicates that “Home detention has the same meaning given the term in the Federal Sentencing Guidelines as of April 9, 2008, and includes detention in a nursing home or other residential long-term care facility.”

The United States Sentencing Guidelines, § 5F1.2 note 1, states that “Home detention" means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.

In the Bureau of Prisons, an inmate can be sent “home” for the end of their sentence to acclimate back into society, find a job and get ready to serve whatever term of supervised release they have.  The maximum amount of time that a person can spend on home confinement is six months or ten percent of their sentence, whichever is less.  Generally speaking, the Bureau of Prisons is responsible for how much home confinement a person actually gets.

What is the Elderly Offender Home Detention Program?

The Elderly Offender Home Detention Program is a program by which an “Eligible Elderly Offender” or an “Eligible Terminally Ill Offender” can go home for the rest of their sentence.

An “Eligible Elderly Offender” is defined as an offender in the custody of the BOP who...

1. Is not less than 60 years of age;
2. Is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16 of Title 18), sex offense (as defined in section 20911(5) of this title), offense described in section 2332b(g)(5)(B) of Title 18, or offense under chapter 37 of Title 18, and has served 2⁄3 of the term of imprisonment to which the offender was sentenced;
3. Has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in paragraph (2), above.
4. Has not been determined by the Bureau, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in paragraph 2 above;
5. Has not escaped, or attempted to escape, from a Bureau of Prisons institution (to include all security levels of Bureau facilities);
6. With respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and
7. Has been determined by the Bureau to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.

NOTE: The 6^th and  7^th criteria are solely up to the Bureau of Prisons.

An Eligible Terminally Ill Offender is an offender in the custody of the BOP who:

1. Is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of Title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. § 20911(5))), offense described in section 2332b(g)(5)(B) of Title 18, United States Code, or offense under chapter 37 OM 001-2019 4/4/2019 4 of Title 18, United States Code;
2. Satisfies the criteria specified in paragraphs 3 through 7 included in the Eligible Elderly Offender definition, above; and
3. Has been determined by a medical doctor approved by the Bureau, i.e. Clinical Director of the local institution, to be:
   • in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or
   • diagnosed with a terminal illness

THE BOP’S RECOGNITION OF THE IMPORTANCE OF HOME CONFINEMENT

Page two of this document has the following at the top of the page:

"The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements."

Further Policy Concerning the Elderly Offender Program

Pages 2-5 give more information about the Elderly Offender Home Confinement Program.

The scope and purpose of the pilot is explained, the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention “upon written request from either the Bureau staff, or an eligible elderly offender or eligible terminally ill offender.”

Under paragraph (c), the waiver indicates that “the Bureau is authorized to waive the requirements of section 3624 of Title 18 [home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months] as necessary to provide for the release of some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention for the purposes of the pilot program.” So in other words, an eligible elderly offender is possible to spend more than 6 months or 10 percent of their sentence on home confinement if selected for this program.

Under Paragraph (d), it is explained that “[a] violation by an eligible elderly offender or eligible terminally ill offender of the terms of home detention (including the commission of another Federal, State, or local crime) shall result in the removal of that offender from home detention and the return of that offender to the designated Bureau institution in which that offender was imprisoned immediately before placement on home detention as part of this pilot, or to another appropriate Bureau institution, as determined by the Bureau.”

From there the program statement gives the definition of eligible elderly offender and eligible terminally ill offender as well as the procedure for determining who is eligible under this program.

For Eligible Elderly Offenders, a BP-A0210, Institutional Referral for CCC Placement, will be completed. Staff should refer all inmates meeting criteria (1) through (5) in the definition of Eligible Elderly Offender, above. Reentry Services Division (RSD) staff will determine if the inmate meets criteria (6) and (7) under the definition. A clear annotation will be made on the referral packet that “This inmate is being referred for Home Confinement placement under the provisions contained in the First Step Act for placement of eligible elderly offenders and eligible terminally ill offenders.”

For Eligible Terminally Ill Offenders, to include debilitated offenders that may need placement in nursing home, intermediate care facility, or assisted living facility, institution staff will refer the inmate for a Reduction in Sentence (RIS) under Program Statement Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). If not appropriate for a RIS, the Office of General Counsel will provide RSD the RIS packet for consideration under this pilot.

From there, the program statement goes into the addendum.  Most notable is the use of 18 U.S.C. § 16, including 16(b) even though it was recently struck down in Dimaya vs. Sessions.

What does any of this mean?  How can this help my loved one possibly get out of prison?

1. Inmates and their families should seek home confinement if the inmate’s needs would be better suited at homeThe bottom of Page 1 and the top of Page 2 state:“The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”If you and your loved ones feel that they meet those requirements then I strongly suggest that your loved one reach out to their unit team and ask to be referred to the maximum amount of time under the law (6 months or 10% of your sentence whichever is less). You would want to provide information as to why your needs would be better met outside of a halfway house rather than inside.
2. Inmates should seek the maximum amount of Home Confinement regardless of RDAP.There is no mention of halfway house or RDAP or anything like that in the above program statement.  We suggest asking for a combination of the two in such a manner that gets your loved one the maximum amount of time possible outside so that they can get back on their feet.  In the same vein, if your loved one has completed RDAP and as such, their halfway house time is capped at some number, I would consider asking for the maximum amount of home confinement.
3. There are no known limits on the number of inmates admissible into the Elderly Offender Home Detention ProgramThe Elderly Offender Home Confinement Program is not bound by the 10% or 6 months rule in 18 USC 3624(c)(2).  Furthermore, the program statement discusses the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention.  So as of now there are no known limits to the amount of eligible elderly offenders that can take part in the program.

If your loved one qualifies for Compassionate Release or for the Elderly Offender Program, please reach out to our office to discuss how we might be able to help you.