COVID 19, the BOP and CARES Act

On Friday, March 26, 2020, the President signed the “Coronavirus Aid, Relief, and Economic Security Act” or CARES Act into law.  The CARES Act does many things related to economic stimulus.  The CARES Act also authorizes the Attorney General to take several actions regarding the prevention of COVID-19 in the Federal Prison system, as well as granting the authority to the Attorney General to take other decisive action regarding the placement of prisoners into home confinement.  We will cover the act itself, Attorney General Barr’s response and what that means for federal prisoners. 

The Cares Act as it Relates to Prisoners

Section 12003 of the CARES Act states that

“The Secretary [of Health and Human Services] shall appropriately consider, relative to other priorities of the Department of Health and Human Services for high-risk and high-need populations, the distribution of infectious disease personal protective equipment and COVID–19 test kits to the Bureau for use by inmates and personnel of the Bureau. “

CARES ACT, SECTION 12003

Section 12003 goes on to say the following:

(2) HOME CONFINEMENT AUTHORITY.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

CARES ACT, Section 12003

(the “covered emergency period” means the date on which the President declared a national emergency for COVID-19 up until 30 days after the national emergency declaration terminates (March 13 according to this White House Declaration)

So in other words, the BOP now has the ability to give more than 6 months or 10 percent of an inmate’s sentence in home confinement. 

Section 12003 goes on to say the following:

(c) VIDEO VISITATION.— (1) IN GENERAL.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau shall promulgate rules regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates, during the covered emergency period.

CARES ACT, SECTION 12003

Attorney General Response to CARES Act 

On March 26, 2020, in a memorandum to the Director of the Bureau of Prisons, Attorney General Barr gave guidance regarding how the CARES Act should be carried out:

Attorney general Barr indicated that the Bureau of Prisons is to consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement and the following non-exhaustive list of discretionary factors:

• The age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
• The security level of the facility currently holding the inmate, with priority given to inmates residing in law and minimum-security facilities;
• The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
• The inmate’s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment under this Memorandum;
• Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;  
• The inmate’s crime of conviction and assessment of the danger posed by the inmate to the community.  Some offenses, such as sex offenses, will render an inmate ineligible for home detention.  Other serious offenses should weigh more heavily against consideration for home detention. 

The Memorandum goes on to state that the BOP medical director or his designee shall make an:

“assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison facility, as well as the risks of COVID-19 at the location in which the inmate seeks home confinement.  We should not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19.  You should grant home confinement only when BOP as determined—based on the totality of the circumstances for each individual inmate—that transfer to home confinement is likely not to increase the inmate’s risk of contracting COVID-19.”

Barr memorandum

Lastly, the memo indicates that ANY INMATE must be placed in a mandatory 14-day quarantine period before that inmate is discharged from a BOP facility to home confinement. This portion is NOT only for inmates released under this prioritized process, but any inmate that is granted home confinement. 

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The BOP memo appears to greatly reduce the number of people who are eligible for more home confinement under the prioritized process explained in the CARES Act.  To be clear, none of that was in the original text passed by congress and authorized by the President.  According to this memorandum the most qualified candidates are likely to be older individuals, individuals with “co-morbidities” such as preexisting heart and lung conditions, individuals in low or medium prisons with a minimum risk of recidivism under PATTERN with good conduct free of violent or gang-related activity.  If you believe that you meet this definition then I urge you to reach out to your case managers and ask for immediate home confinement placement pursuant to the CARES Act.   

If you do not believe that you meet this or you have been denied home confinement for any reason and you believe that you have extraordinary and compelling circumstances including anything that could make you more vulnerable to COVID-19 then I recommend that you seek a reduction in sentence under 18 USC 3582(c)(1)(A), the “Compassionate Release” guidelines.  As we have stated before, you start this by writing a letter to the warden of the Prison.  A motion for relief under 3582 is ultimately up to your district judge as opposed to the BOP.  If you have further questions on this then please reach out to our office. 

Questions About the CARES Act and Compassionate Release

Can I file a Compassionate Release with the Courts?  

The short answer is yes. You can request a compassionate release/reduction in sentence based on anything that is “extraordinary and compelling.” I am not going to say whether you should or should not seek relief, but I will offer some opinion on the matter.

For those that are considered in the “at-risk” category as described above, I believe making such a request would be appropriate. However, there are some caveats.

First, it should be understood that nothing moves quickly in the federal system. Seeking compassionate release takes time, and there is a possibility that the crisis could subside before a final decision is rendered. For example, a compassionate release request submitted to the institution is given 30 days for a response. If no response is received within 30 days, then the individual may seek 18 U.S.C. 3582(c)(1)(A) relief in the district court. As you all very well know, district courts are not exactly known for their quick turnaround time.

Additionally, if the BOP denies a request for compassionate release within that 30-day window, then the individual must complete their administrative remedy process before the district court has jurisdiction. That process alone can take several months to complete.

I am not telling anyone this to dissuade them from seeking compassionate release. Rather, I am simply relaying facts that any individual should consider in this situation. Every person’s case is going to be different. If you want to discuss the specifics of your case with me, and whether you should seek relief in light of these recent developments, please e-mail me at [email protected] to do so.

Can I file an Emergency Motion with the Court?  

This is a question I have received several times. As discussed in the example above, the district court does not have jurisdiction under 18 U.S.C. 3582(c)(1)(A) unless the request for compassionate release/reduction in sentence is initiated in the institution first. Filing a motion without first submitting a request to the BOP under section 3582(c)(1)(A) will more than likely result in dismissal without prejudice.

That being said, there may be instances where completing one’s administrative remedies would be an exercise in futility. Under such circumstances, it may be possible to bypass the administrative remedy process. However, this should be determined on a case-by-case basis. Again, if you would like to discuss this with me, please e-mail me at [email protected].

How is my Pending Case Being Affected?  

As I’m sure you’ve all heard from friends and loved ones, many counties across the country have implemented emergency measures to help slow the spread of the virus. This includes the closure of all non-essential businesses and, in many cases, a shut-in mandate preventing people from leaving their homes (with a few exceptions). This has led to several federal courts suspending in-person appearances in the form of jury trials, evidentiary hearings, and oral arguments (arrests and arraignments are still occurring as normal). Some of these hearings will be handled electronically as stated above.

However, because most courts now utilize electronic filing, STATUTE OF LIMITATIONS DEADLINES ARE STILL IN EFFECT. If you have a statute of limitations deadline coming up for your appeal, petition for writ of certiorari, 2255, etc., this deadline is unlikely to change. Similarly, if the court has issued a deadline for your reply brief (or the government’s reply), this date is also unlikely to change, unless a request for an extension is granted. Again, every district varies, so it is important to contact your attorney and determine the status of your case.

Biden White House:  CARES Act Individuals Not Returning to Prison

The Department of Justice has had a change of heart and will leave the decisions about returning to prison on an individual basis.

Attorney General Merrick Garland delivered great news to many formerly incarcerated persons who are home on CARES Act relief on Tuesday, December 21, 2021.  Garland indicated that the Justice Department would no longer require all individuals on home confinement under the CARES Act to return to prison at the end of the national emergency.  In doing so, the DOJ engaged in a rare reversal of a previous opinion.

How we got here: the CARES Act, Home Confinement and the DOJ Memorandum

CARES Act Grants Home Confinement to Certain Prisoners

As many of you know, in March of 2020, Congress passed the CARES Act.  While most Americans considered the CARES Act as the economic stimulus bill, it also served as a way for inmates to be sent to home confinement during the COVID-19 pandemic.

Under normal circumstances an inmate can spend lesser of the last 6 months or 10 percent of their sentence in home confinement.  The CARES Act changed this by removing those limits.  Under the text of the CARES Act, there are no limits on the amount of home confinement that a person could receive.  In other words, a person could spend their entire sentence on home confinement assuming that their sentence started and ended during the national COVID-19 emergency.  While the Attorney General and the Bureau of Prisons did put limitations on who could receive CARES Act relief, this was still a useful tool to reduce the density of the prisons during the pandemic.

While individuals on CARES Act home confinement were able to serve their time at home, a new host of challenges befell them.  Individuals on home confinement were subject to check-in calls with no margin for error, strict testing, and electronic monitoring.  There are several stories online of CARES Act recipients being ordered to return to prison for noncompliance of the terms of CARES Act home confinement.

There was nothing in the CARES Act about what would happen when the COVID pandemic ended.  This led many to speculate that the Bureau of Prisons would be able to order all the individuals on home confinement back to prison upon the cessation of the national emergency.  Members of the Senate Judiciary Committee indicated that this was not their intent, but no action was taken by congress to remedy the situation.

The DOJ January 15, 2021 Memo: Inmates on CARES Act relief must return to prison

On January 15, 2021, days before the presidential transition, the outgoing Department of Justice prepared a memo titled “Home Confinement of Federal Prisoners After the COVID-19 Emergency.”

In that memorandum, the DOJ indicated that the CARES Act was to provide “a variety of forms of temporary emergency relief to address a once-in-a-century global pandemic,” that it would be unprecedented to allow home confinement to last years or even decades, that congress would not have altered the structure of home confinement beyond the emergency circumstances without saying so, and that ending extended placements was a better fit within the goals of the CARES Act.

The January 15th memorandum also stated that the expiration of CARES Act home confinement authority 30 days after the cessation of the national emergency was evidence of congressional intent to return individuals to prison. Finally, the memo reasoned that once the national emergency was over, the Bureau of Prisons lacked the ability “to place” individuals in home confinement:

“We concluded that “to place” in the context of BOP’s home-confinement authority was best read as connoting an ongoing action that required ongoing legal authority, and not just authority to create an initial home-confinement placement.” 

The December 21, 2021 Memo

BOP Discretion

The December 21, 2021 Memo indicates that the Bureau of Prisons (BoP) was of the opinion that the CARES act is “‘most reasonably interpreted’ to give the Bureau discretion over which inmates to return to facilities and which to leave in home confinement at the end of the emergency period.”  Further, the BoP emphasized that the CARES Act gives the BoP the authority to lengthen terms of home confinement, not the authority to let prisoners remain in home confinement. In other words, the BoP believes that after the national emergency they will not be able to put new people on CARES Act relief, but they would be able to continue with the people that are already there.

The memo goes on to say that extended periods of home confinement are no longer unprecedented, pointing at the Elderly Offender Home Detention Pilot Program and the Evidence Based Recidivism Reduction Program of 18 U.S.C. 3264(g).

The memo continued that the BoP would not ordinarily return a prisoner from home confinement to secure custody without a reason and the “widespread return of prisoners without a disciplinary reason would be unprecedented.”  According to the BoP in this memo, allowing them to have the discretion to return prisoners to secure custody would let the Bureau determine if there is an actual penological reason to do so.  Further, the BoP would be able to set criteria about when to return a prisoner to secure custody.

“Lengthen” vs “Place”

This memorandum states that the single change in the CARES Act is a change that gives the authority to “lengthen” the amount of home confinement.  The memo states that “lengthen” is a discrete act.  Once you lengthen something then no further action is typically required.  The memo further states, “Nothing in the CARES Act or any other statute convinces us that the expiration of the power to lengthen home-confinement placements necessarily operates to shorten home-confinement placements that were already lawfully lengthened.”

The previous memo indicated that the BoP would lose the ability to “place” someone in home confinement and that “to place” someone in home confinement required ongoing action. However, the December 21, 2021 memo reads differently:

“Section 12003(b)(2), however, specifically addresses only the lengthen-ing of the period of home confinement. The legal authority to ‘place’ instead derives from section 3624(c)(2) (“[t]he authority under this sub-section may be used to place a prisoner in home confinement”), and that power continues to exist after section 12003(b)(2) ceases to be operative. Section 12003(b)(2) removes the time limits from section 3624(c)(2) and authorizes the use of that ongoing authority for a lengthened period. Appropriately focusing on the verb ‘lengthen’ diminishes the importance of the sense in which the verb ‘place’ is used, because even if ‘place’ is meant to imply a continuing process, the authority for the entirety of that extended placement was created when its duration was lawfully ‘lengthened.‘”

The 30-day grace period

The January 15th memo indicated that they believed that the 30-day grace period was to get all the inmates back into the prison at the end of the covered emergency period. However, this new memo specifies there could be other reasons for that 30-day period such as finishing the processing of home confinement placements, for the BoP to reorient their resources, or for the BoP to handle administrative issues.

Ultimately the memo calls for the BoP to have the discretion to recall prisoners only when penologically justified.

My Thoughts: What Should You Do?

One thing that is striking to me in this memo was the fact that the DOJ gave so much deference to the Bureau of Prisons and their internal report.  This memo notes that the Bureau of Prisons believed that they should have this discretion in January, when the previous memo was written.

It is also striking that this memo explains multiple times that “BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.” It is unclear who would consider engaging in litigation to send so many inmates back to prison.  The Grinch?  Mr. Scrooge?  We cannot say.

I will also note how remarkable this departure is from the previous memorandum and how rare this is.  Indeed, the DOJ has upheld decisions from the previous administration, noting precedent and deference.

If you or a loved one are already on home confinement, then this could be a rare opportunity to serve the rest of your sentence at home instead of in prison.  Be sure to work with the appropriate persons to make sure that you are not giving them a penological reason to send you back to prison.

You may still want to consider compassionate release or clemency, especially if you are having problems with your liaison staff or if you have a term of home confinement that would extend beyond 2024.  Changes in power are always possible and memos can be abandoned or changed.