Bureau of Prisons Publishes CARES Act Guidance

Director Carvajal’s statement before the Senate Judiciary Committee fueled a search for new guidance from the BOP on home confinement for incarcerated individuals.  The Federal Defenders have retrieved the April 13, 2021 Memorandum concerning home confinement and we will share that with you here.  

HOW WE GOT HERE: COVID-19, the CARES Act and the Barr Memoranda

In March of 2020 the Associated Press reported on the first case of COVID-19 in the federal prison system.  The incarcerated person was housed at the Metropolitan Detention Center in Brooklyn where he was tested for COVID-19 and was found to be positive. Indeed, when we first started considering the impact of COVID-19 on America, my thoughts immediately went to the federal prisons because as Director Carvajal stated in his testimony before the Committee last week, “it is hard to socially distance within a prison.”

Days later, congress passed and Former President Trump signed the CARES Act.  The CARES Act, among other things, created a “covered emergency period” that started on the day that President Trump declared a national emergency for COVID-19 in America. The covered emergency period is set to end at the latest 30 days after the National Emergency Declaration is withdrawn. Current President Joe Biden has extended the National Emergency for another year and Director Carvajal did not indicate in his Senate Judiciary Hearing Testimony that he was looking to end the covered emergency period.  

What followed next were Memoranda from then Attorney General Bill Barr about how the CARES Act would be implemented.  The first Memorandum, published on March 26, indicated that inmates could be sent home for home confinement.  Of particular note was that in the March 26 memo, only individuals with a minimum pattern score and in either a low or medium facility could be sent to home confinement.  

A subsequent memorandum published on April 22, 2020 added criteria to the Home Confinement Analysis.  Specifically that inmates with “who have anything above a minimum score [are] not receiving priority treatment;” and that priority consideration was to go to those inmates who either have served 50% of their sentences or have 18 months or less remaining on their sentences and have served more 25% or more of their sentences.   

Lastly, a BOP memorandum from November 16, 2020 added criteria for consideration for home confinement.  The memorandum stated that the inmates must have clear conduct for the past 12 months, no detainers, that the inmate is at a low or medium security prison that the BOP has a minimum pattern recidivism risk score, and that the inmate has served 50% or more of their sentence or that they gave 18 months or less remaining in their sentences and have served 25% or more of their sentences. 

The April 13, 2021 Memorandum 

During BOP Director Carvajal’s testimony before the Senate Judiciary Committee we learned that the BOP could consider Low and Medium PATTERN scores for consideration.  Many of you sent me messages indicating that there was a new memorandum to be considered.  We received a copy of the text earlier this week from FAMM.  It was independently verified by Keri Blakinger of the Marshall Project.  On Thursday night we found a copy of the same on the Federal Defenders website.  We present the memo to you in full now.  You can download it for yourself here. As a reminder, whether or not a person will actually go home to home confinement is a discretionary matter for the Bureau of Prisons.  

Memorandum for Chief Executive Officers

APRIL 13, 2021

In our ongoing effort to protect the health and safety of staff and inmates during the COVID-19 pandemic, it is imperative to continue reviewing at-risk inmates for placement on home confinement in accordance with the CARES Act and guidance from the Attorney General. This memorandum provides updated guidance and direction and supersedes the memorandum dated November 16, 2020.

The following factors are to be assessed to ensure inmates are suitable for home confinement under the CARES Act:

-Reviewing the inmate's institutional discipline history for the last twelve months

-(Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on home confinement, if in the Warden's judgement such placement does not create an undue risk to the community);

-Ensuring the inmate has a verifiable release plan;
-Verifying the inmate's current or a prior offense is not violent, a sex offense, or terrorism-related;
-Confirming the inmate does not have a current detainer;
-Ensuring the inmate is Low or Minimum security;
-Ensuring the inmate has a Low or Minimum PATTERN recidivism risk score;
-Ensuring the inmate has not engaged in violent or gang-related activity while incarcerated (must be reviewed by SIS);
-Reviewing the COVID-19 vulnerability of the inmate, in accordance with CDC guidelines; and
-Confirming the inmate has served 50% or more of their sentence; or has 18 months or less remaining on their sentence and have served 25% or more of their sentence.

Additionally, pregnant inmates should be considered for viability of placement in a community program to include Mothers and Infants Together (MINT) programs and home confinement. 

If the Warden determines there is a need to refer an inmate for placement in the community due to COVID-19 risk factors who is outside of the criteria listed above, they may forward the home confinement referral to the Correctional Programs Division for further review.

Referrals to a Residential Reentry Management (RRM) Office must be made based on appropriateness for home confinement. This assessment should include verification that the conditions under which the inmate would be confined upon release would be more effective in protecting their health than continued confinement at their present place of incarceration.

To this end, the inmate must be provided education on CDC guidance on how to protect themselves and others from COVID-19 transmission. This education includes, but is not limited to: hand washing, social distancing, wearing of facial coverings and self-assessment for signs and symptoms of COVID-19. Inmates should understand how home confinement provides the opportunity to practice optimal infection control measures, which may mitigate existing risks, based on rates of transmission in the local area, and exercising best practices. The information (education) provided to the inmate must be documented on the BEMR exit summary.

All referrals should clearly document the review of the following items prior to being submitted to the RRM office:

-Specific type of release residence (House/Apt/Group Home 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; and,
-Transportation plan as to how the inmate will be transferred to the home confinement location.

Any questions as to eligibility in relation to the release plan will be referred to the Residential Reentry Management Branch Administrator.  

Inmates determined to have a viable release residence will be further screened by Health Services and a determination made as to whether they require frequent and ongoing medical care within the next 90 days. If frequent and on-going medical care is required then:

-Health Services staff will coordinate with RRMB' s Health Services Specialists to determine if the inmate's medical needs can be met in the community. RRMB will establish follow-up care prior to inmate transfer. The inmate must transfer with at least 90 days of any prescribed medications.
-If the inmate's medical needs cannot be met in the community, then the inmate will remain at his/her current institution. (If the inmate does not require frequent and ongoing medical care then the referral will be processed.)

If an inmate is referred or denied for home confinement once a review is completed, the appropriate Case Management Activity (CMA) assignment should be loaded.

Case Management Coordinators must track all inmates determined to be ineligible for CARES Act home confinement or the Elderly Offender Home Confinement Pilot Program and ensure the appropriate denial code is entered in SENTRY. Reports outlining the reason for denial must be submitted to the Correctional Programs Administrator in the appropriate Regional Office.

If an inmate does not qualify for CARES Act home confinement under the above criteria, they should be reviewed at the appropriate time for placement in a Residential Reentry Center and/or home confinement consistent with applicable laws and BOP policies.

Jeremy's Notes on the Memorandum

The memorandum itself is good. I am glad the the Bureau of Prisons is reconsidering their criteria. These criteria look good and appropriate. But the next step is to evaluate for competency and transparency. How many people are actually being released to home confinement? How many are being denied and why? What are the staff saying that are denying these? We know for a fact that there have been times that the Justice Department has made it harder for inmates to be released on CARES Act relief. So that transparency will be important here. Of particular note here will be whether the BOP will release people in prisons that report no or few cases. Inmates have called our office in the past stating that the BOP has refused release stating that there are more cases outside the prison than inside.