In Focus: Lives that Hang in the Balance Under an Uncertain Future for the CARES Act

As referenced in a previous post, the Bureau of Prisons has no incentive to keep inmates serving at home away from prison. This is evidenced by the Biden Administration essentially cosigning a memo (edit:  but later changing position) put out by the Trump Administration before the transfer of power that inmates whose sentences run longer than the pandemic must return and the specific case of Gwen Levi.

In a New York Times article, the Department of Justice under Merrick Garland has agreed with the Trump Administration Memo that says at the conclusion of the pandemic emergency status, those inmates serving in home confinement are likely to be returned to prison to serve the remainder of their sentence.  (EDIT TO ADD) Garland later changed his position and indicated that those out on CARES Act relief would not be going back to prison.  However, there is no way to know who the next president will be, what sort of attorney general they will appoint and whether that attorney general will have the same policy about the CARES Act.

This could affect around 4,000 federal prisoners, some of whom have partially reintegrated back into society, finding jobs and enrolling into school. These people who have made positive progress with the time they have been given may be forced to give all that back up if action is not taken by congress.  Two specific cases are Wendy Hechtman and Gwen Levi.

Wendy Hechtman:  Doing her Best to Comply

Ms. Hechtman was released as a part of the CARES Act. Ms. Hechtman was sentenced to 15 years for a non-violent drug charge and had served 3 of those years before her release due to COVID. Ever since her release she has been attending weekly drug counseling sessions and has gotten a job helping those who have gotten out of prison to reintegrate back into society. However, her bit of freedom could be taken away from her if the Biden Administration continues to follow the Trump Justice Department Memo.

Gwen Levi:  From Computer Class Back to Prison and then Compassionate Release

The next case is Gwen Levi and her situation was more immediate. Ms. Levi, 76, was serving a 24-year sentence, also a non-violent drug charge and had served 16 years at the time of her release to home confinement. She had taken the time to volunteer with different prison advocacy groups in the hopes that a more permanent, paying job would come along. She had also enrolled in word-processing classes. During the class she would silence her phone. Then one day, she had left class to see that she had multiple missed calls from her prison supervisor.

A few days later she was brought in again and awaiting transfer to a federal prison. Because she did not answer her phone during the computer class, she was classified as an escapee and was ordered to be returned to prison to serve the remainder of her sentence.  She tells her story in the Washington Post:

I had signed up for a computer class administered by the Maryland Justice Project, which was being held in a building owned by the Baltimore City Police Department. I didn’t know the building was designed to prevent GPS and other signals as a security measure, so the ankle monitor I was required to wear lost its signal.

My case manager called me, but unfortunately, I had turned my phone off during the class to better pay attention.

Though I’d attended a class already, when I turned my phone back on and I spoke to my case manager, they informed me that I’d been labeled an “escapee.” I had to return to prison.

After a few days though, a judge ordered Ms. Levi to be given compassionate release and she is once again at home.

The lack of discretion is particularly egregious in a situation like this where here location was easily determinable and she was more than likely watched every second.

Jeffrey Martinovich:  Subject to Prison after a year of home confinement for a phone call

Jeffrey Martinovich was found guilty of nonviolent financial fraud crimes and was sentenced to 13 years and 8 months.  Martinovich was released due to the CARES Act and had served one year at home.  He had been fielding daily phone calls in order to check in.  One night he did not answer his check-in call, indicating he had not heard the phone ring:

But one night in late May, the halfway house couldn’t reach him: The former Newport News investment broker didn’t answer the phone at his Norfolk home, saying later that he didn’t hear the calls.

The Federal Bureau of Prisons has deemed that an “escape” from Martinovich’s home detention in a 2013 federal financial fraud case. They took him into custody the next day to serve the rest of his sentence — another four years — in prison.

Martinovich has filed for a writ of habeas corpus indicating that the electronic monitoring records placed him at his home all night.

Update:  According to Yahoo News, Martinovich will be returning home soon:

After a mix-up over an alleged escape, the Federal Bureau of Prisons soon will release a former Newport News investment broker back to home confinement.

...

The petition said the Bureau of Prisons’ own evidence — GPS tracking information from Martinovich’s ankle monitor — showed he never left his home in Norfolk’s Ghent section on May 31.

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Two days later, Martinovich’s fiancée, Ashleigh Amburn, got a call from the Bureau of Prisons saying the escape finding had been vacated, meaning he would be going back to home confinement.

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But he said he spoke to a BOP attorney on Wednesday who gave him much more confidence. That lawyer, he said, “made it clear that he is coming home.”

“She sounded very credible,” Kelleter said. “And she gave this lengthy explanation of the Rube Goldberg Machine of the BOP — that they had to go through 10 different steps, and they have to figure out how to communicate this to the Marshals. But basically, she said he is coming back to home confinement.”

The BOP would not speak about the case this week, and would not independently confirm Tuesday where Martinovich will serve his sentence.

Eva Cardoza:  Leaving Behind a Loved one with Cancer

NPR reported recently on the Story of Eva Cardoza, a CARES Act recipient who was sent back to prison after a positive test for marijuana:

In June 2021, Alvarez and Cardoza took a 90-minute cab ride into the Bronx, so she could meet with staffers in charge of her supervision. Cardoza, who had tested positive for marijuana, never came out of the building. Alvarez ended up forking out $433 to cover the hours the taxi meter ran as he waited in vain.

Cardoza's return to prison turned the family upside down. She's now been back at Danbury for 14 months. Alvarez said she never got the chance to explain herself or challenge that single positive drug test.

"That's just mind boggling to me," Alvarez said. "Where is the judicial system? Where is the fairness? Where is the 50-50? I don't see it."

National Public Radio

Cardoza leaves behind a loved one who is struggling with colon cancer.  Per the BOP locator, her release date is 2024.

Three Key Points From the NPR Article:

From the NPR Article we can take three important points about how the BOP is continuing to apply the CARES Act:

1.  The BOP is still the BOP

While we would like to think that the Bureau of Prisons will be different under Biden's and Garland's leadership it is worth noting that some things stay the same.  The text of the CARES Act gives the Bureau of Prisons exclusive control over who goes home and who doesn't.   The Attorney General's office changes the policy around this through internal memoranda issued by both itself and the Attorney General. The BOP had the ability to change those memoranda in a manner that could create more opportunities for home confinement recipients to be protected but did not. All in all, it further lends evidence to the idea that the system itself is beyond reform (even as reformists try their best) and should be torn down.

2.  Very few people are being sent back for new law violations.

NPR reports that less than one percent of those who are sent back to prison are for new law violations:

This week, the Bureau of Prisons told NPR that 442 people who were released during the pandemic have now returned to prison. Only 17 people out of more than 11,000 who were released committed new crimes, mostly drug related ones, while they were out. More than half, some 230 people [...], got sent back for alleged alcohol or drug use. Other cases involved technical violations. 

If they are not being sent back for new law violations then that means that they are being sent back for things like positive alcohol or drug tests, non-payment of fines and fees, failing to check in or report as indicated, or the other things that are earlier in this very post. The zero tolerance nature of this process is equally as bad: from my time as a state of Texas parole violation attorney I know that people get more than one chance. If someone tests positive they are put in treatment or programming not, back in prison.

3.  Due process arguments may be a -potentially successful conteragument.

The NPR Story indicates that due process arguments (the right to have a fair process before being sent back to prison) are potentially catching on:

Most of the monitoring of people on home confinement is being done by private contractors, said Quinnipiac University School of Law professor Sarah Russell.

"There can be a lot of room for miscommunications and misunderstandings," Russell said.

Russell said that's all the more reason to ensure due process rights for people at risk of being sent back: the opportunity to see the evidence against them and to have a hearing before a neutral arbiter.

Last week, one of Russell's clients won those rights in court. The decision by Judge Omar Williams is the first in the nation to hold that the current process for returning people to federal prison after home confinement is unconstitutional.

Russell said her other clients — moms with young children — are still nervous about having to leave their lives behind unexpectedly.

"My real hope is that this gets addressed at the national level through the Bureau of Prisons and through the Department of Justice," Russell said. "They have a real opportunity to set clear procedures and criteria."

More lawsuits from people returned to prison are under way. The Bureau of Prisons said it can't talk about that pending litigation. But it is considering a new federal rule to make the process more clear.

Inmates have their home confinement hanging in the balance and they are dealing with the constant anxiety that the life they have recreated for themselves. Joe Biden himself campaigned on the idea that too many people are incarcerated. By not taking a strong stance on this issue he is reneging on this prison. Beyond being the compassionate route to take, it is also a cost saving measure. According to the same New York Times article, it costs $37,500 to keep an inmate in prison, whereas it costs $13,000 per person to let them serve in home confinement. This is a savings of $98 million every year for the 4,000 people currently serving their sentence at home.