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
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.