Memorandum Opposes Extending Home Confinement After Covid-19

Extending home confinement past the COVID-19 pandemic is a blurry legal line.

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On January 15th, a memorandum opinion by Deputy Assistant Attorney General Jennifer L. Mascott provided thoughts on extending home confinement of inmates granted relief under the CARES Act to the Biden administration. 

Proposed Extension of Home Confinement Feature

The home confinement feature of the CARES Act applied to 40% of home confinement recipients in the last 10 months. While an inmate can usually only serve 10% or 6 months of their time on home confinement, the CARES Act gave the BOP authority to waive this requirement. This was presented in the early stages of the pandemic here. 

According to the memorandum, the Biden administration has hinted at extending home confinement for CARES Act recipients, even after the national COVID-19 emergency abates. But does the administration have the authority to do so? Mascott argues not, pointing out that the home confinement feature of the CARES Act was never meant to be permanent.

Just as the CARES Act unemployment benefits end after the emergency ends, Mascott argues so should CARES Act home confinement. Additionally, those on home confinement are still considered to be in the custody of the BOP.

Home Confinement vs. Facility Placement

Mascott also argues that 18 U.S.C. § 3621(a) and (b) require a convicted person to be placed in a facility. She acknowledges that the statute does not specify what defines a facility. Nevertheless, she asserts that a “facility” differs from a “home” for several reasons.

Firstly, Mascott believes that a facility (as opposed to a residence) serves a specific function. However, by her own admission, home confinement is still considered BOP custody. So, we would suggest, while in home confinement, a person’s residence does serve a specific function – arguably the same function that a prison serves for a person with a carceral sentence.

Secondly, Mascott cites caselaw wherein home detention before trial was not considered towards time credits for a convicted person as evidence that home confinement cannot serve as an alternative to incarceration. However, the caselaw she references all apply to situations where home confinement prior to incarceration doesn’t count as time. It says nothing of home confinement following incarceration.

Further, this argument breaks down when considering that limited home confinement already constitutes a legally accepted way of serving time at the end of an inmate’s sentence. The existence of the home confinement feature at all, even in its limited capacity outside of the CARES Act refutes this point.

Extended Home Confinement As Sufficient

When examining this memorandum, we also call to mind the Sentencing Commission’s guidelines on appropriate sentences. The Commission asks for punishments to be “sufficient but no greater than necessary.” By placing several thousand inmates on home confinement during the COVID-19 pandemic, the BOP has affirmed that an extended carceral sentence for many people is, in fact, greater than absolutely necessary.

The government could argue that home confinement can only fulfill sufficiency during the pandemic because incarceration with the risk of COVID-19 is definitely greater than necessary. But, once COVID-19 under control, safe incarceration would present a “middle ground” between home confinement and incarceration during COVID-19 outbreaks. And, once that middle ground exists, home confinement may no longer meet the sufficiency requirement.

To the contrary, however, we would argue that the bar for sufficient punishment does not change with the availability of more severe punishments. Instead, sufficiency is a product of the crimes and characteristics of the inmate in question – factors that the BOP considers already when determining who receives home confinement. If home confinement were not sufficient, the BOP would not have released anyone onto home confinement at all.

In Summation

Extending home confinement past the COVID-19 pandemic is a blurry legal line. Admittedly, Mascott references legislation that calls into question the authority of the BOP to extend home confinement, even if they wanted to. As such, we believe this is a larger criminal justice issue of whether mass incarceration is really “no greater than necessary” for many inmates.

Long after the COVID-19 emergency comes to a close, we posit that a system that depends on a deadly pandemic to show compassion and calculated leniency towards those convicted of crimes cannot sustain itself and does not function in the interest of human rights and dignity.