I’ve been writing a lot about the First Step Act and the implications of this new legislation; however, in many cases there really aren’t any more answers now than there were when we celebrated its passage in December. As you may recall, the government set a hard deadline of 210 days after passage – TODAY, July 19 – as the deadline for recalculating extra good time and for the DOJ to adopt the new risk assessment program.

Our office has sent a Freedom of Information Act (FOIA) request to get more information, and – as of the writing of this blog – we have not heard anything significant on the changes to good time yet. Please know that we are in your and your loved one’s corner fighting for information to help you. Until then, you might benefit from watching this 42-minute YouTube video of Deputy Attorney General Jeffrey A. Rosen holding a press conference the morning of July 19th on “major developments on the implementation of the First Step Act” as well as a written edition of Rosen’s Prepared Remarks and an announcement from the Department of Justice concerning the release of 3100 inmates under the FIRST STEP Act as well as publishing the Risk and Needs Assessment System.  Further, the particulars of the Risk and Needs System should be available by now from the National Institute of Justice.

And although it seems like nothing is happening, we have confirmed that – according to the US Sentencing Commission – just a little more than 1,000 inmates in Federal Prisons were granted sentence reductions since the FSA was signed into law.

HOW CAN WE HELP?
When it comes to transfers and good time, there isn’t much our firm can do to help, as these matters are handled and calculated internally at the BOP. Yet – because we are committed to providing you with helpful and useful information of all types, we have included some updates about transfers that we received from our recent FOIA request at the end of this blog.

In other news, we are working hard on the many requests we have received to find out more details about the Home Confinement and the Elderly Offender Programs. At this time, here is what we know about these programs:

SEC. 602. HOME CONFINEMENT FOR LOW-RISK PRISONERS
Section 3624(c)(2) of title 18, United States Code, is amended by adding at the end the following: ‘‘The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.’’

This means that 18 U.S.C. 3624(c)(2) now reads like this:

(2) Home confinement authority. —
The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.

On April 4, 2019 the Bureau of Prisons put out a program statement titled “Home Confinement under the First Step Act.” The document is 10 pages long and should be available in your facilities. We will get it on our webpage over the next week or so for your loved ones to access and send to you.

THE BOP’S RECOGNITION OF THE IMPORTANCE OF HOME CONFINEMENT
Page two of this document has the following at the top of the page:

The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.

FURTHER POLICY CONCERNING THE ELDERLY OFFENDER PROGRAM
Pages 2-5 give more information about the Elderly Offender Home Confinement Program.

The scope and purpose of the pilot is explained, the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention “upon written request from either the Bureau staff, or an eligible elderly offender or eligible terminally ill offender.”

Under paragraph (c), the waiver indicates that “the Bureau is authorized to waive the requirements of section 3624 of Title 18 [home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months] as necessary to provide for the release of some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention for the purposes of the pilot program.” So in other words, an eligible elderly offender is possible to spend more than 6 months or 10 percent of their sentence on home confinement if selected for this program.

Under Paragraph (d), it is explained that “[a] violation by an eligible elderly offender or eligible terminally ill offender of the terms of home detention (including the commission of another Federal, State, or local crime) shall result in the removal of that offender from home detention and the return of that offender to the designated Bureau institution in which that offender was imprisoned immediately before placement on home detention as part of this pilot, or to another appropriate Bureau institution, as determined by the Bureau.”

From there the program statement gives the definition of eligible elderly offender and eligible terminally ill offender as well as the procedure for determining who is eligible under this program. In general, there are three general groups of inmates eligible for consideration of a reduction in sentence (RIS).

GROUP 1: “New Law” Elderly Inmate (non-medical)
• The inmate is aged 70 or older
• They are not serving a life sentence or a term for a crime of violence or a sex offense
• The must not have attempted to escape or escaped from a BOP institution
• Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention
• Has served 30 years or more of their term after 11/1/87

GROUP 2: Terminally ill or chronic or seriously ill (related to the aging process) inmate
• The inmate is aged 65 or older
• Suffers from a chronic or serious medical condition related to the aging process
• Is experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility
• Conventional treatment promises no substantial improvement to their mental or physical condition; and
• Have served at least 50 percent of their sentence.

GROUP 3: ‘Other’
• The inmate is 60 or older
• They have served either 10 years or 75 percent of their sentence, whichever is greater
• They are not serving a life sentence or a term for a crime of violence or a sex offense
• The must not have attempted to escape or escaped from a BOP institution
• Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention

For Eligible Elderly Offenders, a BP-A0210, Institutional Referral for CCC Placement, will be completed. Staff should refer all inmates meeting criteria (1) through (5) in the definition of Eligible Elderly Offender, above. Reentry Services Division (RSD) staff will determine if the inmate meets criteria (6) and (7) under the definition. A clear annotation will be made on the referral packet that “This inmate is being referred for Home Confinement placement under the provisions contained in the First Step Act for placement of eligible elderly offenders and eligible terminally ill offenders.”

For Eligible Terminally Ill Offenders, to include debilitated offenders that may need placement in nursing home, intermediate care facility, or assisted living facility, institution staff will refer the inmate for a Reduction in Sentence (RIS) under Program Statement Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). If not appropriate for a RIS, the Office of General Counsel will provide RSD the RIS packet for consideration under this pilot.

From there, the program statement goes into the addendum. Most notable is the use of 18 U.S.C. § 16, including 16(b) even though it was recently struck down in Dimaya vs. Sessions.

Three big takeaways:
1. This paragraph is substantial: “The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.” If you feel that you meet those requirements, then you I strongly suggest that you reach out to your unit team and ask to be referred to the maximum amount of time under the law (6 months or 10% of your sentence whichever is less).
2. There is no mention of halfway house or RDAP or anything like that in this program statement. So, I would suggest asking for a combination of the two in such a manner that gets you the maximum amount of time possible outside so that you can get back on your feet. In the same vein, if you have completed RDAP and as such, your halfway house time is capped at some number, I would consider asking for the maximum amount of home confinement time in order to have as much time to get back on your feet as possible.
3. The Elderly Offender Home Confinement Program is not bound by the 10%- or 6-months rule in 18 USC 3624(c)(2). Furthermore, the program statement discusses the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention. So as of now, there are no known limits to the amount of eligible elderly offenders that can take part in the program. But there are also many unknowns still, such as the impact of good time on the amount of time that the inmate has served in prison.

Just to remind you, our office can assist with the preparation of elderly offender or home confinement requests. Please use this contact form to schedule a call with one of our compassionate, knowledgeable and professional team members.

INFO FROM FOIA REQUEST REGARDING TRANSFERS:
Here is an excerpt from an April 22, 2019 memorandum from M. D. Carvajal, Assistant Director of the Correctional Programs Division to all Chief Executive Officers at the BOP: “U.S.C. Section 362l(b) to state:

”The Bureau of Prisons shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence. The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner’s preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner’s primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.”

The Bureau’s decision-making in this area is not subject to judicial review. We are in the midst of revising applicable policy to reflect these changes due to the FSA. In the interim, staff should consider a request for transfer closer to home for an inmate already within 500 miles of their release residence if the request is based on the factors outlined in the law (e.g. bed availability, care levels, programmatic needs, security, etc.”

That’s all we have for now. We will keep abreast of any news about the implications and ongoing rollout of the First Step Act. If you believe that we can help you or your loved one, please contact us to schedule a call with one of our compassionate, knowledgeable and professional team members.