Department Of Justice Lays Plans For Federal Inmates On Home Confinement To Return To Prison
The current Director of the federal Bureau of Prisons (BOP), Michael Carvajal, was named as head of the agency in February 2020 and inherited management of federal correctional institutions at one of the most challenging times in the agency’s history. As the virus started to spread across the United States, actions were taken to address the contagion among the inmate population, where social distancing is difficult and medical care inadequate.
On March 26, 2020, Carvajal placed the BOP on modified operations which canceled, among other things, social visitation, limited contractors' access to the prison, and instituted protocols to screen inmates/staff for signs of COVID-19. Carvajal was so confident after instituting these measures that he provided the following statement:
“The BOP has thus far been fortunate in that our rate of COVID-19 infection is remarkably low. As of March 26, out of over 146,000 inmates in our custody, ten inmates have tested positive. Out of over 36,000 staff, eight staff have tested positive. We believe that the low number of cases to this point, in a system this large, is a testament to our effective planning and execution to-date.”
That seems like a long time ago. Since that Carvajal announcement, 200 inmates have died as have 3 BOP staff members. There are currently (January 19, 2021) 4,054 federal inmates and 1,977 BOP staff who have confirmed positive test results for COVID-19 nationwide while tens-of-thousands have recovered. Inmates at facilities like FCI Lompoc, FCI Elkin, Butner Medical Center, and now FCI Ft. Dix, have been ravaged by the virus.
One of the most successful actions taken to combat the contagion of COVID-19 has been to reduce the prison population. Since the BOP had no way to just release inmates, then-Attorney General William Barr issued a directive in April 2020 to Carvajal with instructions to reduce the prison population by moving inmates with underlying conditions (older, high blood pressure, lung conditions, diabetes, and compromised immune systems) out of prison and into home confinement: Barr wrote;
“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons. I hereby make that finding and direct that, as detailed below, you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities ...”
As of January 20, 2021, the BOP has 123,039 federal inmates in BOP-managed institutions and has placed 20,480 inmates on home confinement since March 26, 2020. While the BOP has moved these inmates to home confinement, some with many years remaining on their sentence, it did not address how it would treat these inmates and those who might be entering prison with underlying conditions, once the pandemic has passed and the “emergency conditions” have ended.
Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section argued last year in a District of Columbia case that a defendant if released to home confinement, would be returned to prison one day to complete his sentence. According to the transcript, McCarthy made a comment regarding the possibility of a return to prison;
“So it's my understanding that Mr. Doost [defendant] is being re-evaluated once he crosses that threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over, unlike compassionate release, which is just a — which is a release, essentially, to home confinement.”
After I wrote on the Doost case, many people reached out to me to say that no inmates would be returning to prison per McCarthy’s comments but nobody could they point me to a policy that stated this. It was confusing. However, now, the Department of Justice has issued a Memorandum Opinion entitled, “Home Confinement of Federal Prisoners After the COVID-19 Emergency,” which states;
“The Coronavirus Aid, Relief, and Economic Security Act authorizes the Director of the Bureau of Prisons to place prisoners in home confinement only during the Act’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).”
The memo is meant to begin to address what happens to those prisoners released to home confinement once the pandemic emergency ends. All of those inmates were told they were heading home but no paperwork they received indicated a date of return ... most assumed that they were home for good with their sentence ending when their ankle bracelet was removed. When the BOP (DOJ) makes their final decision, there is no doubt that the pandemic will end one day, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement anyway. According to Jack Donson who worked at the BOP for many years as a correctional specialist,” this would mean, strictly according to the policy before the CARES Act, that only those who are home detention eligible (6 months or 10% of their sentence remaining) would be allowed to complete their sentence at home.”
Donson added, that he views the BOP as having some flexibility around that requirement but you can bet it will be hotly debated. It should also be noted that the memo on guidance to return inmates on home confinement back to institutions was issued under the Trump administration. The influence of a Biden administration and that of the presumed Attorney General Merrick Garland is still unknown.
When I first wrote on this subject in fall 2020, the non-profit group Family Against Mandatory Minimum president Kevin Ring reached out to me and said that he had communicated this concern to the White House (Trump) who then reached out to DOJ. Word came back to Ring at the time that there was no intention of sending inmates back .... now this new memo has emerged.
As of today, the BOP is still operating under the Barr memo to Carvajal and inmates are being transferred to home confinement. The BOP is also rolling out a vaccination program for inmates and staff, creating a situation where the Biden administration needs to start providing some direction as to how they will unravel this situation.
One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently in home confinement is something that should begin now.