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 25 Points on Home Confinement 

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Michael Santos

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Home Confinement in the Bureau of Prisons

On June 14, 2022, Attorney General Merrick B. Garland proposed a rule that would authorize the BOP Director more discretion regarding home confinement. The Proposed Rule concerns people that went to home confinement under the CARES Act. 

The Rule is open for public comment until July 21, 2022. 

After July 21, 2022, the BOP and DOJ will review the comments and issue a Final Rule. The Final Rule becomes the law that the BOP will follow. 

Below, I offer 25 points showing why I think the Proposed Rule indicates that the Bureau of Prisons is moving in the right direction. It should be clear that I’m offering these thoughts from the perspective of a person that served multiple decades in federal prison. Each person should read the Proposed Rule and draw his or her conclusions.

During my tenure in prison, I saw many changes. Leaders in the BOP require many months and sometimes years to roll out changes that influence operations across the entire agency.

When Congress passed legislation that resulted in the RDAP program, for example, the BOP rolled the program out slowly. Many changes have occurred since RDAP started, including how the BOP administrated time cuts. Similarly, when President Bush signed the Second Chance Act, the BOP interpreted the Act differently than it does today. Changes take place over time.

With the First Step Act (FSA), we saw significant changes, with a new focus on the importance of preparing people for success upon release. Before the First Step Act, the BOP trained its staff to focus on preserving security and didn’t put as much emphasis on the responsibility of preparing people for success. 

The BOP has been slow to roll out all the benefits of the FSA for several reasons, including:

  • Congress required the agency to create a risk-assessment tool that required more than a year to complete.
  • The pandemic interfered with the rollout of programs that could lead to Earned Time Credits.
  • The agency had to train more than 36,000 staff members to think differently about reentry.

The First Step Act represents the most significant prison-reform legislation since the 1994 Comprehensive Crime Control Act. It influences every person in federal prison. Every person in federal prison should understand how changes in BOP policy can affect release dates.

The First Step Act and Self-Advocacy:

The more a person understands the system, the more effectively a person can engineer a self-advocacy program. With the First Step Act, self-advocacy has become more critical than ever. People that document their preparation well may advance their candidacy for home confinement. 

The First Step Act puts us in a different era than the one that led to mass incarceration. But years will pass before the BOP fully implements the will of Congress. Still, I am encouraged by what I read in the Proposed Rule. In the end, we don’t know how the new Director will lead, and we don’t know what guidance the DOJ will give her, assuming the position is going to Colette Peters, as I reported previously

Everyone should remember that politicians and prosecutors do not want to release people who will commit more crimes.

For this reason, people should build records showing why they are likely to lead law-abiding lives. The more a person memorializes a positive adjustment strategy, the more effective a person will become in persuading BOP administrators to recommend home confinement at the earliest possible time.

Based on the language in the Proposed Rule, leaders may move closer toward authorizing low-risk people opportunities to serve more extended periods of home confinement. The wording suggests that:

  • The Bureau of Prisons has the expertise to manage people in home confinement,
  • People that go into home confinement are more likely to integrate with society successfully than if they were to remain in secure prisons longer,
  • The First Step Act authorizes broader use of home confinement,
  • Congress intends for the Bureau of Prisons to use its discretion to improve reentry outcomes,
  • Broader use of Home Confinement would lower costs for the Bureau of Prisons.

Prison Professors submitted a letter to express our strong support for this rule change. We believe the proposed rule change will become law. We also believe that it will lead to more opportunities for qualified, low-risk people to serve longer portions of their sentences in a home-confinement setting.

By expanding the Director’s discretion to use Home Confinement as a resource, the Bureau of Prisons will accomplish many goals that serve the interests of taxpayers:

  • The proposed Rule will incentivize people in prison to engage in productive activities.
  • The proposed Rule will give people in prison reasons to avoid disruptive activities.
  • The proposed Rule will encourage people in prison to document their efforts to reconcile with society and prepare for law-abiding lives upon release.
  • The proposed Rule will offer hope that people in prison can build upon, encouraging them to demonstrate why they’re worthy candidates for more extended periods of home confinement.
  • The proposed Rule will lower costs for the Bureau of Prisons.
  • The proposed Rule will improve morale among Bureau of Prisons staff.
  • The Proposed Rule will allow the Bureau of Prisons to collect more data that shows why the agency can increase public safety by transitioning people to home confinement based on individual assessments.

The background information in the proposed rule confirms that the BOP has broad discretion on when to send a person to home confinement. Earlier BOP Memorandums suggested that qualified people serving:

  • longer than 18-month sentences may be appropriate for home confinement after they served 50% of the sentence imposed,
  • sentences of 18 months or less may be appropriate for transfer to home confinement after they served 25% of the sentence imposed.

My interpretation of the language in the Proposed Rule suggests that those percentages were only guidelines. With the First Step Act, the BOP Director has broad discretion. The Director may authorize the BOP to transfer people to home confinement when such a transfer would serve the best interest of justice.

Statistics suggest that recidivism rates will drop if the Bureau of Prisons incentivizes people to build post-conviction records that will allow them to transition to home confinement sooner. Below I offer 25 bullet points from the Proposed Rule that I highlighted. Readers should turn to the Proposed Rule in the Federal Register for the complete text:

  1. The CARES Act authorizes the Director of the Bureau of Prisons to lengthen the time a prisoner may be placed in home confinement beyond the statutory maximum normally allowed under 18 U.S.C. 3624(c)(2) as the Director deems appropriate.
  2. Following guidance from the Attorney General, the Director has exercised his discretion under the CARES Act to place thousands of inmates in home confinement during the pandemic emergency.
  3. Very few inmates placed in home confinement under the CARES Act have committed new crimes.
  4. Although the CARES Act plainly states that the Director’s authority to lengthen the maximum period of home confinement exists during the covered emergency period, the Act is silent about what happens to an inmate who was placed in home confinement under this authority, but who has more than the lesser of ten percent of her sentence or six months remaining in her term of imprisonment after the covered emergency period expires.
  5. Aligns with the Bureau’s consistent position that the more appropriate reading of the statute is to permit the Bureau to conduct individualized assessments—as it does in making prisoner placements in other contexts— to determine whether any inmate should be returned to secure custody after the COVID–19 emergency ends.
  6. The Department’s interpretation of the stature is also consistent with Congressional support for increasing the use of home confinement as part of reentry programming, as the Second Chance Act of 2007 and the First Step Act of 2018 demonstrate….
  7. Indeed, there is evidence that the Bureau can appropriately manage public safety concerns related to inmates in home confinement, and there are penological, rehabilitative, and societal benefits of allowing inmates to effectively prepare for life after the conclusion of their criminal sentences.
  8. For all of these reasons, the Department proposes to provide the Director with express authority and discretion to allow prisoners who have been placed in home confinement under the CARES Act to remain in home confinement after the conclusion of the covered emergency period.
  9. The FSA established earned time credits that eligible inmates could accrue through participating in recidivism-reducing programs and then apply for transfer to pre-release custody, including home confinement, without regard for the time frames set forth in 18 U.S.C. 3624(c)(2).
  10. On March 27, 2020, the President signed into law the CARES Act, which expanded the authority of the Director to place inmates in home confinement in response to the COVID–19 pandemic upon a finding by the Attorney General.
  11. The Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.
  12. According to the Bureau, as of March 4, 2022, a small percentage of inmates placed in home confinement pursuant to the CARES Act—357 out of approximately 9,500 total individuals— had been returned to secure custody as a result of violations of the conditions of home confinement. Of this number, only 8 were returned for new criminal conduct (6 for drug-related conduct, 1 for smuggling non-citizens, and 1 for escape with prosecution).
  13. These data suggest that inmates placed on longer- term home confinement under the CARES Act can be and have been successfully managed, with only a limited number requiring return to secure custody for disciplinary reasons.
  14. For all the reasons set forth above, the Department proposes to promulgate this rulemaking under the Attorney General’s authority, see 5 U.S.C. 301; 18 U.S.C. 4001(b)(1), to codify the Director’s discretion to allow inmates placed in home confinement pursuant to the CARES Act to remain in home confinement after the covered emergency period expires.
  15. Section 12003(b)(2) of the CARES Act authorizes the Director to place inmates in home confinement, notwithstanding the time limits set forth in 18 U.S.C. 3624(c)(2), during and for 30 days after the termination of the national emergency declaration concerning COVID–19, provided that the Attorney General has made a finding that emergency conditions are materially affecting BOP’s functioning.
  16. In its recent opinion, OLC concluded that section 12003(b)(2) does not require the Bureau to return to secure custody inmates on CARES Act home confinement following the end of the covered emergency period.
  17. Section 12003(b)(2) ends with the phrase ‘‘as the Director determines appropriate,’’ which explicitly delegates authority to the Director to determine the appropriate amount to lengthen a period of home confinement.
  18. Finally, OLC concluded that the appropriate action to focus on in determining the meaning of section 12003(b)(2) is the authority to ‘‘lengthen’’ the maximum period of home confinement, which is a discrete act.41 The term ‘‘to place’’ derives from a different statute—18 U.S.C. 3624(c)(2)—and even assuming the act of ‘‘placement’’ involves an ongoing process, the Bureau fully completes the act of ‘‘lengthening’’ the time for which an individual may be placed in home confinement under the CARES Act when an inmate is transferred to home confinement under the Act. Once the Bureau has appropriately lengthened an inmate’s maximum period of home confinement under the CARES Act, sections 3624(c)(2), 3621(a), and 3621(b) provide the Bureau with ongoing authority to manage that placement.
  19. The Department’s interpretation is also consistent with congressional action demonstrating an interest in increasing the Bureau’s use of home confinement.
  20. Such legislative efforts have been part of Congress’s broader push to manage prison populations, facilitate inmates’ successful reentry into communities, and reduce recidivism risk.
  21. As explained below, in the Bureau’s expert assessment, whether an inmate should remain in home confinement is a decision best made upon careful consideration of the appropriate management of Bureau institutions, penological, rehabilitative, public health, and public safety goals, and the totality of the circumstances of individual offenders.
  22. One of the vital tools in operating a correctional system is the ability to effectively manage bedspace based on the needs of the offender, security requirements, and agency resources.
  23. Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. In Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. In contrast, according to the Bureau, an inmate in home confinement costs an average of $55 per day—less than half of the cost of an inmate in secure custody in FY 2020.
  24. Thus, in the Department’s view, the aspects of a criminal sentence that preserve public safety can be managed in this context while also allowing individuals to more effectively prepare for life when their criminal sentences conclude.
  25. For all of these reasons, the Department believes that it is not only statutorily authorized, but also operationally appropriate for the Director to have the discretion to allow individuals placed in home confinement under the CARES Act to remain in home confinement after the end of the covered emergency period.

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