This article offers insight into the risks and rewards of requesting an early transfer to Home Confinement under the authorities contained in the CARES Act. It a person applies too early, the person may find challenges that would not have existed if the person waited for the BOP Guidelines. Any person requesting placement under the CARES Act outside the BOP Guidelines should fully understand the complexities that follow.
Special Case Cares Act Request
How did the CARES Act influence people in federal prison?
At the start of the COVID-19 Pandemic, President Trump signed the CARES Act. Invoking the CARES Act, the Attorney General authorized the director of the Bureau of Prisons to send more people to home confinement.
Leaders in the BOP published a series of memorandums that offered guidelines for staff to follow. Those guidelines required staff members to:
- Review the person’s institutional discipline history for the last twelve months (Staff could refer people who received 300 or 400 series incident reports, at the warden’s discretion.);
- Ensure the person has a verifiable release plan;
- Verify the person does not have a history of violence, sex offense, or terrorism-related activities;
- Confirm the person does not have a detainer;
- Confirm the person meets the requirements for low or minimum security;
- Confirm the person has a Low or Minimum PATTERN recidivism risk score;
- Confirm the person has not engaged in violent or gang-related activity while incarcerated (must be reviewed by Special Investigative Services lieutenant—SIS);
- Review the COVID-19 vulnerability of the inmate under Center for Disease Control and Prevention (CDC) guidelines; and
- Confirm the person served 50% or more of their sentence; or has 18 months or less remaining on their sentence—and has served 25% or more of their sentence.
The guidelines empowered the warden in each institution to send people to home confinement. Thousands of people that met those requirements transitioned to home confinement. On the flip side, the BOP did not approve thousands of people who met the criteria; they may have had any number of individualized circumstances that made them unlikely candidates for home confinement.
Staff members in the BOP have enormous discretion over people serving federal sentences. Under the CARES Act, they can choose who remains in prison, and who transitions to home confinement.
When staff members don’t help, BOP policy authorizes people to pursue relief through administrative remedy. If a person exhausts efforts through administrative remedy, The First Step Act authorizes people to file for relief from the sentencing judge.
People should anticipate the judge’s response. The judge sentenced a person to the “custody of the attorney general.” The attorney general gave the director of the BOP enormous discretion when it came to CARES Act. If the BOP declares a person ineligible for relief under CARES, the person has a high burden to cross in persuading a judge to grant relief. A person should think about develop a record that the judge will find “extraordinary and compelling.” The adjustment record in prison, together with other factors, can move the judge to grant relief.
Exceptions to the Guidelines:
The BOP’s memorandums provide guidance to staff members. They also provide for the use of discretion in determining that a person may be appropriate for home confinement placement outside of the general guidelines.
Staff members could recommend a person transition to home confinement before the 25% or 50% rule, depending upon sentence length and time served. Some people transitioned to home confinement much earlier. People have transitioned to home confinement even though they had more than a decade remaining to serve.
What happens when a person requests an exception to the CARES Act guidelines?
The BOP guidance memorandum for CARES provided instructions to BOP staff members in normal cases, and in exceptional cases. If a person did not meet the general guidance outlined in the memo, the BOP had a response.
If a person requests an exception—and the institution staff agree with the exception request—the local institution will forward the request to the Correctional Programs Division (CPD) in Washington DC. Administrators at the senior level will make an assessment.
For exception cases, the best outcome would be that leaders of the CPD would agree that the BOP should make an exception to the guidelines. If they make such an exception, the CPD will authorize the person to transfer to home confinement earlier than the guidelines suggest.
The worst case would be that leaders of the CPD decline the request. When they decline a request, the staff members will annotate the denial in the person’s SENTRY database. That entry will remain with the person throughout the stay in the BOP.
SENTRY is the BOP’s primary support database. Staff members routinely update SENTRY with information pertaining to the person’s adjustment. To learn more about SENTRY, click the link that follows:
What are the risks if the CPD determines not to grant an exception case?
If the CPD does not authorize an exception, the person will remain in the BOP facility. When the person qualifies for CARES under the guidelines, per the bullet points I listed above, the local institution will consider the person for transition to home confinement under CARES.
Suppose the warden finds the person suitable for transition to home confinement. In that case, the warden will recommend the person to the appropriate Residential Reentry Manager (RRM—the role that oversees the RRC) will review the person’s file.
If the RRM has the capacity to accept the person, the RRM will confirm a date to accept the person into the home confinement program under CARES.
The person’s case manager in prison will notify the person of the transition date from prison to the RRC to conclude the remainder of the sentence on home confinement—overseen by staff members in the RRC.
Why it’s a risk to request an exception to the guidelines for CARES:
The warden of a local institution has the discretion to release a person that meets the BOP guidelines for CARES if a person:
- meets the criteria,
- if the warden makes the recommendation, and
- if the RRM agrees, it’s unlikely there would be further review.
But if a person requested an exception, the risk exists that the SENTRY database will flag the person’s file. Leaders in the CPD may reassess whether relief on CARES is appropriate. Sometimes they will not act at all. However, sometimes the CPD will intervene and overrule the local institution.
In cases without exception requests, the CPD would not have reason to review SENTRY notes. According to resources we’ve consulted, it would be unlikely that the CPD would intervene in warden’s decision to review a person’s file—unless some external agency pressured the BOP.
For this reason, people should be cautious when considering applying for an exception to the BOP Guidelines.
Other Factors influencing Home Confinement Placement under the CARES Act:
Many factors outside a person’s control influence whether staff will recommend a person for home confinement. For example, a person wouldn’t have any influence over the capacity of the RRC contractor. The RRC contractor must provide oversight of people on home confinement. According to our sources, several RRC contract providers have reported that the BOP is not paying invoices timely. Those untimely payments result in some contract providers not receiving reimbursements for almost a year.
The lack of payment severely hampers the capacity of RRCs to monitor more people on home confinement. Additionally, the Second Chance Act limits placement in an RRC to the final year of the sentence—unless they get relief under CARES Act.
The Second Chance Act influences the BOPs ability to place a person on home confinement. If staff members conclude that the home confinement address may not be viable, they may choose to leave the person in prison. Similarly, if it doesn’t appear that the person has financial support from the home environment, they may choose not to grant a person relief.
Each person should inform family members that contract staff will visit the home before they make a recommendation. Those staff members will assess the home environment. They want to make sure the person will not have access to firearms, alcohol, or drugs. The family must express a willingness to support the person for the duration of home confinement.
If the BOP places a person on home confinement that exceeds one year under CARES, and the family says the person cannot reside there any longer, the BOP will send the person back to prison.
Each person should viable and well-structured release plan. The entire family must support the plan. Staff members will not view temporary living arrangements as a viable solution for a person requesting early transition to home confinement.
While serving time in prison, people may want to take the submarine approach to an adjustment.
- Stay invisible, working toward the release date without becoming a neon light that attracts attention.
- Keep the periscope up to stay aware of all that’s happening around them.
- Participate in programs that show a commitment to developing good critical-thinking skills that will facilitate a transition into society.
- Document the journey with a journal, showing consistent preparations for a law-abiding, contributing life upon release.
- Build a solid release plan, showing the efforts to build a support network.
- Stay vigilant in keeping a blemish-free disciplinary record.
- Accept that prison will bring frustrations and that each person must exercise discipline daily.
- Be respectful of staff at all times, acknowledging that all staff members have enormous discretion over people in federal prison.
- Remember that staff members will consider many factors when assessing a person’s suitability for release under the CARES Act, including the judge’s intention. If the judge knew about a person’s medical history at sentencing, staff members may consider that the judge wanted the person to remain in BOP custody. If there is no change in medical condition, the risk of requesting an application for an exception to the guidelines may be much higher.
The links at the top of this page show the unfortunate result of one person who attempted to request an exception case from the guidelines under CARES. The summary:
- The person asked for an exception to the guidelines.
- The CPD denied the request.
- The person served the remainder of the time until he qualified for the BOP Guidelines.
- The warden at the local institution and the RRM agreed to grant the person release.
- The case manager issued the person a date to transfer from prison to home confinement.
- The CPD reviewed SENTRY and intervened, pulling the date from the person.
- The person remained in the BOP until he transferred to an RRC under Second Chance Act.
- The person serves time in the halfway house rather than in home confinement.
Each person should consult with family, and perhaps competent counsel before deciding whether to apply for an exception to the BOP Guidelines for CARES Act relief. They should use all their critical-thinking skills when making decisions, and we hope this information helps.
- Redacted letter showing how an attorney responded to the denial of placement for CARES Act placement.
- Redacted letter showing how the BOP responded to the attorney’s request for reconsideration.