Please note that all comments received are considered part of the public record and made available for public inspection online at v. On March 13, 2020, the President of the United States declared that a national emergency existed with respect to the outbreak of COVID-19, beginning on March 1, 2020. See 56. After July 21, 2022, the BOP and DOJ will review the comments and issue a Final Rule. 2022-13217 Filed 6-17-22; 8:45 am], updated on 4:15 PM on Friday, March 3, 2023, updated on 8:45 AM on Friday, March 3, 2023. In March 2020, former President Trump signed the CARES Act into law in response to the pandemic, which, among other things, expanded the Bureau of Prison's ability to place more inmates on home . First, 18 U.S.C. Learn more here. .). The statute provides that an inmate placed in home confinement under this incentive program shall remain in home confinement until the prisoner has served not less than 85 percent of the prisoner's imposed term of imprisonment, and that the Bureau should provide progressively less restrictive conditions on inmates who demonstrate continued compliance with the conditions of prerelease custody.[51]. [59] These include increasing the Bureau's ability to control inmate populations in BOP facilities and in the community, allowing it to be responsive to changed circumstances; empowering the Bureau to make individualized assessments as to whether inmates placed in home confinement should remain in home confinement after the end of the covered emergency period, taking into account, for example, penological goals and the benefits associated with an inmate establishing family connections and finding employment opportunities in the community; and allowing the Bureau to weigh the ongoing risk of new COVID-19 outbreaks in BOP facilities against the benefit of returning any inmate to secure custody. Persons hospitalized in private or public hospitals were allowed only one individual with whom he or she could openly and privately correspond. by the Foreign Assets Control Office The Public Inspection page While the criteria for placement in home confinement . SCA, Public Law 110-199, sec. The new memorandum provides updated guidance and supersedes the memorandum dated November 16, 2020.. The House of Representatives passed the First Step Act by a vote of 358 to 36, and the Senate passed the Act by a vote of 87 to 12. 3621(a) (A person who has been sentenced to a term of imprisonment . documents in the last year, 36 . 1109, 134 Stat. 67. Although placements under the CARES Act were not made for reentry purposes, the best use of Bureau resources and the best outcome for affected offenders is to allow the agency to make individualized assessments of CARES Act placements with a focus on inmates' eventual reentry into the community. Indeed, of the nearly 5,000 inmates placed in home confinement under the CARES Act, as of January 8, 2022, only 322 had been returned to secure custody for any reason, and only eight for committing a new crime. Home confinement provides penological benefits as one of the last steps in a reentry program. The Department incorporates the analysis from OLC's opinion into the preamble of this notice of proposed rulemaking. Inmates placed in home confinement are considered in the custody of the Bureau and are subject to ongoing supervision, including monitoring, drug and alcohol testing, and check-in requirements. sec. In addition, the consequences of temporary CARES Act authorities may extend past the emergency period. documents in the last year, 87 provide legal notice to the public or judicial notice to the courts. 14. 5212, The State of NJ site may contain optional links, information, services and/or content from other websites operated by third parties that are provided as a convenience, such as Google Translate. O.L.C. (Apr. This is because on January 15, 2021, just five days before President Trump left office, the Justice Department's Office of Legal Counsel issued a memo declaring that people transferred to home confinement under the CARES Act would be sent back to prison once the national COVID emergency ended. See id. On April 3, 2020, the Attorney General issued a second memorandum for the Director, finding that emergency conditions were materially affecting the functioning of the Bureau, and acknowledging that the Bureau was experiencing significant levels of infection at several of our facilities.[18] Natural Resource Defense Council, Inc., and the resulting increased crowding in prison settings could lead to new COVID-19 outbreaks, including breakthrough cases in fully vaccinated inmates and infections in the most vulnerable prisoners. available at: http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf. 503 U.S. 329, 335 (1992); Nat'l Academies of Sciences, Engineering, and Medicine, available at https://doi.org/10.17226/25945 5194, 5238 (2018), Congress has demonstrated through the passage of the SCA and the FSA an increasing interest in appropriately preparing inmates for reintegration into society, and an ongoing reevaluation of the societal benefits of incarceration versus non-custodial rehabilitative programs. [26] See id. CDC, Considerations for Modifying COVID-19 Prevention Measures in Correctional and Detention Facilities (June 22, 2021), Congress has explicitly provided the Bureau responsibility for maintaining custody of Federal inmates[52] BOP RE: (last visited Apr. available at https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5 It is further supported by evidence demonstrating that the Bureau can appropriately manage public safety concerns related to inmates in home confinement, and by the penological, rehabilitative, public health, public safety, and societal benefits of allowing inmates to effectively prepare for successful reentry after the conclusion of their criminal sentences. The term escape with prosecution indicates that a United States Attorney's Office has decided to prosecute an inmate for escape under 18 U.S.C. Specifically, the Act states: During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, 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. 18 U.S.C. Register documents. regulations.gov departure from the three principal determinations upon which the January 2021 OLC opinion was grounded. Jan. 13, 2022. (last visited Apr. at 304-06. [22] [34] Before the pandemic, the Bureau of Prisons had the authority to transfer inmates to home confinement for just the final six months of their sentences. the Department's assessment, public safety considerations do not undercut the benefits associated with allowing inmates placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period. For example, although the authority to provide loans under the CARES Act's Paycheck Protection Program was limited, the loans granted pursuant to that authority will mature over time.[39]. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve," Bates added. . Because the affected inmates are currently serving their sentences in home confinement, there will be no new costs associated with this proposed rulemaking. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted at (Mar. Jody Sundt See for better understanding how a document is structured but Today I asked BOP what those crimes were and . 63. 1315 (2021); [24] Start Printed Page 36790 This proposed rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year, and it will not significantly or uniquely affect small governments. (GC 2022-D015) . See id. 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. to rebuild ties between offenders and their families, while the offenders are incarcerated and after reentry into the community, to promote stable families and communities; . Even after OLC issued this initial opinion, the Bureau's view remained that the stronger interpretation of the CARES Act did not require all prisoners in CARES Act home confinement to be returned to secure facilities at the end of the covered emergency period.[36]. 110-140, at 1-5 (2007) (The Second Chance Act will strengthen overall efforts to reduce recidivism, increase public safety, and help States and communities to better address the growing population of ex-offenders returning to their communities. 3624(c)(2). Relevant information about this document from Regulations.gov provides additional context. 18 U.S.C. (GC 2022-D066) 62 Under these agreements, individuals placed in home confinement are subject to electronic monitoring; check-in requirements; drug and alcohol testing; and transfer back to secure correctional facilities for any significant disciplinary infractions or violations of the agreement. Federal Bureau of Prisons Program Statement 7320.01, CN-2, Home Confinement (updated Dec. 15, 2017), H.R. the current document as it appeared on Public Inspection on 19. . Of this total, there were 2,272 inmates with release dates in more than 18 months; 593 inmates with release dates in 5 years or more; and 27 inmates with release dates in 10 years or more. Washington, DC (Aug. 19, 2021) - FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLC) launched the "CARES Act Home Confinement Clearinghouse" today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison. This interpretation, which the Department adopts in promulgating this rulemaking, also aligns with the Bureau's consistent position that the more appropriate reading of the statute is to permit the Bureau to conduct individualized assessmentsas it does in making prisoner placements in other contextsto determine whether any inmate should be returned to secure custody after the COVID-19 emergency ends. the official SGML-based PDF version on govinfo.gov, those relying on it for See Court Approves Settlement; BOP to Rapidly Process Lompoc Inmates Under Expanded CARES Act Home Confinement Rules. Rep. No. [55] COVID-19 most often causes respiratory symptoms, but can also attack other parts of the body. OLC reexamined the relevant text, structure, purpose, and legislative history, along with the Bureau's additional materials demonstrating its consistent analysis of its own authority, and concluded the stronger interpretation of section 12003(b)(2) was not to require the wholesale return of CARES Act inmates to secure custody. "CARES Act home confinement is, frankly, a black box," Guernsey, of the University of Iowa, said. 26, 2020), Neither the BOP nor the DOJ have publicly released or published that memo, however, leaving criminal defense . This prototype edition of the 26, 2022). documents in the last year, 285 There is no legislative history to support such a reading, and there are other plausible explanations for the grace period, including broader forms of administrative convenience and benefit, such as letting BOP finish processing home-confinement placements that were in progress and to which BOP had already devoted resources. In what appears to be one of the most successful re-entry programs in federal prison history , of the 11,000+ low-risk federal inmates transferred to home confinement under this new provision, only 17 committed a . Their freedom didn't last long. The bill focuses on development and support of programs that provide alternatives to incarceration, expand the availability of substance abuse treatment, strengthen families, and expand comprehensive re-entry services. Whether the BOP will do that, however, remains to be seen. (3) This section concerns only inmates placed in home confinement under the CARES Act. The documents posted on this site are XML renditions of published Federal Federal Bureau of Prisons Program Statement 7320.01, CN-2, Home Confinement (updated Dec. 15, 2017), Released prisoners cite family support as the most important factor in helping them stay out of prison. See id. Start Printed Page 36796 Register (ACFR) issues a regulation granting it official legal status. In a Memorandum for Chief Executive Officers dated April 13, 2021, BOP issued a new policy for expanding and reviewing at-risk inmates for placement on home confinement in accordance with the CARES Act and guidance from the Attorney General. H.R. 03/03/2023, 207 3624(c)(2) authorizes the Director to transfer inmates to home confinement for the shorter of either 10 percent of the term of imprisonment or six months. 47. [19] documents in the last year, 517 This table of contents is a navigational tool, processed from the [49] Register, and does not replace the official print version or the official at *12. See 68. When an inmate is placed in home confinement, he or she is not considered released from the custody of the Bureau of Prisons; rather, he or she continues serving a sentence imposed by a Federal court and administered by the Bureau of Prisons. documents in the last year, 987 https://www.bop.gov/inmates/fsa/pattern.jsp. 12003(b)(2), 134 Stat. Additional observation and research will need to be conducted to determine if this very low level of recidivism can be maintained, or if it was affected by the unique external circumstances caused by the global pandemic. supporting this management principle. Second, the Attorney General's finding, in turn, triggers the Director's discretion to lengthen the maximum amount of time an inmate may be placed in home confinement, as the Director determines appropriate.[44] 10. These tools are designed to help you understand the official document Rep. No. Lompoc, California (DAS) - In May 2020, during the peak of the original COVID-19 national pandemic, the federal prison at Lompoc, California was 130% overcrowded. . corresponding official PDF file on govinfo.gov. On December 21, 2021, Attorney General Merrick Garland announced that DOJ would be rescinding the January 2021 Office of Legal Counsel memo that determined that thousands of people who are currently serving sentences on home confinement through a provision of the CARES Act would need to return to federal custody after the termination of the . 26. Recently, Congress passed a government funding bill, entitled the Consolidated Appropriations Act of 2022 (2022 CAA). 36. These efforts were undertaken over years of bipartisan negotiations and garnered broad support across the political spectrum, beginning with the Second Chance Act of 2007 and This section differs from section 12003(b)(2) in important ways. Although the Bureau has not yet published the average cost of incarceration fees (COIF) for Fiscal Year (FY) 2021, in FY 2020 the average COIF for a Federal inmate in a Federal facility was $120.59 per day. 15. The Final Rule becomes the law that the BOP will follow. available at https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf. available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf. See (Mar. 5 U.S.C. Start Printed Page 36791 06/17/2022 at 8:45 am. at *7-9. at 658 (The purposes of the Act are . 27, 2020, 134 Stat 281). en masse On June 21, 2022, the Federal Register issued a call for comments on a rule as how the BOP would end the program of transferring prisoners to home confinement upon the end of the CARES Act. headings within the legal text of Federal Register documents. The Bureau also explained that home confinement decisions have historically been made on an individualized basis, which serves penological goals. as part of your comment, but do not want it to be posted online, you must include the phrase PERSONAL IDENTIFYING INFORMATION in the first paragraph of your comment. 45 Op. 18 U.S.C. For all of these reasons, and for the additional reasons the operative OLC opinion explains in more detail, the Department believes that the best reading of the CARES Act is that an inmate whose period of home confinement the Director properly lengthened during the covered emergency period may remain in home confinement, at the Director's discretion, including after the covered emergency period ends. 42. Re: Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic Memorandum for Chief Executive Officers from Andre Matevousian The Attorney General instructed the Director to use the expanded home confinement authority provided in the CARES Act to place the most vulnerable inmates at the facilities most affected by COVID-19 in home confinement, following quarantine to prevent the spread of COVID-19 into the community, and guided by the factors set forth in the March 26, 2020 memorandum. These actions removed vulnerable inmates from congregate settings where COVID-19 spreads easily and quickly and also reduced crowding in BOP correctional facilities. at 516. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. This proposed rule, which codifies the Department's understanding of its authority under the CARES Act in furtherance of the management of Bureau institutions, is issued pursuant to these authorities and, when finalized, is intended to have the force of law. Related to: COVID-19, Incarceration, Sentencing Reform, Federal Advocacy. electronic version on GPOs govinfo.gov. 26, 2022) (Conditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease. This proposed rule falls within a category of actions that the Office of Management and Budget (OMB) has determined to constitute a significant regulatory action under section 3(f) of Executive Order 12866 because it may raise novel legal or policy issues arising out of implementation of section 12003(b)(2) of the CARES Act and, accordingly, it was reviewed by OMB. Pub. Third, the FSA created an incentive for eligible inmates to participate in programs shown to reduce their risk of recidivism by allowing individuals to earn time credits, which may be used for earlier transfer to prerelease custody, including home confinement, notwithstanding the time limits included in 18 U.S.C. For these reasons, it is important that consistent with the law and taking into account public safety and health concerns, that the most vulnerable inmates are released or transferred to home confinement, if possible.). When Congress passed the CARES Act back in March 2022, it lifted the normal 6 month ceiling on home confinement terms for inmates. 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. Most of the 17 offenses were drug-related. 301. 18 U.S.C. [30] But the current opinion also explains the rationale underlying its [23] [50] The term to place derives from a different statute18 U.S.C. 115-699, at 22-24 (2018) (The federal prison system needs to be reformed through the implementation of corrections policy reforms designed to enhance public safety by improving the effectiveness and efficiency of the federal prison system in order to control corrections spending, manage the prison population, and reduce recidivism.); H.R. It is in the best operational interests of the Bureau and the institutions it manages. The authority citation for part 0 continues to read as follows: Authority: CARES Act sec. 26, 2020), Federal Register. 38. provides that most people on home confinement should remain there through the end of their sentence. O.L.C. It was created pursuant to the First Step Act of 2018. on available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html Allowing certain inmates who were placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period will also afford a number of operational benefits. 53. 605(b)), reviewed this proposed rule and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Start Printed Page 36794 (last visited Apr. These indications of congressional intent further bolster the Department's view that any ambiguity in the CARES Act should be read to provide the Director with discretion to allow inmates placed in home confinement who have been successfully serving their sentences in the community to remain there, rather than return such inmates to secure custody BOP, You may bring the following items for your personal use during your stay at our hospital: Pyjamas and dressing gowns if you do not wish to wear the hospital's pyjamas. Abigail I. Leibowitz [37] COVID-19 pandemic presents unique challenges for correctional facilities, such as those the Bureau manages. Annual Determination of Average Cost of Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 1, 2021). It further implemented a requirement that inmates placed in home confinement receive instruction about how to protect themselves and others from COVID-19 transmission, based on guidance from CDC.[21]. As of December 2021, the BOP has transferred over 36,000 eligible inmates to home confinement following the instructions from the Attorney General on March 26, 2020, that the BOP prioritizes home confinement as an appropriate response to the Covid-19 pandemic.. Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, sec. The second memorandum made clear that although the Bureau should maximize the use of home confinement, particularly at affected institutions, the Bureau must continue to make an individualized determination whether home confinement is appropriate for each
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