This proposed rule has been drafted and reviewed in accordance with section 1(b) of Executive Order 12866 (Regulatory Planning and Review) and section 1(b) of Executive Order 13563 (Improving Regulation and Regulatory Review). and breakthrough infections may occur even in fully vaccinated persons, who are then able to spread the disease. CARES Act sec. The Home Confinement Clearinghouse will match . (last visited Jan. 11, 2022). documents in the last year, 36 603(a), 132 Stat. Although the Department believes its understanding of CARES Act section 12003(b)(2) is the best reading of the statute for the reasons explained above, were a court to disagree and find the statute unclear, the Department's interpretation would be reasonable for those same reasons and the additional reasons explained below. This repetition of headings to form internal navigation links But she feels certain "we could have been releasing so many more people during the pandemic and we . U.S. Centers for Disease Control and Prevention, Basics of COVID-19 (updated Nov. 4, 2021), Since the . Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 11599 (Feb. 26, 2021); Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (Feb. 23, 2022). . 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. Data have shown that It further explained that inmates who engaged in violent or gang-related activity while in prison, those who incurred a violation within the past year, or those with a PATTERN score above the minimum range would not receive priority consideration under the memorandum. Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. departure from the three principal determinations upon which the January 2021 OLC opinion was grounded. 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. The Department's interpretation of the statute 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. . COVID-19 most often causes respiratory symptoms, but can also attack other parts of the body. 15. at *4. 2022 (OPI- RSD/RRM . Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. 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. Thus, in O.L.C. 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 Act's name is the Coronavirus Aid, Relief, and Economic Security Act. 5238. Management of inmates in home confinement since the beginning of the COVID-19 pandemic, the largest community confinement population in recent history, has been robust. 7. Home-Confinement Placements On any given day, there are anywhere from 500,000 to 550,000 people the nation's jail systemsroughly half of whom would qualify for a Cares Act type home confinement. 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. Relevant information about this document from Regulations.gov provides additional context. In response . Now, the BOP has the ability to allow those released to stay home. 3621(a) (A person who has been sentenced to a term of imprisonment . Accordingly, it is appropriate for the Department to consider whether the reintroduction into prison populations of individuals placed in home confinement, in part, upon consideration of their vulnerability to COVID-19[67] [59] 29, 2022). on This proposed rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. (last visited Apr. . 1501 3624(c)(2) as the Director deems appropriate. at *2, *15. Learn more here. available at https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5 following the end of the covered emergency period. Providing the Bureau with discretion to determine whether any inmate placed in home confinement under the CARES Act should return to secure custody will increase the Bureau's ability to respond to outside circumstances and manage its resources in an efficient manner that considers both public safety and the needs of individual inmates. See Congress further expanded the Bureau's use of home confinement through the FSA in three contexts. So the law increased the term of home confinement available to those held by BOP under 18 U.S.C. This view is reinforced by the structure of the CARES Act, and particularly by a comparison of section 12003(b)(2) with the section of the CARES Act that immediately follows it. prisoner may be placed in home confinement. The President declared the COVID-19 outbreak a national emergency beginning March 1, 2020; that national emergency was extended on February 24, 2021, and again on February 18, 2022, and is still in effect as of June 15, 2022. April 07, 2022. 45 Op. One avenue, enacted in response to the COVID-19 pandemic, is the Coronavirus Aid, Relief, and Economic Security Act or "CARES Act" of March 2020. Prob. 11. 18 U.S.C. . In this Issue, Documents [3] See id. Document page views are updated periodically throughout the day and are cumulative counts for this document. The . mum amount of time" for home confinement during the emergency and that the consequences of those decisions might cont inue, even though the authority to make the decision in the first instance has lapsed. 30. 26. 3(b), 122 Stat. and discretion to designate the place of those inmates' imprisonment. Early studies demonstrated that around 64 percent of persons incarcerated in BOP institutions who were offered COVID-19 vaccinations accepted them. 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. As has already been discussed, the Department's interpretation of the CARES Act is aligned with the relevant statutory language, structure, purpose, and history. 64. Section 3621(b) also authorizes the Bureau to direct the transfer of a prisoner at any time, subject to the same individualized assessment. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. They are true success stories. [53] 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. Language and Structure of the CARES Act, PART 0ORGANIZATION OF THE DEPARTMENT OF JUSTICE, https://www.federalregister.gov/d/2022-13217, MODS: Government Publishing Office metadata, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf, https://www.justice.gov/olc/file/1457926/download, part 0 of title 28 of the Code of Federal Regulations, https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html, https://covid.cdc.gov/covid-data-tracker/#datatracker-home, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/correction-detention/COVID-Corrections-considerations-for-loosening-restrictions-Webinar.pdf, https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVID-19%20and%20FSA%20provisions%20-%20final%20bipartisan%20text%20with%20signature%20blocks.pdf, https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf, https://www.bop.gov/inmates/fsa/pattern.jsp, http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf, https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf, https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf, https://www.bop.gov/coronavirus/faq.jsp, https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf, https://www.justice.gov/olc/file/1355886/download, https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5, https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/living-prisons-jails.html, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html. (last visited Apr. provide legal notice to the public or judicial notice to the courts. These inmates might lose the opportunity to participate in potentially beneficial programming and treatment offered only in BOP facilities, which they might have otherwise taken advantage of if placed in secure custody. The Department expects these numbers will continue to fluctuate as inmates continue to serve their sentences and the Bureau continues to conduct individualized assessments to make home confinement placements under the CARES Act for the duration of the covered emergency period. available at https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf. et al., sec. et al., COVID-19 vaccination in the Federal Bureau of Prisons, December 2020-April 2021, 12003(c)(1), 134 Stat. Other potential costs relate to inmates serving longer sentences in home confinement as a result of the CARES Act. See U.S. Centers for Disease Control and Prevention, COVID Data Tracker, 67. Individuals placed in home confinement under the CARES Act, like other inmates in home confinement, remain in the custody of the Bureau. 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. The Department has concluded that the most reasonable reading of the CARES Act permits the Bureau to continue to make supporting this management principle. 18 U.S.C. See Bureau of Prisons, Home Confinement Under the CARES Act at 2 (Nov. 20, 2020). Older adults and individuals with underlying medical conditions are at increased risk of severe illness or death. better and aid in comparing the online edition to the print edition. The Proposed Rule concerns people that went to home confinement under the CARES Act. 27. Start Printed Page 36792 Home confinement for federal prisoners is about to expand with the release of the Federal Bureau of Prisons ("BOP") new April 4, 2019, Operations Memorandum, Home Confinement Under the First Step Act.You can access a copy of the entire operations memorandum here: BOP Home Confinement Memorandum.We have previously reported about the BOP's implementation of the Elderly Home Detention Pilot Program. The CARES Act allowed for the compassionate release of prisoners who had risk factors for the virus, according to the Centers for Disease Control (CDC), and who pose a lower risk of flight. It was viewed 12 times while on Public Inspection. should verify the contents of the documents against a final, official Second, the FSA reauthorized and expanded the pilot program to place eligible elderly offenders in home confinement by lowering the age requirement from 65 to 60 years old, reducing the amount of the sentence imposed an inmate must have served to qualify for the program, and allowing it to be applied to eligible terminally ill inmates regardless of age. See id. (Apr. The final rule should be published any day but the draft rule called for the end of CARES Act home confinement 30 days after the end of the emergency. That law also limits the duration of home confinement "to the lesser of ten percent of a prisoner's sentence or six months," a term the CARES Act expandedbut only until "the covered emergency period" ends. to the courts under 44 U.S.C. documents in the last year, 1411 45. Home Confinement While the criteria for placement in home confinement . [58] The CARES Act authorizes the Director of the Bureau of Prisons to lengthen the amount of time a prisoner may be placed in home confinement beyond the statutory maximum normally allowed under 18 U.S.C. That guidance also instructed that pregnant inmates should be considered for placement in a community program, to include home confinement. https://www.bop.gov/coronavirus/faq.jsp Federal Bureau of Prisons, PATTERN Risk Assessment, Essentially, the CARES Act allows select eligible inmates to be placed in home confinement during the federal COVID-19 state of emergency. documents in the last year, by the Coast Guard 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. The Department's interpretation is also consistent with congressional action demonstrating an interest in increasing the Bureau's use of home confinement. Initially, prioritization is being made to review inmates who meet the following . A group of human rights lawyers wants the United Nations to examine why Black people spend an unusually long time in solitary confinement.. on 69. This criterion was later updated to include low and minimum PATTERN scores. See 59. 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. 54. An inmate's failure to comply with the conditions of home confinement results in disciplinary action, which may include a return to secure custody or prosecution for escape. DATES: Comments are due on or before July 21, 2022. [28] At the outset, the Department has authority to promulgate rules to manage the Bureau of Prisons, and to administer CARES Act section 12003(b)(2). [60] 03/03/2023, 827 Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. The Attorney General, under the Regulatory Flexibility Act (5 U.S.C. and services, go to 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. 61. In addition, implementation of this interpretation is operationally sound and provides flexibility in managing BOP-operated institutions as well as cost savings for the Bureau. See Pursuant to the Act, the Federal Bureau of Prisons (BOP) was ordered to prioritize the use of home confinement as a tool for combatting the risks of COVID-19 for vulnerable inmates. Rodriguez A memo issued in the final days of the Trump administration threatens to send around 4,500 people on home confinement back to . . [House Hearing, 117 Congress] [From the U.S. Government Publishing Office] THE FIRST STEP ACT, THE PANDEMIC, AND COMPASSIONATE RELEASE: WHAT ARE THE NEXT STEPS FOR THE FEDERAL BUR 27, 2020, 134 Stat 281). Id. 1. __, at *2, *5-7. [5] are not part of the published document itself. 657, 692-93 (2008). 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. (April 3 Memo). documents in the last year, by the National Oceanic and Atmospheric Administration 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. Although the numbers will likely differ for FY 2021 and beyond, the Department and the Bureau expect that the proposed rule will benefit them as a result of the avoidance of costs the Bureau would otherwise expend to confine the affected inmates in secure custody.