Executive Order 14074 was signed by President Joe Biden with the intention of “reforming our larger criminal justice system so that it protects and serves all people equally.” In the order, he also stated that the Attorney General should continue to identify persons who satisfy the eligibility standards outlined in the CARES Act and the First Step Act “… for release as part of the DOJ’s efforts to reduce the impact and spread of COVID-19…” However, the Federal Bureau of Prisons (BOP) is not living up to its responsibilities under the CARES Act and is not fully executing the First Step Act, which is keeping a significant number of people behind bars.
These days, there is a greater amount of discussion over the timing of the termination of the emergency conditions that were declared as a result of the CARES Act. It is a safe bet that it will not be resolved before the midterm elections in November, and it is also possible that it will continue through another COVID-19/flu season in 2023. When it came to federal convicts, the CARES Act gave the Director of the Bureau of Prisons the authority to extend the maximum amount of time a prisoner might spend in home confinement beyond what was statutorily permitted (6 months or 10 percent of the sentence imposed, whichever was less). In April 2020, the entire United States was fighting to figure out how to control the spread of COVID-19, and the key piece of advice that was given at the time was “Social Distancing.” The Bureau of Prisons was instructed to place offenders in home confinement once it was realized that social distancing was not possible in the prison setting. It got off to a quick start by telling hundreds of detainees that they were going home; but, a few days later, they were told that they would be staying at the facility instead. Since that time, the agency has had a difficult time developing a standard that can be followed across all 122 of its institutions in order to put the CARES Act into effect.
The following factors determine whether an inmate is eligible for home confinement under the CARES Act: 1) The inmate’s age (they must be over 50) and their vulnerability to COVID-19; 2) The security level of the facility housing the inmate, with priority given to inmates residing in low and minimum security facilities; 3) The inmate’s behavior while incarcerated; 4) The inmate’s risk score according to the PATTERN (risk assessment for recidivism and violence); 5) Although they fit the criteria, thousands of prisoners are nevertheless unable to leave the facility since they do not know when or if they will be released to serve a portion of their term at home. The inmates and their families have a far more challenging time of it in the surroundings of the prison because of the unpredictability and the threats that are present there. The majority of people who are eligible under the CARES Act have not been given a sentence of life in prison, and it is a low-risk proposition to let them serve out the remainder of their jail term on home confinement.
Since the CARES Act was signed into law in March of 2020, 4,902 prisoners have been allowed to serve their sentences in the comfort of their own homes. Although it may sound like a large number, the Bureau of Prisons’ population of detainees has expanded by more than 3,000 since that period, reaching a total of 158,000 inmates at the present time. How is it possible that the population of the BOP has grown over time when they were instructed to decrease the number of prisoners in their facilities? One of the contributing factors was the Bureau of Prisons’ (BOP) misunderstood and controversial internal guidance, which stated that in addition to adopting the criteria set by the Attorney General, it prioritized for home confinement inmates who had served at least 50 percent of their sentences or those who had 18 months or less renaming in their sentences and had served more than 25 percent of that sentence. This guidance stated that the BOP prioritized for home confinement inmates who had served more than 25 percent of that sentence. After receiving this information, case managers and counselors working in correctional facilities saw it not as a method of prioritizing, but rather as a method of selecting. It is most likely the standard that the BOP uses that is the least understood, and it is also one that is most unfair. Now, a significant number of prisoners, including those with serious health concerns who satisfy the requirements set forth by the Attorney General, remain incarcerated despite the fact that there has been an outbreak of COVID-19.
Inmates at FCC Lompoc, a facility that has been hit particularly hard during the pandemic, have filed a lawsuit (Central District of California, Case No. : 2:20-cv-04450), which is nothing more than an attempt to force the BOP to do the job that it was supposed to be doing under the CARES Act, which is transferring sick and vulnerable inmates to home confinement. The lawsuit was filed in the Central District of California. U.S. District Judge Consuelo B. Marshall granted a motion for a preliminary injunction filed by a group of Lompoc inmates on July 14, 2020. The injunction requires FCC Lompoc to “make full and speedy use of their authority under the CARES Act and evaluate each class member’s eligibility for home confinement which gives substantial weight to the inmate’s risk factors for severe illness and death from COVID-19 based on age (over 50), or Underly Even now, some two years after that injunction was issued, the institution is still detaining convicts who are eligible for home confinement, but the BOP is continuing to defend the case. It is absolutely craziness. The matter is currently in the process of being settled, which may result in the BOP actually carrying out its duties. It is possible that this will serve as a model for how the CARES Act, which will be repealed at some point, will be administered in the years to come.
The Bureau of Prisons (BOP) should be given credit for the transfer of inmates to home confinement in accordance with the CARES Act. This represents the biggest group of inmates held in community confinement in recent history. As of the 4th of March in 2022, the Bureau of Prisons reports that just a small fraction of offenders who were put in home confinement as a result of the CARES Act, approximately 3.7 percent, were returned to supervision due to rule violations, and only 8 were returned for new criminal conduct (6 for drug-related conduct, 1 for smuggling non-US citizens and 1 for escape). This has been a very successful program by any and all standards.
This accomplishment also comes with the additional benefit of saving money for the people who pay taxes. The daily cost of incarceration for a federal inmate at a federal facility was $107.85 in 2019, and it was $120.59 in 2020. This cost was in effect for the 2019 fiscal year. On the other hand, the Bureau of Prisons estimates that the daily cost of housing an offender in home confinement is around $55, which is significantly less than the cost of housing an inmate in secure custody in the year 2020. The Bureau of Prisons reported that there were 2,826 offenders subject to home confinement as a result of the CARES Act in January 2022. These inmates had release dates that were more than a year away. Taking into account only one year of house arrest for this cohort, that amounts to a savings of $67.7 million for only this group of incarcerated individuals.
Not only would the Bureau of Prisons (BOP) be able to save billions of dollars and a significant amount of money if it processed inmates for the CARES Act who were eligible, but it would also help lower the prison populations that have climbed since 2020. There are now 157,000 federal convicts, 79,000 of whom are housed in low or minimal security prisons. This population includes a significant number of individuals who are eligible for release under the CARES Act but the BOP has avoided granting it in order to keep their bottom line, in line..
If only the BOP were capable of performing its duties.