News You Can Use: Recent developments in home confinement in the age of COVID-19

The number of positive-COVID-19 cases in the BOP continues to rise.

As of this morning the BOP reports  138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.

On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus.  Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” 

Despite that step, barriers remained to release.

On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”

On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.

The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement.  But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”

On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum.  BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General.  While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.

TAKEAWAYS

If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them.  Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.

The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:

(1) The age and vulnerability of the inmate to COVID-19;

(2) The security level of the facility;

(3) The inmate’s conduct in prison;

(4) The inmate’s score under PATTERN;

(5) The inmate’s release plan; and

(6) The inmate’s crime of conviction and assessment of danger posed to the community.

But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”

Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen.  Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”

 

 

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming