Rule2023-07063
Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act
Primary source
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Published
April 4, 2023
Effective
May 4, 2023
Issuing agencies
Justice Department
Abstract
The Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") authorizes the Director of the Bureau of Prisons ("Director"), during the covered emergency period and upon a finding by the Attorney General that emergency conditions resulting from the Coronavirus Disease 2019 ("COVID-19") pandemic materially affect the functioning of the Bureau of Prisons ("Bureau" or "BOP"), to lengthen the maximum amount of time for which a prisoner may be placed in home confinement. The Department of Justice ("Department" or "DOJ") promulgates this final rule to affirm that the Director has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.
Full Text
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<title>Federal Register, Volume 88 Issue 64 (Tuesday, April 4, 2023)</title>
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[Federal Register Volume 88, Number 64 (Tuesday, April 4, 2023)]
[Rules and Regulations]
[Pages 19830-19840]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07063]
[[Page 19830]]
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DEPARTMENT OF JUSTICE
28 CFR Part 0
[BOP Docket No. 1179; AG Order No. 5641-2023]
RIN 1120-AB79
Office of the Attorney General; Home Confinement Under the
Coronavirus Aid, Relief, and Economic Security (CARES) Act
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Coronavirus Aid, Relief, and Economic Security Act
(``CARES Act'') authorizes the Director of the Bureau of Prisons
(``Director''), during the covered emergency period and upon a finding
by the Attorney General that emergency conditions resulting from the
Coronavirus Disease 2019 (``COVID-19'') pandemic materially affect the
functioning of the Bureau of Prisons (``Bureau'' or ``BOP''), to
lengthen the maximum amount of time for which a prisoner may be placed
in home confinement. The Department of Justice (``Department'' or
``DOJ'') promulgates this final rule to affirm that the Director has
the authority and discretion to allow prisoners placed in home
confinement under the CARES Act to remain in home confinement after the
expiration of the covered emergency period.
DATES: This rule is effective May 4, 2023.
FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant
General Counsel, Federal Bureau of Prisons, (202) 353-4885.
SUPPLEMENTARY INFORMATION:
I. Overview
In this document, the Department promulgates a final rule
(``rule'') granting the Director the authority and discretion to allow
prisoners placed in home confinement under the CARES Act to remain in
home confinement after the expiration of the covered emergency period.
The Department published a proposed rule on this subject on June 21,
2022 (87 FR 36787), with a comment deadline of July 21, 2022.
II. Background \1\
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\1\ For a more detailed discussion of the overview and
background of CARES Act home confinement, see Sections II.A. and
II.B. of the preamble to the proposed rule. 87 FR 36788-95.
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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.\2\ COVID-19 is caused by an extremely
contagious virus known as SARS-CoV-2 that has spread quickly around the
world.\3\ COVID-19 most often causes respiratory symptoms, but can also
attack other parts of the body. The virus spreads when an infected
person breathes out droplets and particles, and another person breathes
in air that contains these droplets and particles, or they land on
another person's eyes, nose, or mouth.\4\ Individuals in close contact
with an infected person--generally less than six feet apart--are most
likely to get infected. Although COVID-19 often presents with mild
symptoms, some people become severely ill and die. Older adults and
individuals with underlying medical conditions are at increased risk of
severe illness.\5\
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\2\ Proclamation 9994, Declaring a National Emergency Concerning
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar.
18, 2020).
\3\ U.S. Centers for Disease Control and Prevention, Basics of
COVID-19 (last updated Nov. 4, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html">https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html</a>.
\4\ U.S. Centers for Disease Control and Prevention, How COVID-
19 Spreads (last updated Aug. 11, 2022), <a href="https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html">https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html</a>.
\5\ U.S. Centers for Disease Control and Prevention, Basics of
COVID-19 (last updated Nov. 4, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html">https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html</a>.
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The U.S. Centers for Disease Control and Prevention (``CDC'') has
recognized that the COVID-19 pandemic presents unique challenges for
correctional facilities, such as those the Bureau manages.\6\ These
challenges include a high risk of rapid transmission due to congregate
living settings, and a high risk of severe disease due to the high
prevalence of pre-existing conditions and risk factors associated with
severe COVID-19 illness in prison populations. Since the earliest days
of the pandemic, Department and Bureau officials have worked in tandem
to develop and implement a plan to mitigate the high risk of rapid
transmission of COVID-19 in the Federal prison system.
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\6\ CDC, Considerations for Modifying COVID-19 Prevention
Measures in Correctional and Detention Facilities Webinar Transcript
(June 22, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/videos/covid-19-prevention/Webinar-Transcript-508.pdf">https://www.cdc.gov/coronavirus/2019-ncov/videos/covid-19-prevention/Webinar-Transcript-508.pdf</a>.
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In March 2020, several United States Senators urged the Attorney
General and the Director to utilize available statutory authorities to
transfer vulnerable prisoners to home confinement.\7\ Transferring
these vulnerable prisoners to home confinement would remove them from
an environment in which contagious viruses thrive due to the inherent
risks of congregate settings and the unique restrictions that
correctional custody places on an individual's ability to maintain an
appropriate social distance, as well as permit them to undertake other
measures to protect themselves in ways they are not able to do in
secure custody.
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\7\ Letter for William P. Barr, Attorney General, and Michael
Carvajal, Director, BOP, from Senator Richard J. Durbin et al. (Mar.
23, 2020), <a href="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.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</a>.
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The Attorney General issued a memorandum on March 26, 2020,
instructing the Director to prioritize the use of home confinement,
where authorized, to protect the health and safety of inmates and
Bureau staff by minimizing the risk of COVID-19 spread in Bureau
facilities, while continuing to keep communities safe.\8\ The Attorney
General directed that the determination of whether to place an inmate
in home confinement should be made on an individualized basis,
considering the totality of the inmate's circumstances, statutory
requirements, and a non-exhaustive list of discretionary factors:
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\8\ Memorandum for the Director, BOP, from the Attorney General,
Re: Prioritization of Home Confinement As Appropriate in Response to
COVID-19 Pandemic (Mar. 26, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf</a>.
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<bullet> The age of the inmate and the vulnerability of the inmate
to COVID-19;
<bullet> The security level of the facility housing the inmate,
with priority given to inmates residing in low- and minimum-security
facilities;
<bullet> The inmate's conduct in prison;
<bullet> The inmate's risk score under the Prisoner Assessment Tool
Targeting Estimated Risk and Needs (``PATTERN''); \9\
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\9\ PATTERN is a tool that measures an inmate's risk of
recidivism and provides her with opportunities to reduce her risk
score. See, e.g., BOP, PATTERN Risk Assessment, <a href="https://www.bop.gov/inmates/fsa/pattern.jsp">https://www.bop.gov/inmates/fsa/pattern.jsp</a>. It was created pursuant to the First Step
Act of 2018. See Public Law 115-391, sec. 101(a), sec. 3632(a), 132
Stat. 5194, 5196-97.
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<bullet> Whether the inmate had a reentry plan that would help
prevent recidivism and maximize public safety; and
<bullet> The inmate's crime of conviction and the danger the inmate
would pose to the community.\10\
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\10\ Memorandum for the Director, BOP, from the Attorney
General, Re: Prioritization of Home Confinement As Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf</a>.
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The Attorney General's memorandum explained that some offenses
would
[[Page 19831]]
render an inmate ineligible for home confinement, and that other
serious offenses would weigh more heavily against consideration for
home confinement. 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.\11\
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\11\ Memorandum for the Director, BOP, from the Attorney
General, Re: Prioritization of Home Confinement As Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf</a>. This criterion was
later updated to include low and minimum PATTERN scores. See
Memorandum for Chief Executive Officers, from Andre Matevousian et
al., BOP, Re: Home Confinement (Apr. 13, 2021), <a href="https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf">https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf</a>.
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On March 27, 2020, the day after the Attorney General's first
memorandum, the President signed into law the CARES Act,\12\ which
expanded the Director's authority and discretion to place inmates in
home confinement in direct response to the COVID-19 pandemic during a
``covered emergency period.'' In relevant part, the CARES Act provides
that the ``covered emergency period'' begins the date the President
declared a national emergency with respect to COVID-19 and ends 30 days
after the date on which the national emergency terminates.\13\
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\12\ ``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.'' CARES Act, Public Law 116-136, sec.
12003(b)(2), 134 Stat. 281, 516 (2020).
\13\ Id. sec. 12003(a)(2).
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On April 3, 2020, the Attorney General issued a second memorandum
to the Director, finding that emergency conditions were materially
affecting the functioning of the Bureau, and instructing the Director
to use the expanded home confinement authority provided in the CARES
Act to place in home confinement the most vulnerable inmates at the
facilities most affected by COVID-19.\14\ The Bureau subsequently
issued internal guidance that adopted the criteria in the Attorney
General's memoranda and prioritized for home confinement inmates who
had served 50 percent or more of their sentences, or those who had 18
months or less remaining on their sentences and had served more than 25
percent of that sentence.\15\ The Bureau later clarified that inmates
with low or minimum PATTERN scores would qualify equally for home
confinement, and that the factors assessed to ensure inmates were
suitable for home confinement included verifying that an inmate's
current or prior offense was not violent, not a sex offense, and not
terrorism-related.\16\ Since March 2020, the Bureau has significantly
increased the number of inmates placed in home confinement under the
CARES Act and other preexisting authorities. Between March 26, 2020,
and January 23, 2023, the Bureau placed in home confinement a total of
52,561 inmates.\17\ The majority of those inmates have since completed
their sentences; as of January 23, 2023, there were 5,597 inmates in
home confinement.\18\ According to the Bureau, 3,434 of these inmates
were placed in home confinement pursuant to the CARES Act.\19\
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\14\ Memorandum for the Director, BOP, from the Attorney
General, Re: Increasing Use of Home Confinement at Institutions Most
Affected by COVID-19, at 1 (Apr. 3, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf</a>.
\15\ See, e.g., Memorandum for Chief Executive Officers, from
Andre Matevousian et al., BOP, Re: Home Confinement (Nov. 16, 2020),
<a href="https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf">https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf</a>.
\16\ See Memorandum for Chief Executive Officers, from Andre
Matevousian et al., BOP, Re: Home Confinement (Apr. 13, 2021),
<a href="https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf">https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf</a>.
\17\ See BOP, Frequently Asked Questions regarding potential
inmate home confinement in response to the COVID-19 pandemic,
<a href="https://www.bop.gov/coronavirus/faq.jsp">https://www.bop.gov/coronavirus/faq.jsp</a> (last visited Jan. 3, 2023).
\18\ See id.
\19\ As of January 25, 2023, 5,613 inmates are currently in home
confinement, with 3,436 of those individuals in CARES Act home
confinement.
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An inmate placed in home confinement is not considered released
from Bureau custody. Rather, the inmate continues serving their
sentence at home in their community. These individuals must follow a
set of rules designed to aid in their management, facilitate their
reintegration into society, and support their rehabilitative efforts.
For example, they are required to remain in the home during specified
hours and are permitted to leave only for work or other preapproved
activities, such as occupational training or therapy. Moreover, inmates
in home confinement must submit to drug and alcohol testing and
counseling requirements. Supervision staff monitor inmates' compliance
with the conditions of home confinement by electronic monitoring
equipment or, in a few cases for medical or religious accommodations,
frequent telephone and in-person contact.\20\ To remain in home
confinement, inmates must comply with their agreed-upon conditions of
supervision.\21\
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\20\ BOP, Program Statement 7320.01, Home Confinement (Sept. 6,
1995), as updated by Change Notice (Dec. 15, 2017), <a href="https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf">https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf</a>.
\21\ See id. at 12-15 (including agreement outlining terms of
home confinement); see also BOP Form BP-A0548, Home Confinement and
Community Control Agreement (June 2010), <a href="https://www.bop.gov/policy/forms/BP_A0548.pdf">https://www.bop.gov/policy/forms/BP_A0548.pdf</a>.
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Section 12003(b)(2) of the CARES Act authorizes the Director to
place inmates in home confinement, notwithstanding the time limits set
forth in 18 U.S.C. 3624(c)(2), during and for 30 days after the
termination of the national emergency declaration concerning COVID-19,
provided the Attorney General has made a finding that emergency
conditions are materially affecting the Bureau's functioning. By the
Act's plain terms, the Director's authority to place an inmate in home
confinement under the CARES Act expires at the end of the covered
emergency period, or if the Attorney General revokes his finding.
The Act is silent, however, as to whether the Director has
discretion to determine whether specific individuals placed in home
confinement under the CARES Act may remain there after the expiration
of the covered emergency period, or whether all inmates who are not
eligible for home confinement under another authority must be returned
to secure custody. The Department has concluded that the most
reasonable interpretation of the CARES Act permits the Bureau to
continue to make individualized determinations about the conditions of
confinement for inmates placed in home confinement under the CARES Act,
as it does with respect to all prisoners,\22\ following the end of the
covered emergency period. In its recent opinion, the Office of Legal
Counsel (``OLC'') concluded that section 12003(b)(2) does not require
the Bureau to return to secure custody inmates in CARES Act home
confinement following the end of the covered emergency period. See
Discretion to Continue the Home-Confinement Placements of Federal
Prisoners After the COVID-19 Emergency, 45 Op. O.L.C. __ (Dec. 21,
2021) (``Home-Confinement Placements''). The Department hereby
incorporates the analysis from that OLC opinion into the preamble of
this final rule. Even if the relevant provision of the CARES Act were
considered ambiguous, however, the Department's interpretation
represents a reasonable one that would warrant deference under Chevron,
U.S.A., Inc. v. Natural
[[Page 19832]]
Resource Defense Council, Inc., 467 U.S. 837 (1984).\23\
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\22\ See 18 U.S.C. 3621(a) (``A person who has been sentenced to
a term of imprisonment . . . shall be committed to the custody of
the Bureau of Prisons until the expiration of the term imposed . . .
.'').
\23\ See Home-Confinement Placements, 45 Op. O.L.C. __, at *2,
*15.
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While the home confinement program under the CARES Act has been a
measurable success, inmates and their families have sought assurance
that those already in home confinement will not be abruptly returned to
secure custody after the end of the covered emergency period. The
Department remains sensitive to these concerns and agrees with the
expressions of support from some Members of Congress for expanding the
use of home confinement based on the needs of individual offenders.\24\
With that in mind, the Department's interpretation is 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 require the Director to return such inmates to secure
custody en masse without making an individualized assessment or
identifying a penological, rehabilitative, public health, or public
safety basis for the action. Although placements under the CARES Act
were not made for reentry purposes, the Department concludes that 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 supporting inmates' eventual
reentry into the community.
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\24\ See, e.g., Senate Committee on the Judiciary, Durbin,
Booker: We Should Not Force Individuals on Home Confinement to
Return to Prison (July 20, 2021), <a href="https://www.judiciary.senate.gov/press/dem/releases/durbin-booker-we-should-not-force-individuals-on-home-confinement-to-return-to-prison">https://www.judiciary.senate.gov/press/dem/releases/durbin-booker-we-should-not-force-individuals-on-home-confinement-to-return-to-prison</a>; Letter for Colette S. Peters,
Director, BOP, from Representative Bonnie Watson Coleman,
Representative Pramila Jayapal, and Representative Henry C. ``Hank''
Johnson Jr. (Oct. 7, 2022), <a href="https://watsoncoleman.house.gov/imo/media/doc/letter_to_bop_dir_peters.pdf">https://watsoncoleman.house.gov/imo/media/doc/letter_to_bop_dir_peters.pdf</a>; Press Release,
Representative Kelly Armstrong, Armstrong Supports DOJ Decision
Allowing Inmates Released Under CARES Act to Remain in Home
Confinement (Dec. 21, 2021), <a href="https://armstrong.house.gov/media/press-releases/armstrong-supports-doj-decision-allowing-inmates-released-under-cares-act">https://armstrong.house.gov/media/press-releases/armstrong-supports-doj-decision-allowing-inmates-released-under-cares-act</a>.
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After publication of this final rule, the Department and the Bureau
will work together to develop guidance to explain objective criteria
the Bureau will use to make individualized determinations as to whether
any inmate placed in home confinement under the CARES Act should be
returned to secure custody. Providing the Bureau with discretion to
determine whether any inmate placed in home confinement under the CARES
Act should return to secure custody will bolster the Bureau's ability
to efficiently manage its resources and nimbly address changing
circumstances in the community, in relation to the needs and profiles
of individual inmates.
* * * * *
For the reasons provided in this final rule, the Department
codifies 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. This rule reflects the
interpretation of the CARES Act set forth in OLC's December 21, 2021,
opinion,\25\ is consistent with recent legislation from Congress
supporting expanded use of home confinement,\26\ and advances the best
interests of inmates and the Bureau from penological, rehabilitative,
public health, and public safety perspectives.\27\
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\25\ See generally Section II.C. of the preamble to the proposed
rule (87 FR 36790-92).
\26\ See generally Section II.D. of the preamble to the proposed
rule (87 FR 36792-93).
\27\ See generally Section II.E. of the preamble to the proposed
rule (87 FR 36793-95).
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III. Discussion of Comments and the Department's Responses.
A. General Overview
The Department received a total of 71 comments in response to the
notice of proposed rulemaking. Of those 71 comments, 66 were
substantive,\28\ and of those 66 substantive comments, three were
neutral (neither in support of, nor in opposition to, the proposed
rule) and one was opposed, leaving 62 total substantive comments in
support of the final rule. Of the 62 total substantive comments in
support, 28 are substantive statements in support, with no suggested
revisions, while 34 are substantive statements in support, with
suggested revisions.
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\28\ Of the 71 comments, three were duplicate electronic
submissions; one comment was completely blank; and one comment was
untimely, although the attachment to it was still added to comment
BOP-2022-0001-0066, which was timely filed by the same organization.
Thus, there are 66 substantive comments in total.
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B. Comments in Support
The 62 substantive comments in support collectively emphasized
several benefits to individuals and society of allowing inmates to
remain in CARES Act home confinement after the expiration of the
covered emergency period. Among the benefits mentioned are (1) the
already-active and continuing process of their reintegration into
society; (2) rehabilitative steps they have taken toward becoming
contributing members of their community; (3) gainful employment they
have secured or educational courses in which they have enrolled; (4)
continued care for children or elderly parents; and (5) relationships
with family and friends that have begun to mend. Additional benefits in
support include (6) the notable cost savings to taxpayers; and (7) a
reduction in health and safety risks to Bureau staff and inmates that
result from overcrowding.
While the 34 substantive statements in support, with suggested
revisions, were in favor of the final rule, these commentors also put
forth four revisions, and urged the Department either to place the
revisions in the text of the final rule or to address them in a
separate rulemaking. The various suggested revisions include: (1)
expanding CARES Act home confinement eligibility based on existing law
to increase the number of inmates considered for placement; (2)
clarifying that sentence length will not be used as a criterion for
return to secure custody; (3) establishing clear objective criteria
Bureau-wide so inmates in home confinement are on notice of what
potential rule violations would prompt a return to secure custody; and
(4) creating an administrative process by which inmates accused of
violations and presented with a return to secure custody can avail
themselves of due process protections and challenge their alleged
violations. Each of these four suggested revisions is discussed
separately in Section C of this preamble.
The Department first briefly addresses each of the 7 benefits
raised by the 62 comments in support, noting that 22 of the commentors
self-identified as either a Bureau inmate currently in CARES Act home
confinement, or a family member of a Bureau inmate affected directly by
CARES Act home confinement.
(1) The Already-Active Process of These Individuals' Reintegration Into
Society
Several commentors noted that some inmates have been in home
confinement since the earliest days of the pandemic, meaning they have
already spent nearly two and a half years reintegrating into society.
One commentor noted that since being placed in home confinement on
December 29, 2020, she has become a successfully integrated, law-
abiding citizen. She urged the Department to allow those like her to
continue being successful by remaining in home confinement. Another
commentor stated he has just over 4 years remaining on his sentence,
and that he is employed and provides care for his elderly parents. He
also noted he has lost weight and that, as a result, his diabetes and
blood pressure are better managed.
[[Page 19833]]
Yet another commentor, in home confinement since May 2021, remarked
that he started a job as a paralegal, became a part-time student at a
university, and is engaged in rebuilding relationships with his
parents, who are in their 70s.
(2) The Rehabilitative Steps These Individuals Have Taken Toward
Becoming Valuable Members of Their Communities
Several commentors touted the rehabilitative steps inmates in home
confinement have already taken. One commentor emphasized that
individuals uninterested in pursuing criminal activity inside prison do
better at home and with supportive families, rather than remaining
inside a prison where such criminal enterprises sometimes thrive.
Another commentor, in expressing concern about whether he would be
among the inmates recalled to secure custody from home confinement,
noted that such a result would separate him from his job, church,
family care, and his own medical care--all of which have aided him in
his rehabilitation. A commentor in home confinement since May 2020 said
being home has empowered him and other elderly inmates like him to
become productive members of society once again, and to proactively
manage their age-related health conditions.
(3) The Gainful Employment They Have Secured or Educational Courses in
Which They Have Enrolled
Several commentors noted that some inmates in home confinement have
enrolled in classes or secured jobs. Enrollment in college, gainful
employment, and community volunteer work have been made possible by
these inmates' placement in home confinement in the communities where
they intend to live. They have been able to develop and improve their
future educational or employment opportunities in their communities.
(4) The Care for Elderly Parents or Children for Whom They Have Been
Providing
Several commentors specifically raised the issues of parent-care
and childcare, and how being home has enabled them to provide that care
and lessen the burden for other caregivers. One commentor underscored
how his time in home confinement has allowed him to care for his
elderly parents, both of whom have experienced markedly improved health
due, in part, to his care for them. Other commentors emphasized the
familial benefits of having mothers and fathers at home with children.
(5) The Relationships With Family and Friends That Have Begun To Mend
Many commentors noted that inmates placed in home confinement have
had months, and, in some cases, years, to begin the time-intensive and
difficult process of trying to mend relationships with family and
friends. The crux of these commentors' concern was that abruptly
returning any of these inmates to secure custody would jeopardize the
progress already made and would threaten to negate the efforts already
expended.
(6) The Notable Cost Savings To Taxpayers
Several commentors also touted as a benefit to taxpayers the
statistics cited in the proposed rule, showing how much less it costs
to supervise an inmate in CARES Act home confinement than housing that
same individual in secure custody inside a Bureau institution. Most of
these commentors indicated they view a reduction in prison populations
by operation of a program that supervises home confinement inmates for
significantly less money to be a win-win for the taxpaying public and
the overburdened prison system.
(7) The Reduction in Health and Safety Risks to Bureau Staff and
Inmates That Result From Crowding
A few commentors viewed the proposed rule as providing a benefit to
the health and safety of inmates and staff, alike. With vulnerable
inmates being transferred to home confinement, prison populations
shrink and the problem of crowding improves, thereby reducing health
and safety risks to other inmates and Bureau staff.
Department Response: The Department agrees with these comments and
believes the seven benefits noted by them are, indeed, important
considerations in support of this final rule. Congress itself, as
demonstrated through the passage of the Second Chance Act of 2007
(``SCA'') and the First Step Act of 2018, has consistently shown its
intention in passing legislation aimed at appropriately preparing
inmates for successful reintegration into society. Part of addressing
this congressional intent involves an ongoing reevaluation of the
societal and individualized benefits of incarceration versus non-
custodial rehabilitative programs.
The Department and the Bureau know home confinement provides
important penological benefits as one of the last steps in the reentry
process. An inmate would usually be moved over the course of a sentence
to progressively less restrictive conditions of confinement--often from
a secure prison, to a residential reentry center, to home confinement--
to provide transition back into the community with support, resources,
and supervision from the agency. Inmates who are provided the types of
benefits home confinement can afford, such as opportunities to rebuild
ties to family and to return to the workplace and to the community, may
ultimately be less likely to recidivate.\29\ Accordingly, 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.
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\29\ See SCA, Public Law 110-199, sec. 3(b)(6), (7), (19), 122
Stat. 657, 659-60 (2008) (``According to the Bureau of Prisons,
there is evidence to suggest that inmates who are connected to their
children and families are more likely to avoid negative incidents
and have reduced sentences. . . . Released prisoners cite family
support as the most important factor in helping them stay out of
prison. . . . Transitional jobs programs have proven to help people
with criminal records to successfully return to the workplace and to
the community, and therefore can reduce recidivism.'').
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Supervision of inmates in home confinement is also significantly
less costly for the Bureau than housing inmates in secure custody. In
Fiscal Year (``FY'') 2019, the cost of incarceration fee (``COIF'') for
a Federal inmate in a Federal facility was $107.85 per day; in FY 2020,
it was $120.59 per day.\30\ In contrast, according to the Bureau, an
inmate in home confinement costs an average of $55.26 per day--less
than half the cost of an inmate in secure custody in FY 2020. Although
the Bureau's decision to place an inmate in home confinement is based
on many factors, where the Bureau deems home confinement appropriate
for a particular inmate, that decision has the added benefit of
reducing the Bureau's expenditures. Such cost savings were among the
intended benefits of the First Step Act, regarding which Congress cited
a need to ``control corrections spending, manage the prison population,
and reduce recidivism.'' \31\
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\30\ Annual Determination of Average Cost of Incarceration Fee
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
\31\ See, e.g., H.R. Rep. No. 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.'').
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Finally, the Bureau needs flexibility to consider whether continued
home
[[Page 19834]]
confinement for CARES Act inmates is in the interest of the public
health, and whether reintroduction of CARES Act inmates into secure
facilities would create the risk of new outbreaks of COVID-19 among the
prison population--even after the conclusion of the broader pandemic
emergency. It is now well established that congregate living settings,
and correctional facilities in particular, heighten the risk of COVID-
19 spread due to multiple factors.\32\ Data have shown that crowding in
prisons, which makes social distancing difficult, if not impossible, is
associated with increased incidence of COVID-19.\33\ Although COVID-19
vaccines are widely available and effective at preventing serious
illness, hospitalization, and death, and also help protect against
infection, not all incarcerated persons will elect to receive COVID-19
vaccinations,\34\ and breakthrough infections may occur even in fully
vaccinated persons, who are then able to spread the disease.\35\
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\32\ See, e.g., Pandemic Response Accountability Committee, Key
Insights: COVID-19 in Correctional and Detention Facilities, at 2
(May 12, 2021), <a href="https://www.oversight.gov/sites/default/files/oig-reports/PRAC/Key-Insights-COVID-19-Correctional-and-Detention-Facilities.pdf">https://www.oversight.gov/sites/default/files/oig-reports/PRAC/Key-Insights-COVID-19-Correctional-and-Detention-Facilities.pdf</a>; Nat'l Academies of Sciences, Engineering, and
Medicine, Decarcerating Correctional Facilities During COVID-19:
Advancing Health, Equity, and Safety 23-44 (Emily A. Wang et al.,
eds., 2020), <a href="https://doi.org/10.17226/25945">https://doi.org/10.17226/25945</a>.
\33\ Abigail I. Leibowitz et al., Association Between Prison
Crowding and COVID-19 Incidence Rates in Massachusetts Prisons,
April 2020-January 2021, 181 JAMA Internal Med. 1315 (2021); see
also Nat'l Academies of Sciences, Engineering, and Medicine,
Decarcerating Correctional Facilities During COVID-19: Advancing
Health, Equity, and Safety 26-27 (Emily A. Wang et al., eds., 2020),
<a href="https://doi.org/10.17226/25945">https://doi.org/10.17226/25945</a>.
\34\ An early study demonstrated that around 64 percent of
persons incarcerated in BOP institutions who were offered COVID-19
vaccinations accepted them. See Liesl M. Hagan et al., COVID-19
vaccination in the Federal Bureau of Prisons, December 2020-April
2021, 39 Vaccine 5883, 5883, 5887 (2021).
\35\ CDC, COVID-19 After Vaccination: Possible Breakthrough
Infection (updated June 23, 2022), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html</a>.
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More contagious variants of the virus that causes COVID-19 could
exacerbate the spread, and it is unknown whether currently available
vaccines will be effective against new variants that may arise.
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,\36\ 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.
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\36\ See Memorandum for the Director, BOP, from the Attorney
General, Re: Prioritization of Home Confinement As Appropriate in
Response to COVID-19 Pandemic at 1-2 (Mar. 26, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf</a>
(directing the Bureau to consider, among other discretionary
factors, ``[t]he age and vulnerability of [an] inmate to COVID-19''
when assessing which inmates should be placed in home confinement).
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C. Comments With Suggested Revisions
The 34 substantive statements in support, with suggested revisions,
collectively propose four changes either to the final rule or by
operation of a separate notice-and-comment rulemaking. Each proposed
revision is discussed below.
(1) Expanding CARES Act Home Confinement Eligibility Based on Existing
Law To Increase the Number of Inmates Who Can Be Considered
Twelve commentors specifically called for the expansion of CARES
Act home confinement to increase the number of inmates who initially
qualify. These comments focused on expansion of the program to include
more non-violent offenders (especially those with drug offenses),
regardless of the time left to serve on their sentences. These
commentors suggest that violent offenders should remain in secure
custody, but they urge the Department and the Bureau to broaden the
criteria for CARES Act home confinement so that others may qualify.
These commentors cite to the statistics and arguments contained in the
proposed rule in support of the conclusion that the CARES Act home
confinement program not only works, but also has been a success.
Department Response: The Department interprets these commentors'
suggestion to be an expansion of the current eligibility criteria that
are in place and that were developed by the Bureau in light of the
Attorney General's April 3, 2020, memorandum. In that memorandum, the
Attorney General instructed the Director to use the expanded home
confinement authority provided in the CARES Act to place in home
confinement the most vulnerable inmates at the facilities most affected
by COVID-19, 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.\37\ The April 3, 2020, 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 inmate considered and must continue to act consistently with
its obligation to preserve public safety.\38\
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\37\ Memorandum for the Director, BOP, from the Attorney
General, Re: Increasing Use of Home Confinement at Institutions Most
Affected by COVID-19, at 2 (Apr. 3, 2020), <a href="https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf">https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf</a>.
\38\ See id. at 3.
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The Bureau subsequently issued internal guidance that, in addition
to adopting the criteria in the Attorney General's memoranda,
prioritized for home confinement inmates who had served 50 percent or
more of their sentence or those who had 18 months or less remaining on
their sentence and had served more than 25 percent of that
sentence.\39\ That guidance also instructed that pregnant inmates
should be considered for placement in a community program, to include
home confinement.\40\ The BOP later clarified that inmates with low or
minimum PATTERN scores qualify equally for home confinement, and that
the factors assessed to ensure inmates are suitable for home
confinement include verifying that an inmate's current or a prior
offense was not violent, not a sex offense, and not terrorism
related.\41\ 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 the
CDC.\42\
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\39\ See, e.g., Memorandum for Chief Executive Officers, from
Andre Matevousian et al., BOP, Re: Home Confinement, at 2 (Nov. 16,
2020), <a href="https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf">https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf</a>.
\40\ Id.
\41\ See id.
\42\ See id. at 3.
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The Department believes that allowing the Bureau to continue using
internally developed criteria to evaluate inmates' requests for home
confinement is consistent with the CARES Act and the Attorney General's
guidance, and that such criteria have already led to a marked increase
in the number of inmates placed in CARES Act home confinement. Since
March 2020, following the Attorney General's directive, the Bureau has
significantly increased the number of inmates placed in home
confinement under the CARES Act and other preexisting authorities.
Accordingly, the Department declines to limit the discretion afforded
to the Director to implement certain criteria that, in the Director's
judgment, are necessary to the proper allocation of Bureau resources.
[[Page 19835]]
(2) Clarifying That Sentence Length Will Not Be Used as a Criterion for
Return To Secure Custody
Ten commentors urged the Department not to allow the Bureau to
consider the length of time remaining on an inmate's sentence as an
independent criterion as part of any set of objective factors used to
determine whether an inmate may remain in home confinement. Commentors
who raised this concern do not think the Director's discretion should
extend to allowing the length of time remaining on an inmate's sentence
to be an independent criterion for return-to-custody consideration. As
one commentor wrote, language should be included to clarify ``that no
one should be returned to prison solely based on the amount of time
they have left'' on their sentence. In support of this proposed
revision, the same commentor cited to a sentence in the proposed rule
that reads in part that ``the widespread return of prisoners to secure
custody without a disciplinary reason would be unprecedented.'' The
comment continued by noting the seemingly conflicting language in the
Bureau's former General Counsel's December 10, 2021, memorandum, in
which he noted that the Bureau's criteria for determining which inmates
should return to secure custody ``will likely include . . . the length
of time remaining on the sentence.'' \43\ The comment also highlighted
these sentences from that memorandum: ``Sentence length is likely to be
a significant factor, as the more time that remains will provide the
agency a more meaningful opportunity to provide programming and
services to the offender in a secure facility. . . . It is likely that
inmates that have longer terms remaining would be returned to secure
custody, while those with shorter terms left who are doing well in
their current placement would be allowed to remain there, subject to
the supervisory conditions described above.'' \44\ The commentor's
concern is that the representations in the December 10, 2021,
memorandum make it reasonably clear that the Bureau would consider the
length of time remaining on a sentence as one of several criteria
developed to determine which inmates will return to secure custody.
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\43\ See Memorandum for Christopher H. Schroeder, Assistant
Attorney General, OLC, from Ken Hyle, General Counsel, BOP, Re:
Views Regarding OLC Opinion, ``Home Confinement of Federal Prisoners
After the COVID-19 Emergency'' dated January 15, 2021, at 5-6 (Dec.
10, 2021), <a href="https://www.aclu.org/sites/default/files/field_document/bop_cares_memo_12.10.21.pdf">https://www.aclu.org/sites/default/files/field_document/bop_cares_memo_12.10.21.pdf</a>.
\44\ Id. at 6.
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Department Response: The Department understands this concern,
which, at its core, laments the lack of any definitive assurance upon
which individuals in CARES Act home confinement can currently rely to
know whether the length of time remaining on their sentences will
prompt their return to secure custody. The Department reiterates that,
under typical circumstances, inmates who have made the transition to
home confinement would not be returned to a secure facility absent a
disciplinary reason. This is because the typical purpose of home
confinement is to allow inmates to readjust to life in the community.
Removal from the community of those already making progress in home
confinement would frustrate this goal, and the widespread return of
prisoners to secure custody without a disciplinary reason would be
unprecedented and out of step with the reentry-specific goals of home
confinement, as mentioned throughout this final rule.
While the Department understands these commentors' concern with
respect to this issue, the Department declines to include in the final
rule language withdrawing discretion from the Director to consider the
length of time remaining on an inmate's sentence as part of a set of
criteria to determine which inmates may return to secure custody after
the end of the covered emergency period. Allowing the Bureau discretion
to determine whether inmates who have been successfully serving their
sentences in the community should remain in home confinement will allow
the Bureau to ground those decisions upon case-by-case assessments
consistent with penological, rehabilitative, public health, and public
safety goals.
However, the Department re-emphasizes that following the issuance
of this final rule, the Bureau will develop, in consultation with the
Department, guidance to explain criteria it will use to make
individualized determinations as to whether any inmate placed in home
confinement under the CARES Act should be returned to secure custody.
The Department and the Bureau commit to working together as
expeditiously as practicable after issuance of this final rule to
develop these criteria.
(3) Establishing Clear Objective Criteria Bureau-Wide so Inmates in
Home Confinement are on Notice of What Potential Rule Violations Would
Prompt a Return To Secure Custody
Fourteen commentors expressed concern that the rule does not
contain objective criteria for what constitutes a violation that would
return an inmate to secure custody, and four commentors specifically
expressed that the Director should not be granted the discretion to
develop criteria to be used to determine which individuals may be
returned to secure custody. These four commentors ask that the
objective criteria be published in this final rule or, alternatively,
developed as part of a separate notice-and-comment rulemaking.
The concerns about a lack of objective criteria in the rule are
rooted in these commentors' belief that the Bureau will abuse the
discretion given by the final rule and, as a result, will develop a set
of criteria they worry will run counter to the goals and intent
expressed in this rule. These commentors also argued that the
individuals in CARES Act home confinement should know sooner rather
than later whether they may be one of those subject to being returned
to secure custody. Commentors urged the Department to adopt in this
final rule a presumption that individuals placed in CARES Act home
confinement should remain there absent a showing they have engaged in a
significant violation of their conditions of release. Another commentor
stated that language should be included limiting the Director's
discretion to return an inmate to secure custody only ``for a serious
violation of their terms of release'' or ``for new crimes'' committed
while in home confinement. The concern with the discretion given to the
Director is that it allows the Director ``to return individuals to
prison for ill-defined and vague reasons.'' This lack of boundaries,
the commentors continued, is a ``potential loophole for arbitrary and
capricious decision-making.''
These commentors go on to say that the Bureau ``should issue a new
proposed rule--subject to notice and comment rulemaking--that clearly
enumerates the conduct that would warrant return to a correctional
facility. It should also make clear that the enumerated conduct is
limited to only the most serious and verified violations.'' They also
urged the Department to ``establish clear criteria and procedures for
returning an individual from home confinement to a correctional
facility.'' Specifically, ``[a]ny return to a correctional facility
should be triggered only by a serious violation of the conditions of
home confinement, determined on the basis of articulated factors, and
consistent with constitutional due process.'' The commentors' concerns
involve primarily what they describe as ``technical missteps'' that do
not threaten community safety and should not be
[[Page 19836]]
grounds for a revocation. These commentors end with: ``A clear,
publicly available rule that establishes how BOP will exercise any
discretion, that is available to the public and individuals in BOP
custody, and that is not subject to easy change outside the public
view, will assist in providing that stability. Indeed, engaging in
rulemaking here is legally mandated if BOP intends to treat this
guidance as internally binding on BOP officials. For all relevant
purposes, binding guidance constitutes a rule and should be subject to
notice-and-comment procedures. See generally Appalachian Power Co. v.
Environmental Protection Agency, 208 F.3d 1015 (D.C. Cir. 2000).''
Another commentor, concerned with ``vague and amorphous standards
for revoking supervision,'' argued for objective and clearly defined
criteria for reincarceration, along with a ``graduated sanctions matrix
for technical violations . . . that provide[s] for interim sanctions
for low-level or technical violations of supervision conditions.'' This
commentor continued: ``These matrices provide supervision officers
tools to address minimal non-compliance without resorting to total
revocation, which is costly and administratively burdensome. A similar
matrix should be developed as part of the Bureau's new guidance on
revocation of home confinement.''
Department Response: The Department remains sensitive to
commentors' desire for a clear set of criteria the Bureau will use to
determine whether an inmate will be returned to secure custody.
However, the Department declines to use this final rule to limit the
discretion afforded to the Director to develop a set of objective
criteria, in consultation with the Department. The Department also
disagrees that the creation of these objective criteria must be done
through a separate notice-and-comment rulemaking. Instead, the
Department believes the Bureau's future development of policy and its
issuance of advisory memoranda can provide the clarity sought in these
comments.
Allowing the Bureau discretion to develop these criteria will leave
the Bureau with one of its most important tools--the ability to
effectively manage bedspace based on the needs of the offender,
security requirements, and agency resources. Congress has explicitly
provided the Bureau responsibility for maintaining custody of Federal
inmates \45\ and discretion to designate the place of those inmates'
imprisonment.\46\ Courts have recognized the Bureau's authority to
administer inmates' sentences,\47\ supporting this management
principle. The Bureau's ability to control populations in Bureau-
operated institutions as well as, where appropriate, in the community,
allows the Bureau flexibility to respond to circumstances as varied as
increased prosecutions or responses to local or national emergencies or
natural disasters. 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.
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\45\ 18 U.S.C. 3621(a) (``A person who has been sentenced to a
term of imprisonment . . . shall be committed to the custody of the
Bureau of Prisons until the expiration of the term imposed . . .
.'').
\46\ See 18 U.S.C. 3621(b) (providing that ``[t]he Bureau of
Prisons shall designate the place of the prisoner's imprisonment,''
taking into account factors such as facility resources; the offense
committed; the inmate's history and characteristics; recommendations
of the sentencing court; and any pertinent policy of the United
States Sentencing Commission). Section 3621(b) also authorizes the
Bureau to direct the transfer of a prisoner at any time, subject to
the same individualized assessment. See id.
\47\ See, e.g., United States v. Wilson, 503 U.S. 329, 335
(1992); Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir.
2016).
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The Department emphasizes that, under typical circumstances,
inmates who have made the transition to home confinement would not be
returned to a secure facility absent a disciplinary reason, because the
typical purpose of home confinement is to allow inmates to readjust to
life in the community. Removal from the community would therefore
frustrate this goal. And the widespread return of prisoners to secure
custody without a disciplinary reason would be unprecedented. Moreover,
allowing the Bureau discretion to determine whether inmates who have
been successfully serving their sentences in the community should
remain in home confinement will allow the Bureau to ground those
decisions upon case-by-case assessments consistent with penological,
rehabilitative, public health, and public safety goals.\48\
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\48\ Such individualized assessments are consistent with
direction the Bureau has received from Congress in other contexts.
For example, Congress has made clear that the Bureau must base its
determination of an inmate's place of imprisonment on an
individualized assessment that takes into account factors such as
the inmate's history and characteristics. See 18 U.S.C. 3621(b).
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Additionally, the percentage of inmates placed in home confinement
under the CARES Act that have had to be returned to secure custody for
any violation of the rules of home confinement is very low; the number
of inmates who were returned as a result of new criminal activity is a
fraction of that. Instead, the vast majority of inmates in CARES Act
home confinement have complied with the terms of the program and have
been successfully serving their sentences in the community.
Accordingly, the Department does not believe the statistically low
numbers of inmates returned to custody merit inclusion of criteria in
this final rule or in a separate notice-and-comment rulemaking. The
Department and the Bureau remain committed to considering multiple
factors when developing common criteria to govern these case-by-case
assessments, thereby promoting operational efficiency. In furtherance
of that commitment, the Department and Bureau intend to make the
agreed-upon criteria publicly available once developed.
(4) Creating An Administrative Procedure by Which Inmates Accused of
Violations and Threatened With a Return To Secure Custody Can Avail
Themselves of Due Process Protections and Challenge Their Alleged
Violations
Fourteen commentors expressed support for the creation of an
administrative process by which inmates accused of violating the terms
of their home confinement may challenge those violations prior to being
returned to secure custody. Specifically, these commentors urged the
Department to ensure individuals receive due process, including the
opportunity to contest the allegations at a hearing before a neutral
decision maker, with the assistance of counsel and the ability to
confront witnesses and present evidence. They also indicated their
belief that an inmate's placement in CARES Act home confinement creates
a liberty interest in remaining on that status, and the threatened
revocation of such an interest must be preceded by a process similar to
that used in parole or probation revocations. Some of the commentors
expressed concern that the Bureau did not permit an inmate's counsel to
participate in the process of home confinement revocation, going on to
argue that the Bureau ``should establish rules permitting retained
counsel to participate in all stages of the revocation process and
provide for the appointment of counsel for indigent people facing
return to a correctional facility who do not have attorneys.''
One commentor offered the following regarding administrative or
judicial review: ``Confinees should be given the
[[Page 19837]]
right to administrative or judicial review of a decision to
reincarcerate. Such review would be unlikely to create a substantial
administrative burden, as recent experience suggests--the Bureau, for
example, acknowledged in the proposed rule that `violations of the
conditions of home confinement requiring return have been rare during
the pandemic emergency . . . and very few inmates placed in home
confinement under the CARES Act have committed new crimes.' 87 FR at
36,788. This experience suggests that few if any confinees will be
subject to reincarceration in future emergencies.''
Department Response: As an initial matter, the Department notes
inmates who violate the terms of home confinement, including CARES Act
home confinement, are not necessarily returned to secure custody. BOP's
progressive discipline for home confinement violations mitigates an
all-or-nothing approach, allowing BOP to only impose restrictions
commensurate with the circumstances of the violation. Violations are
examined based on severity and alongside any prior violations to
determine how the terms of home confinement should be adjusted.
Progressive discipline may begin with increased controls and checks,
while allowing the inmate to remain in their home. For moderate
violations, the inmate may be placed in a residential reentry center.
Only serious or chronic violations will necessarily result in return to
secure custody.
The Department further notes that the Bureau does have an
established process by which those in CARES Act home confinement may
contest the violation that prompted the decision to return the inmate
to secure custody. It is called the Administrative Remedy Program.
Whether the inmate is appealing increasingly strict conditions of
confinement or a full return to secure custody, the Administrative
Remedy Program provides a structured avenue of review and relief.
The Department also notes that Federal regulations and Bureau
policy regarding the Administrative Remedy Program have always provided
for the filing of a grievance and appeal by Bureau inmates in community
custody.\49\ The regulation, which refers to Community Corrections
Centers (now known as Residential Reentry Centers), includes inmates in
home confinement. Under the regulation, the ``Community Corrections
Manager'' (the same position as the current position of Residential
Reentry Manager (RRM)) is responsible for the implementation and
operation of the Administrative Remedy Program at the Community
Corrections Center (CCC).\50\ Like any other inmates monitored in
community custody, inmates in home confinement need not first attempt
informal resolution before filing a grievance.\51\ The timelines
outlined in the Administrative Remedy Program apply to home confinement
inmates, who are also entitled to file an appeal of an adverse
disciplinary action.\52\ The RRM for the region in which the inmate is
located must respond to the grievance or appeal within the timeframe
outlined in the regulation.\53\
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\49\ See 28 CFR 542.10(b) (noting the ``Program applies to all
inmates in institutions operated by the Bureau of Prisons, [and] to
inmates designated to contract Community Corrections Centers (CCCs)
under Bureau of Prisons responsibility'').
\50\ 28 CFR 542.11(a).
\51\ 28 CFR 542.13(b).
\52\ 28 CFR 542.14(a).
\53\ 28 CFR 542.18.
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The Department has maintained that placement in CARES Act home
confinement does not create a constitutionally protected liberty
interest.\54\ We therefore decline to develop a separate administrative
process by which inmates in CARES Act home confinement may challenge
revocations, either by inclusion in this final rule or through a
separate notice-and-comment rulemaking.
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\54\ See, e.g., Cardoza v. Pullen, 3:22-CV-00591 (SVN), 2022 WL
3212408 (D. Conn. Aug. 9, 2022); Frank v. Ramos, No. 5:21-HC-02174-
M, 2022 WL 1377950 (E.D.N.C. May 2, 2022); see also Hatch v. Lappin,
660 F. Supp. 2d. 104 (D. Mass. 2009); cf. Touizer v. Att'y Gen., No.
21-10761, 2021 WL 3829618 (11th Cir. Aug. 21, 2021).
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D. Comment in Opposition
The Department received only one comment in opposition to the
proposed rule. The commentor concluded that the initial (January 2021)
OLC opinion, which declared the Bureau would have been required to
return all CARES Act home confinement inmates to secure custody at the
expiration of the covered emergency period, was correct and represented
the only tenable interpretation of the CARES Act. The commentor
contended that, with the issuance of the second OLC opinion overruling
the first one, the Department engaged in a results-oriented analysis
employed in ignorance of the law and to appease criminal justice
activists. The commentor noted that the proposal contemplated by the
rule would lead to an absurd result because the Bureau would have 30
days after the end of the covered emergency period to move as many
inmates as it wanted from secure custody to home confinement for the
remainder of their sentences.
The commentor also said that the proposed rule ignores the changed
circumstances surrounding the pandemic and the ``materially affect the
functioning'' requirement, which the commentor claimed is arguably no
longer met by current circumstances. The commentor cited four
considerations present now that were not present at the beginning of
the pandemic: (1) the wide availability of both vaccines and tests; (2)
the fact that studies focused on ``crowding'' in prisons during COVID-
19 were conducted prior to the wide availability of vaccines to
inmates; (3) the ability of inmates to intentionally refuse to receive
the vaccine in order to make themselves more vulnerable to infection;
and (4) the proposed rule's disregard for the ``materially affect''
phrase by relying on speculation about new variants that could exist or
spread in the future.
Department Response: Initially, for the reasons articulated in
Sections II.C. and II.D. of the preamble to the proposed rule, the
Department disagrees that it should revert to the reasoning of the
January 2021 OLC opinion. Instead, the Department reaffirms its
reliance on the analysis contained in the December 2021 OLC opinion.
The Department also disagrees with the commentator's contention that
this rule would lead to the ``absurd result[ ]'' of BOP, during the 30
days after the national emergency ends, ``release[ing] as many inmates
as possible to home confinement and hav[ing] them stay there until the
end of their sentences,'' which would be ``a scenario . . . not
plausibly contained within the temporary authority that Congress
granted to the Department . . . .'' This concern is unwarranted. The
BOP does not intend, nor does the Department intend to advise BOP, to
move eligible inmates en masse to CARES Act home confinement in the 30
days following the ending of the national emergency.
Addressing the commentator's argument that the rule ignores four
changed circumstances: First, the Department does not dispute the
public health value of widespread testing and readily available
vaccines, but unfortunately, neither testing nor vaccination can
guarantee that inmates, especially medically vulnerable ones, will not
contract any of a number of variants of COVID-19 while incarcerated.
While the risk of severe illness or death is lower for those who are
fully vaccinated, risk remains, and there are also some inmates whose
medical history and vaccination status make them more susceptible to
infection or to experiencing severe symptoms. Moreover, the BOP does
not require vaccination of inmates. The
[[Page 19838]]
commentator also suggests mandatory testing of visitors to BOP
institutions. This raises several concerns: the issues of what tests
BOP would accept, and from what medical service providers; the fact
that denying counsel entry for client visitation, either for refusal to
test or unacceptable proof of negative status, creates serious due
process concerns for the client, particularly in the time-sensitive
pretrial context; to the extent that the commentator is suggesting that
BOP itself administer tests to visitors, diverting critical medical
staff devoted to inmate health care to administer and interpret these
tests, and finally, the lack of space outside the secure perimeter to
convert into makeshift testing and waiting areas at some institutions.
Second, studies published early in the pandemic about overcrowding
and the spread of the virus within correctional institutions are no
less compelling and relevant today in cautioning against recalling to
secure custody those inmates who have been placed in home
confinement.\55\ Even with the availability of testing and vaccines,
the Department maintains that a multi-faceted approach to mitigating
the spread of COVID-19 within the Federal prison population is the most
effective way to protect vulnerable inmates.
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\55\ While a vaccinated inmate population is ``an extremely
effective tool for the prevention of COVID-19 in prisons[,]'' as of
early last year, there have been ``few studies evaluating COVID-19
in prisons and vaccination.'' Massimiliano Esposito et al., The Risk
of COVID-19 Infection in Prisons and Prevention Strategies: A
Systematic Review and a New Strategic Protocol of Prevention, 10
Healthcare, at 4, 10 (2022), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8872582/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8872582/</a>.
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Third, regarding the Department's justification for the rule based
in part on inmates' right to refuse vaccination, the Department
reiterates that inmates retain certain rights during incarceration,
including a limited right to accept or reject medical treatment.
Granting the BOP Director discretion to keep inmates in CARES Act home
confinement allows for the flexibility needed to mitigate the spread of
COVID-19.
Fourth, new variants and sub-variants have already become dominant
in the community. The short- and long-term impacts of these variants--
some of which have evolved to be increasingly effective at
circumventing immunity acquired through vaccinations and infections--
remain uncertain. Therefore, it is reasonable and prudent to prepare
for the potential impact of a new COVID-19 variant on the Federal
inmate population.
* * * * *
The Department recognizes that there are other potential costs to
inmates serving longer sentences in home confinement as a result of the
CARES Act. For example, 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 in secure custody. In addition, most sentencing courts
anticipated that offenders would be incarcerated in a secure facility,
and there may be concern that placing inmates in home confinement for
longer periods might not appropriately honor the intent of the courts,
the interests of prosecuting United States Attorney's Offices, any
impact on victims or witnesses, possible deterrence effects in the
community, or other aspects of the Department's mission. These costs
are all mitigated, however, by retaining the Director's discretion.
As the low percentage of inmates placed in CARES Act home
confinement returned to secure custody shows, the Bureau can
effectively manage public safety concerns associated with the low-risk
inmates placed in home confinement under the CARES Act for longer
periods of time. Indeed, of the nearly 5,000 inmates placed in home
confinement under the CARES Act, as of January 16, 2023, only 515 had
been returned to secure custody for any reason, and only 21 for
committing a new crime. Individuals placed in home confinement under
the CARES Act, like other inmates in home confinement, remain in the
custody of the Bureau.
Before being placed in home confinement, inmates sign agreements
that require consent to submit to home visits and drug and alcohol
testing, acknowledgement of monitoring requirements, and an affirmation
that they will not engage in criminal behavior or possess firearms.
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.\56\ CARES Act inmates who remain in home confinement after
the end of the covered emergency period would continue to be subject to
these requirements until the end of their sentences, and possibly into
a term of supervised release. Data show that these procedures have been
working to preserve public safety where inmates were placed on extended
home confinement under the CARES Act, and the Department expects that
such measures will continue to be effective after the end of the
covered emergency period.\57\ Thus, in the Department's interpretation
and discretion, the aspects of a criminal sentence that preserve public
safety can be managed in this context while also allowing individuals
to more effectively prepare for life when their criminal sentences
conclude.
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\56\ See BOP, Program Statement 7320.01, Home Confinement (Sept.
6, 1995), as updated by Change Notice (Dec. 15, 2017), <a href="https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf">https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf</a>.
\57\ Previous research has similarly shown that inmates can
maintain accountability in home confinement programs. See, e.g.,
Darren Gowen, Overview of the Federal Home Confinement Program 1988-
1996, 64 Fed. Prob. 11, 17 (2000) (finding that 89 percent of 17,000
individuals placed in home confinement between 1988 and 1996
successfully completed their terms without incident). In addition,
studies have found that efforts to decarcerate prisons in other
contexts, which were not limited to home confinement measures, did
not harm public safety. See, e.g., Jody Sundt et al., Is Downsizing
Prisons Dangerous? The Effect of California's Realignment Act on
Public Safety, 15 Criminology & Pub. Policy 315 (2016).
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III. Regulatory Certifications
A. Regulatory Flexibility Act
The Attorney General, under the Regulatory Flexibility Act (5
U.S.C. 605(b)), reviewed this 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 rule 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.
B. Executive Orders 12866 and 13563
This 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).
This 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 has assessed the costs and benefits of this rule as
required by section 1(b)(6) of Executive Order 12866 and has made a
reasoned determination that the benefits of this rule justify its
costs.
[[Page 19839]]
The economic impact of this rule is limited to a specific subset of
inmates who were placed in home confinement pursuant to the CARES Act
and are not otherwise eligible for home confinement at the end of the
covered emergency period. As of January 23, 2023, 3,434 inmates had
been placed in home confinement under the CARES Act; 2,026 of those
inmates had release dates in more than 12 months. The Department
expects these numbers will continue to fluctuate as inmates serve their
sentences and the Bureau conducts individualized assessments to make
home confinement placements under the CARES Act for the duration of the
covered emergency period.
The Bureau has realized significant cost savings by placing
eligible inmates in home confinement under the CARES Act relative to
housing those inmates in secure facilities, and it expects those cost
savings to continue for inmates who remain in home confinement under
the CARES Act following the end of the covered emergency period.
Although the Bureau has not yet published the average COIF for FY 2021,
in FY 2020 the average COIF for a Federal inmate in a Federal facility
was $120.59 per day.\58\ The average cost for an inmate in home
confinement was $55.26 per day, representing a cost savings of
approximately $65.59 per day, per inmate, or approximately $23,940.35
per year, per inmate. Although the numbers will likely differ for FY
2021 and beyond, the Department and the Bureau expect that the 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. Because the affected inmates are currently serving their
sentences in home confinement, there will be no new costs associated
with this rulemaking.
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\58\ Annual Determination of Average Cost of Incarceration Fee
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
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As explained above, the rule will also have operational,
penological, rehabilitative, public safety, and health benefits. 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 and
rehabilitative goals and the public safety 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.
The Department has determined there is no countervailing risk to
the public safety that outweighs the benefits of this rule. The
percentage of inmates placed in home confinement under the CARES Act
that have had to be returned to secure custody for any violation of the
rules of home confinement is very low; the number of inmates who were
returned as a result of new criminal activity is a fraction of that.
The vast majority of inmates in CARES Act home confinement have
complied with the terms of the program and have been successfully
serving their sentences in the community. Thus, in 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.
Other potential costs relate to inmates serving longer sentences in
home confinement as a result of the CARES Act. 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 in secure custody. In addition, most
sentencing courts anticipated that offenders would be incarcerated in a
secure facility, and there may be concern that placing inmates in home
confinement for longer periods might not appropriately honor the intent
of the courts, the interests of prosecuting United States Attorney's
Offices,\59\ any impact on victims or witnesses, possible deterrence
effects in the community, or other aspects of the Department's mission.
These costs are all mitigated, however, by retaining the Director's
discretion to determine whether any inmate should be returned to secure
custody based on an individualized assessment. The Department and the
Bureau will consider the factors referenced in this paragraph when
developing common criteria to govern these case-by-case assessments,
thereby promoting operational efficiency.
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\59\ The Bureau, in its discretion, forwards certain home
confinement cases to the prosecuting United States Attorney's Office
for the input of prosecutors, taking any objections into account
when approving or denying those cases.
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D. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on distribution of power and responsibilities among the various levels
of government. Therefore, under Executive Order 13132, the Attorney
General determines that this regulation does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
F. Unfunded Mandates Reform Act of 1995
This 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.
Therefore, no actions are necessary under the provisions of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
G. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 804.
H. Paperwork Reduction Act of 1995
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3521.
List of Subjects in 28 CFR Part 0
Authority delegations (Government agencies), Government employees,
National defense, Organization and functions (Government agencies),
Privacy, Reporting and recordkeeping requirements, Whistleblowing.
Accordingly, by virtue of the authority vested in me as Attorney
General, including 5 U.S.C. 301, 18 U.S.C. 4001 and 28 U.S.C. 509, 510,
part 0 of title 28 of the Code of Federal Regulations is amended as
follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
0
2. In Sec. 0.96, add paragraph (u) to read as follows:
[[Page 19840]]
Sec. 0.96 Delegations.
* * * * *
(u) With respect to the authorities granted under the Coronavirus
Aid, Relief, and Economic Security (CARES) Act:
(1) During the ``covered emergency period'' as defined by the CARES
Act, when the Attorney General determines that emergency conditions
will materially affect the functioning of the Bureau of Prisons
(Bureau), lengthening the maximum amount of time for which the Director
is authorized to place a prisoner in home confinement under 18 U.S.C.
3624(c)(2), as the Director determines appropriate.
(2) After the expiration of the ``covered emergency period'' as
defined by the CARES Act, permitting any prisoner placed in home
confinement under the CARES Act who is not yet otherwise eligible for
home confinement under separate statutory authority to remain in home
confinement under the CARES Act for the remainder of the prisoner's
sentence, as the Director determines appropriate, provided the prisoner
is compliant with all conditions of supervision. In the event a
prisoner violates the conditions of supervision, Bureau staff may
return the prisoner to secure custody, or may utilize progressive
discipline as outlined in the Residential Reentry Center (RRC)
contract, which may include possible placement in an RRC or contract
facility in lieu of direct return to secure custody.
(3) This paragraph (u) concerns only inmates placed in home
confinement under the CARES Act. It has no effect on any other inmate,
including those placed in home confinement under separate statutory
authorities.
Dated: March 30, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-07063 Filed 4-3-23; 8:45 am]
BILLING CODE 4410-05-P
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</html>Indexed from Federal Register on April 4, 2023.
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