The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined “US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once ‘Pandemic Is Declared Over’.” Here are excerpts:
It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country. As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered …. 126 have died. Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered….
On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond. The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement … that could include a return to prison….
[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] … “the BOP’s program [home confinement under the Barr memo], it’s a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over.“…
While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison … or they could be asked to be immunized in order to return …. or the inmate could refuse immunization …. or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal. If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.
I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action. Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years. Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.”
Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over. Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off. But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are “lucky” enough to return to “normal” in the federal prison section of incarceration nation.