In this post from this past October, I wondered “Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?”. That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time. Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled “”Home Confinement of Federal Prisoners After the COVID-19 Emergency.” Here is how it gets started:
The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2). In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period. See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”). The question is what happens to these prisoners once the pandemic emergency ends. At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement. Other inmates, however, may have a substantial time to go before becoming eligible. Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.
We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. See id. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).
I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus “would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement.” This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world. Nevertheless, as FAMM’s Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.
Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners. And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic. But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.
But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters. Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement. And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement. Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: “One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now.”