What is the Home Confinement Issue
under the Federal CARES Act?
An Explanation by FAMM President Kevin Ring
March 2020
In March 2020, Congress passed the CARES Act to expand the Federal Bureau of Prison's discretion to place people on home confinement in order to combat the spread of Covid. This was smart. Typically, the BOP is only authorized to send people to home confinement for a bit of their sentence – six months or 10%, whichever is less.
The CARES Act authorized the Department of Justice to give more time on home confinement so long as the Attorney General found that Covid was “materially affecting” the Bureau's functioning. Attorney General Barr did that right away, and the Department of Justice established strict eligibility criteria – to get extended home confinement, a person had to have served at least 50% of their sentence, have no violence in their record (including prior offenses), and no disciplinary infractions (disciplinary infractions can include something as simple as not having a shirt tucked in properly) in past 12 months. Sexual offenders were automatically excluded. They also had to have Covid risk factors as established by the Centers for Disease Control, and have a “minimum” risk assessment score on the PATTERN risk assessment tool. Lots of people, including FAMM, complained that the criteria were too strict. After all, people’s lives were at risk – why sacrifice anyone just because they stole an egg from chow hall 10 months ago? But those are the criteria they went with and began sending people home. Of note: The BOP didn’t tell any of them they would have to come back to prison. In fact, most report that when they asked, they were specifically told they would not have to, unless they violated terms of their release.
December 2020
By December 2020, a dozen or so people on home confinement had reached out to us at FAMM and said, “we are grateful to be home, but we have x years left on our sentence. Are we going to have to be on an ankle monitor the whole time?” Fair question. Why keep them like that if they behave? While the ankle monitor is a useful tool for short term releases, the monitors cannot be submerged in water, which means people cannot take baths or swim (showers are okay). Some people have easily irritated skin, and some of the monitors, particularly the GPS enabled ones, are quite heavy and can cause muscle and joint problems with prolonged use.
Joe Biden won the election in November. FAMM met with the transition team on December 2nd, and raised questions about the home confinement issue. We asked the new team to expand the criteria in order to enable more releases of people who pose no threat to the community and were at serious risk due to their incarceration. We also asked the team to figure out a way to get people currently on home confinement off surveillance if they’ve followed the rules. We suggested compassionate release and clemency.
January 2021
On January 15th, then out-going President Trump’s Office of Legal Counsel dropped a bomb. It issued a legal opinion, in response to an inquiry from the BOP, which stated that the BOP had to bring everyone currently on home confinement back to incarceration 30 days after the Attorney General declared the Bureau's operations were no longer materially affected by Covid.
Families started calling us panicked. We at FAMM had talked to the Trump White House last summer, and they assured us that they had no intention of bringing people back – a position those officials maintain today – but the OLC’s interpretation would force the BOP to do just that.
February 2021
In mid-February, we met with the new appointees at DOJ and urged them to rescind the OLC memo. We also met with various officials in the new White House. Everyone understood the problem and said they would look into how best to fix it. However, here we are five months later, and we are still waiting. The New York Times story confirmed many of our worst fears. Officials from the Department of Justice are privately pushing back on the New York Times report, but no one is contesting it on the record. Why not?
In January and February, the press was not interested in the story because many deemed it too speculative. Surely the new admin would fix this. I wondered if maybe I was overreacting. But Holly Harris, President and Executive Director of Justice Action Network, said "nope, we need to raise hell." So we wrote about it.
The press said no one would be interested because the pandemic wasn’t close to over. This is the same thing the Bureau of Prisons and Department of Justice say today – and it completely ignores how urgent it is to the people on home confinement, who wake up every day worried about where they will be in a few months.
March-May 2021
Every day, more and more people were reaching out to us, telling us their stories and how scared they were at the prospect of having to go back, despite following the rules, having a job, etc. We did a town hall with a handful of them in March.
Finally, in April, Sarah Lynch with Reuters wrote a great story, featuring some of the compelling folks who had reached out. We tried to amp up the threat to match the intensity we were getting from the families reaching out to us. In May, the press began covering the story more, which was great. And sharing the stories of those affected.
Perhaps the most compelling story of all was Gwen Levi’s. Levi, a 76-year-old grandmother who had already served 16 years, was being threatened with a return to prison. In May, NBC News talked to her, and her story has now really demonstrated to the public the meat and bones of the issue.
Then, the BOP stupidly tried to send her back over a petty, technical violation that was really a result of miscommunication and a technology failure. She went to a computer class for which she thought she had authorization, as she had been there before. Her phone was off to better pay attention in class. The class was held in a building that caused the ankle monitor to scramble, resulting in the halfway house supervising her being unable to verify her whereabouts for a few hours until she was home. Despite there being ample evidence as to what happened, the BOP refused to budge, sent her back to prison, and even threatened to take her good time. Gwen's story went viral, and luckily her judge saw the situation for what it was and granted her compassionate release. Now she, and dozens of groups from across the ideological spectrum, are working together to prevent people on home confinement from going back to prison. Members of Congress have weighed in, as well.
June 2021 - the present
The options at the Biden administration's disposal have not changed since we met with their transition team in early February, or since we last spelled them out in a June 7th letter to Attorney General Merrick Garland.
The Biden administration might very well take the position that sending thousands of people back to prison would be better than using its authority to keep them home. But if they do, they should pay a price. And every day they wait to act, they should pay a higher one.
It is important to show the amount of support out there to do the decent, common sense, responsible thing and keep these people at home with their families and in their communities where they belong. They are working, paying taxes, rebuilding family ties and lives. To remand them to prison would not only be cruel and unnecessary, but makes no sense from a public safety perspective. Please show your support by signing and circulating FAMM's petition to #KeepThemHome.
Heavily adapted (with permission) from Kevin's thread on Twitter.
