DOJ Final Rule to Allow Some Inmates To Remain Home Following COVID Emergency Lifts

Since March 2020, under the Coronavirus Aid, Relief and Economic Security (CARES) Act[1], the Federal Bureau of Prisons has released more than 12,000 inmates, a majority of which who have since completed their sentences. Congress authorized the Department of Justice to declare an emergency under the COVID-19 pandemic as a means to expand the qualifications for home confinement for a pool of low-level, non-violent federal inmates. This was done as an attempt to slow the spread of the coronavirus throughout the federal prison system. However, as President Biden announced his termination of the COVID national emergency[2], the fate of these inmates was unclear. Without an official ruling expanding the authority of the Director of the Bureau of Prisons to allow these released inmates to remain home, the Bureau would have no choice but to return these individuals to prison as the authorization under the CARES Act would be temporary.

Luckily, on April 4, these released inmates received positive news regarding their fate. The Department of Justice issued a final rule[3] granting the authority to the Director of the Bureau of Prisons to allow inmates released on home confinement to remain in home confinement even after the termination of the COVID national emergency. Even with this ruling, however, this does not mean released inmates will not be returned to prison if they do not comply with the conditions of their release. The Bureau of Prisons has the authority to impose “proportional and escalating sanctions”, including imprisonment, for inmates who conduct infractions. However, any concerns over released inmates violating conditions of release and common law are generally unfounded. Since the 2020 authorization went into effect, only a fraction of the one percent of inmates released was reincarcerated due to a new criminal offense. Additionally, this final ruling grants the Bureau the authority to transfer individuals into Residential Reentry Centers when necessary, including instances when home residence is no longer viable or in the event of either minor accountability issues or non-significant disciplinary issues.[4]

This final ruling follows a statement issued by the Attorney General directing the Department of Justice to engage in a rulemaking process to prevent the unnecessary return of individuals placed in home confinement under the CARES Act to prison. Prior to the publication of the proposed rule, the Office of Legal Counsel also issued an opinion interpreting the CARES Act to give the Bureau of Prisons discretion to authorize individuals on home confinement to remain in home confinement after the COVID-19 national emergency has been terminated. The Office of Legal Counsel determined that the only thing the CARE Act changes in the Bureau of Prisons’s home-confinement authority is to “lengthen” the duration for which prisoners can be placed in home confinement. They concluded that “‘lengthen’ referred to a discrete act: once something is permissibly lengthened, no further or ongoing action is typically required. Here, once BOP has determined to lengthen the time remaining in a prisoner’s sentence and assigned that prisoner to home confinement, the permissible time period to be in home confinement has been extended and no further action under the CARES Act is needed or contemplated.”[5] Therefore, based on the ruling of the Office of Legal Counsel and, subsequently, the final ruling released by the Department of Justice, once a home confinement provision has been extended, this is final.