[Federal Register Volume 87, Number 118 (Tuesday, June 21, 2022)]
[Proposed Rules]
[Pages 36787-36796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13217]
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DEPARTMENT OF JUSTICE
28 CFR Part 0
[BOP Docket No. 1179; AG Order No. 5439-2022]
RIN 1120-AB79
Home Confinement Under the Coronavirus Aid, Relief, and Economic
Security (CARES) Act
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed 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. This proposed rule affirms that the Director has
the authority 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: Comments are due on or before July 21, 2022.
ADDRESSES: Please submit electronic comments through the
regulations.gov website. In the alternative, written comments may be
mailed to the Rules Unit, Office of General Counsel, Bureau of Prisons,
320 First Street NW, Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Crista Colvin, Office of General
Counsel, Bureau of Prisons, phone (202) 353-4885.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at
www.regulations.gov. If you want to submit personal identifying
information (such as your name, address, etc.) as part of your comment,
but do not want it to be posted online, you must include the phrase
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your
comment. You must also locate all the personal identifying information
you do not want posted online in the first paragraph of your comment
and identify what information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted at
www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file, nor
will it be posted online. If you want to inspect the agency's public
docket file in person by appointment, please see the FOR FURTHER
INFORMATION CONTACT paragraph.
[[Page 36788]]
II. Discussion
A. Overview
The CARES Act authorizes the Director of the Bureau of Prisons to
lengthen the amount of time a prisoner may be placed in home
confinement beyond the statutory maximum normally allowed under 18
U.S.C. 3624(c)(2) as the Director deems appropriate.\1\ That authority
under the CARES Act exists during the period for which there is a
declaration of national emergency with respect to the COVID-19 pandemic
and for 30 days after the termination of that declaration, provided
that the Attorney General has made a finding that the emergency
conditions materially affect the functioning of the Bureau of Prisons.
The President declared the COVID-19 outbreak a national emergency
beginning March 1, 2020; that national emergency was extended on
February 24, 2021, and again on February 18, 2022, and is still in
effect as of June 15, 2022.\2\ The Attorney General made the relevant
finding with respect to the Bureau on April 3, 2020. See Memorandum for
the BOP Director from the Attorney General, Re: Increasing Use of Home
Confinement at Institutions Most Affected by COVID-19, at 1 (Apr. 3,
2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf (``April 3 Memo'').
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\1\ See Coronavirus Aid, Relief, and Economic Security Act,
Public Law 116-136, sec. 12003(b)(2), 134 Stat. 281, 516 (2020)
(``CARES Act'').
\2\ Proclamation 9994, Declaring a National Emergency Concerning
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar.
18, 2020); see also Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR
11599 (Feb. 26, 2021); Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR
10289 (Feb. 23, 2022).
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Following guidance from the Attorney General, the Director has
exercised his discretion under the CARES Act to place thousands of
inmates in home confinement during the pandemic emergency. These
actions removed vulnerable inmates from congregate settings where
COVID-19 spreads easily and quickly and also reduced crowding in BOP
correctional facilities. Inmates placed in home confinement are
considered in the custody of the Bureau and are subject to ongoing
supervision, including monitoring, drug and alcohol testing, and check-
in requirements. They are not permitted to leave their residences
except for work or other preapproved activities such as counseling.
Inmates who violate these conditions may be disciplined and returned to
secure custody. Violations of the conditions of home confinement
requiring return have been rare during the pandemic emergency, however,
and very few inmates placed in home confinement under the CARES Act
have committed new crimes.
Although the CARES Act plainly states that the Director's authority
to lengthen the maximum period of home confinement exists during the
covered emergency period, the Act is silent about what happens to an
inmate who was placed in home confinement under this authority, but who
has more than the lesser of ten percent of her sentence or six months
remaining in her term of imprisonment after the covered emergency
period expires. As explained in a recent opinion of the Office of Legal
Counsel (``OLC''), and supported by the interpretation of the Bureau,
the statute allows such individuals to remain in home confinement after
the covered emergency period ends, as the Director deems appropriate.
This interpretation is supported by the text, structure, and purpose of
the CARES Act and therefore is the better reading of the statute, as
more fully explained in OLC's December 21, 2021 opinion. See Discretion
to Continue the Home-Confinement Placements of Federal Prisoners After
the COVID-19 Emergency, 45 Op. O.L.C. __(Dec. 21, 2021), available at
https://www.justice.gov/olc/file/1457926/download (``Home-Confinement
Placements''). This interpretation, which the Department adopts in
promulgating this rulemaking, also aligns with the Bureau's consistent
position that the more appropriate reading of the statute is to permit
the Bureau to conduct individualized assessments--as it does in making
prisoner placements in other contexts--to determine whether any inmate
should be returned to secure custody after the COVID-19 emergency ends.
The Department's interpretation of the statute is also consistent
with Congressional support for increasing the use of home confinement
as part of reentry programming, as the Second Chance Act of 2007 and
the First Step Act of 2018 demonstrate. In addition, implementation of
this interpretation is operationally sound and provides flexibility in
managing BOP-operated institutions as well as cost savings for the
Bureau. Indeed, there is evidence that the Bureau can appropriately
manage public safety concerns related to inmates in home confinement,
and there are penological, rehabilitative, and societal benefits of
allowing inmates to effectively prepare for life after the conclusion
of their criminal sentences. Finally, as a practical matter, this
interpretation permits the Bureau to consider whether returning CARES
Act inmates to secure custody would increase crowding in BOP facilities
and risk new, potentially serious COVID-19 outbreaks in prisons even
after the broader national emergency has passed.
For all of these reasons, the Department proposes to provide the
Director with express authority and discretion to allow prisoners who
have been placed in home confinement under the CARES Act to remain in
home confinement after the conclusion of the covered emergency period.
B. Background
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.\3\ COVID-19 is caused by an extremely
contagious virus known as SARS-CoV-2 that has spread quickly around the
world.\4\ 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.\5\ Individuals in close contact
with an infected person--generally less than 6 feet apart--are most
likely to get infected. Although COVID-19 often presents with mild
symptoms, some people become severely ill and die.\6\ Older adults and
individuals with underlying medical conditions are at increased risk of
severe illness or death. As of April 26, 2022, over 988,000 people in
the United States have died from COVID-19.\7\
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\3\ Proclamation 9994, Declaring a National Emergency Concerning
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar.
13, 2020).
\4\ U.S. Centers for Disease Control and Prevention, Basics of
COVID-19 (updated Nov. 4, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited Apr. 26, 2022).
\5\ U.S. Centers for Disease Control and Prevention, How COVID-
19 Spreads (updated July 14, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 26, 2022).
\6\ U.S. Centers for Disease Control and Prevention, Basics of
COVID-19 (updated Nov. 4, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited Apr. 26, 2022).
\7\ U.S. Centers for Disease Control and Prevention, COVID Data
Tracker, available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Apr. 26, 2022).
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The United States Centers for Disease Control and Prevention
(``CDC'') within the Department of Health and Human Services has
recognized that the
[[Page 36789]]
COVID-19 pandemic presents unique challenges for correctional
facilities, such as those the Bureau manages.\8\ 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. In a letter to the Attorney
General and the Director dated March 23, 2020, a bipartisan group of
United States Senators expressed concern about the potential for COVID-
19 spread among, in particular, vulnerable Bureau staff and inmates,
and called upon the Bureau to use available statutory authorities to
increase its utilization of home confinement to mitigate the risk.\9\
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\8\ CDC, Considerations for Modifying COVID-19 Prevention
Measures in Correctional and Detention Facilities (June 22, 2021),
available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/correction-detention/COVID-Corrections-considerations-for-loosening-restrictions-Webinar.pdf (last visited Apr. 26, 2022).
\9\ Letter for Attorney General Barr & Director Carvajal from
Senator Richard J. Durbin et al. (Mar. 23, 2020), available at
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 (last
visited Apr. 26, 2022) (``Conditions of confinement do not afford
individuals the opportunity to take proactive steps to protect
themselves, and prisons often create the ideal environment for the
transmission of contagious disease. For these reasons, it is
important that consistent with the law and taking into account
public safety and health concerns, that the most vulnerable inmates
are released or transferred to home confinement, if possible.'').
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On March 26, 2020, the Attorney General issued a memorandum
instructing the Director to prioritize 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.\10\ The Attorney General
directed that the determination of whether to place an inmate in home
confinement should be made on an individualized basis, taking into
account the totality of the inmate's circumstances, the statutory
requirements, and the following non-exhaustive discretionary factors:
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\10\ Memorandum for the Director, Bureau of Prisons from the
Attorney General, Re: Prioritization of Home Confinement As
Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020),
available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf.
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The age and vulnerability of the inmate to COVID-19;
The security level of the facility housing the inmate,
with priority given to inmates residing in low and minimum security
facilities;
The inmate's conduct in prison;
The inmate's risk score under the Prisoner Assessment Tool
Targeting Estimated Risk and Needs (``PATTERN''); \11\
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\11\ 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., Federal Bureau of Prisons, PATTERN Risk
Assessment, https://www.bop.gov/inmates/fsa/pattern.jsp. It was
created pursuant to the First Step Act of 2018. See Pub. L. 115-391,
sec. 101(a), 132 Stat. 5194, 5196-97 (2018).
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Whether the inmate had a reentry plan that would prevent
recidivism and maximize public safety; and
The inmate's crime of conviction and the danger the inmate
would pose to the community.\12\
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\12\ By April 2021, the Bureau clarified that the criminal
history check covered both an inmate's crime of conviction and her
broader criminal history. See Memorandum for Chief Executive
Officers from Andre Matevousian et al., BOP RE: Home Confinement
(Apr. 13, 2021), available at: http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf.
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The Attorney General's memorandum explained that some offenses
would 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.\13\
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\13\ This criterion was later updated to include low and minimum
PATTERN scores. See id.
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Prior to the passage of the CARES Act, Congress had enacted three
main sources of statutory authority to allow the Bureau to place
inmates in home confinement as part of reentry programming. First, 18
U.S.C. 3624(c)(2) authorizes the Director to transfer inmates to home
confinement for the shorter of either 10 percent of the term of
imprisonment or six months. That provision also directs the Bureau to
``place prisoners with lower risk levels and lower needs on home
confinement for the maximum amount of time permitted'' ``to the extent
practicable.'' Second, Congress created a pilot program in the Second
Chance Act of 2007 (``SCA''), which it reauthorized and modified in the
First Step Act of 2018 (``FSA''), authorizing the Attorney General to
place eligible elderly and terminally ill offenders in home confinement
after they have served two-thirds of their term of imprisonment.\14\
Third, the FSA established earned time credits that eligible inmates
could accrue through participating in recidivism-reducing programs and
then apply for transfer to pre-release custody, including home
confinement, without regard for the time frames set forth in 18 U.S.C.
3624(c)(2).\15\
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\14\ See FSA, Pub. L. 115-391, sec. 603(a), 132 Stat. 5194, 5238
(2018), codified at 34 U.S.C. 60541.
\15\ See FSA sec. 101, 132 Stat. at 5210-13, codified at 18
U.S.C. 3624(g). The Bureau recently published a final rule codifying
Bureau procedures regarding time credits that govern pre-release
custody placements under section 3624(g). See FSA Time Credits, 87
FR 2705 (Jan. 19, 2022).
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The day after the Attorney General's first memorandum, on March 27,
2020, the President signed into law the CARES Act, which expanded the
authority of the Director to place inmates in home confinement in
response to the COVID-19 pandemic upon a finding by the Attorney
General. Specifically, the Act states:
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.\16\
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\16\ CARES Act sec. 12003(b)(2).
The term ``covered emergency period'' refers to the period
beginning on the date the President declared a national emergency with
respect to COVID-19 and ending 30 days after the date on which the
national emergency declaration terminates.\17\
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\17\ Id. sec. 12003(a)(2).
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On April 3, 2020, the Attorney General issued a second memorandum
for the Director, finding that emergency conditions were materially
affecting the functioning of the Bureau, and acknowledging that the
Bureau was ``experiencing significant levels of infection at several of
our facilities.'' \18\ The Attorney General instructed the Director to
use the expanded home confinement authority provided in the CARES Act
to place the most vulnerable inmates at the facilities most affected by
COVID-19 in home confinement, 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. The second 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
[[Page 36790]]
inmate considered and must continue to act consistently with its
obligation to preserve public safety.
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\18\ See April 3 Memo at 1.
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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 sentences or those who had 18 months or less remaining in
their sentences and had served more than 25 percent of that
sentence.\19\ That guidance also instructed that pregnant inmates
should be considered for placement in a community program, to include
home confinement. 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, a sex offense, or terrorism-related.\20\ 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 CDC.\21\
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\19\ See, e.g., Memorandum for Chief Executive Officers from
Andre Matevousian et al., BOP, Re: Home Confinement (Nov. 16, 2020),
available at https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf.
\20\ See Memorandum for Chief Executive Officers from Andre
Matevousian et al., BOP, Re: Home Confinement (Apr. 13, 2021),
available at https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf.
\21\ See id.
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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.
Between March 26, 2020, and January 10, 2022, the Bureau placed in home
confinement a total of 36,809 inmates.\22\ The majority of those
inmates have since completed their sentences; as of January 10, 2022,
there were 7,726 inmates in home confinement.\23\ According to the
Bureau, 4,902 of these inmates were placed in home confinement pursuant
to the CARES Act.
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\22\ See Federal Bureau of Prisons, Frequently Asked Questions
regarding potential inmate home confinement in response to the
COVID-19 pandemic, https://www.bop.gov/coronavirus/faq.jsp (last
visited Jan. 11, 2022).
\23\ See id. (last visited Jan. 11, 2022).
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When an inmate is placed in home confinement, he or she is not
considered released from the custody of the Bureau of Prisons; rather,
he or she continues serving a sentence imposed by a Federal court and
administered by the Bureau of Prisons.\24\ Although inmates in home
confinement are transferred from correctional facilities and placed in
the community, 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.\25\ 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. An inmate's failure to comply
with the conditions of home confinement results in disciplinary action,
which may include a return to secure custody or prosecution for escape.
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\24\ 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 . . .
.'').
\25\ Federal Bureau of Prisons Program Statement 7320.01, CN-2,
Home Confinement (updated Dec. 15, 2017), available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
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Management of inmates in home confinement since the beginning of
the COVID-19 pandemic, the largest community confinement population in
recent history, has been robust. According to the Bureau, as of March
4, 2022, a small percentage of inmates placed in home confinement
pursuant to the CARES Act--357 out of approximately 9,500 total
individuals--had been returned to secure custody as a result of
violations of the conditions of home confinement. Of this number, only
8 were returned for new criminal conduct (6 for drug-related conduct, 1
for smuggling non-citizens, and 1 for escape with prosecution).\26\
These data suggest that inmates placed on longer-term home confinement
under the CARES Act can be and have been successfully managed, with
only a limited number requiring return to secure custody for
disciplinary reasons. Additional observation and research will need to
be conducted to determine if this very low level of recidivism can be
maintained, or if it was affected by the unique external circumstances
caused by the global pandemic.
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\26\ The term ``escape with prosecution'' indicates that a
United States Attorney's Office has decided to prosecute an inmate
for escape under 18 U.S.C. 751. Where a United States Attorney's
Office does not prosecute, BOP imposes administrative sanctions.
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Many inmates placed in home confinement during the COVID-19
pandemic have reached the end of their term of incarceration, or will
do so within the next six months. However, according to the Bureau, as
of January 10, 2022, there were 2,826 total inmates placed in home
confinement under the CARES Act with release dates in more than 12
months. Of this total, there were 2,272 inmates with release dates in
more than 18 months; 593 inmates with release dates in 5 years or more;
and 27 inmates with release dates in 10 years or more. Many of these
individuals--all of whom have been successfully serving their sentences
in the community--may have release dates more than six months after the
expiration of the covered emergency period when it expires, and
therefore may not then be eligible for placement in home confinement
under 18 U.S.C. 3624(c)(2).
For all the reasons set forth above, the Department proposes to
promulgate this rulemaking under the Attorney General's authority, see
5 U.S.C. 301; 18 U.S.C. 4001(b)(1), to codify 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 rulemaking reflects the interpretation of the CARES Act
set forth in OLC's December 21, 2021 opinion, is consistent with recent
legislation from Congress supporting expanded use of home confinement,
and advances the best interests of inmates and the Bureau from
penological, rehabilitative, public health, and public safety
perspectives.
C. Statutory Authority
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 that the Attorney General has made a finding that emergency
conditions are materially affecting BOP'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 reading of the
CARES Act permits the Bureau to continue to make
[[Page 36791]]
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,\27\ following the end of the covered
emergency period. In its recent opinion, OLC concluded that section
12003(b)(2) does not require the Bureau to return to secure custody
inmates on CARES Act home confinement following the end of the covered
emergency period.\28\ The Department incorporates the analysis from
OLC's opinion into the preamble of this notice of proposed rulemaking.
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\27\ 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 . . .
.'').
\28\ See Home-Confinement Placements, 45 Op. O.L.C. __.
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Even if the relevant provision of the CARES Act were considered
ambiguous, however, the Department's interpretation represents a
reasonable reading that would warrant deference under Chevron, U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837
(1984).\29\
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\29\ See id. at *2, *15.
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1. Language and Structure of the CARES Act
As the OLC opinion explains, the Department's reading of the CARES
Act is grounded in the language of the relevant provision, section
12003(b)(2).\30\ That section makes a single change to the Bureau's
home confinement authority--to allow the Director to ``lengthen'' the
duration for which prisoners can be placed in home confinement relative
to the maximum time periods set forth in 18 U.S.C. 3624(c)(2).\31\ Once
the Director has lengthened a prisoner's amount of time in home
confinement under the CARES Act and placed the prisoner in home
confinement, no further action under the CARES Act is needed. After the
placement is made, the Bureau's ongoing management of the inmate is
further authorized by other Federal statutes.\32\ The CARES Act does
not mandate that any period of home confinement lengthened during the
covered emergency period must end after the expiration of that period.
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\30\ See id. at *7-9.
\31\ CARES Act sec. 12003(b)(2), 134 Stat. at 516.
\32\ See 18 U.S.C. 3621(a), (b).
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This view is reinforced by the structure of the CARES Act, and
particularly by a comparison of section 12003(b)(2) with the section of
the CARES Act that immediately follows it. That section, 12003(c)(1),
provides that:
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 shall
promulgate rules regarding the ability of inmates to conduct
visitation through video teleconferencing and telephonically, free
of charge to inmates, during the covered emergency period.\33\
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\33\ CARES Act sec. 12003(c)(1), 134 Stat. at 516.
This section differs from section 12003(b)(2) in important ways. It
uses the term ``covered emergency period'' twice, at the beginning and
the end of the section. The first use establishes that the authority of
the Bureau of Prisons to promulgate rules about video and telephonic
visitations exists during the covered emergency period. The second use
refers to the requirement that the Bureau provide such services, free
of charge, and suggests that these services were required to be
provided only during the covered emergency period. In comparison,
section 12003(b)(2) uses the term ``covered emergency period'' at the
beginning of the section only, referring to the time period during
which the Director may ``lengthen'' a term of home confinement. Section
12003(b)(2) ends with the phrase ``as the Director determines
appropriate,'' which explicitly delegates authority to the Director to
determine the appropriate amount to lengthen a period of home
confinement.
For all of these reasons, and for the additional reasons the
operative OLC opinion explains in more detail, the Department believes
that the best reading of the CARES Act is that an inmate whose period
of home confinement the Director properly lengthened during the covered
emergency period may remain in home confinement, at the Director's
discretion, including after the covered emergency period ends.
2. OLC's Previous Opinion
The Department recognizes that OLC previously advised, in January
2021, that the Bureau would be required to recall all prisoners placed
in home confinement under the CARES Act who were not otherwise eligible
for home confinement under 18 U.S.C. 3624(c)(2) after the expiration of
the covered emergency period (or if the Attorney General were to revoke
his findings).\34\ At the time of this previous opinion, the Bureau was
of the view that the consequences of its proper exercise of discretion
to lengthen the maximum period of home confinement during the covered
emergency period could continue after the expiration of the COVID-19
emergency.\35\ Even after OLC issued this initial opinion, the Bureau's
view remained that the stronger interpretation of the CARES Act did not
require all prisoners in CARES Act home confinement to be returned to
secure facilities at the end of the covered emergency period.\36\
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\34\ See Home Confinement of Federal Prisoners After the COVID-
19 Emergency, 45 Op. O.L.C. __(Jan. 15, 2021), available at https://www.justice.gov/olc/file/1355886/download.
\35\ See id. at *4.
\36\ See Home-Confinement, 45 Op. O.L.C. __, at *2, *5-7.
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The January 2021 OLC opinion based its conclusion on three
principal determinations.\37\ First, it found that because Congress
passed the CARES Act to provide various forms of temporary relief, the
Act was best read to limit its effects to the covered emergency period.
Second, it reasoned that Congress must have defined the covered
emergency period to extend 30 days beyond the end of the declared
national emergency in order to provide the Bureau with time to return
prisoners to secure custody. And third, it reasoned that the authority
``to place'' a prisoner in home confinement required the exercise of
ongoing legal authority due to the Bureau's frequent interactions with
inmates in home confinement, and that authority would not exist after
the expiration of the covered emergency period.
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\37\ See id. at *4-5.
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But upon the Attorney General's further review of the statutory
language, and in the face of a growing body of evidence demonstrating
the success of CARES Act home confinement placements, the Attorney
General requested that OLC reconsider its earlier opinion. During the
course of this reconsideration, the Bureau provided OLC with additional
materials supporting its consistent interpretation of the CARES Act.
The Bureau also explained that home confinement decisions have
historically been made on an individualized basis, which serves
penological goals. OLC reexamined the relevant text, structure,
purpose, and legislative history, along with the Bureau's additional
materials demonstrating its consistent analysis of its own authority,
and concluded the stronger interpretation of section 12003(b)(2) was
not to require the wholesale return of CARES Act inmates to secure
custody.
As noted above, see supra Part C.1, the current OLC opinion
explains the textual basis for this view, including the absence of a
statutory limit on the length of CARES Act home-confinement placements
and the contrast between CARES Act sections 12003(b)(2) and
12003(c)(1). But the current opinion also explains the rationale
underlying its
[[Page 36792]]
departure from the three principal determinations upon which the
January 2021 OLC opinion was grounded. First, OLC recognized that the
temporary nature of many programs created by the CARES Act does not
require that extended home confinement placements must end along with
the covered emergency period for two reasons.\38\ As an initial matter,
the extended home confinement program is time-limited: the Director's
authority to place inmates on extended home confinement lapses after
the expiration of the covered emergency period. In addition, the
consequences of temporary CARES Act authorities may extend past the
emergency period. For example, although the authority to provide loans
under the CARES Act's Paycheck Protection Program was limited, the
loans granted pursuant to that authority will mature over time.\39\
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\38\ See id. at *12.
\39\ See CARES Act sec. 1102, 134 Stat. at 286-97; id. at sec.
1109, 134 Stat. at 304-06.
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Second, OLC did not interpret the 30-day grace period following the
end of the national emergency as necessarily suggesting that Congress
intended the Bureau to use that time to return CARES Act inmates to
secure custody.\40\ There is no legislative history to support such a
reading, and there are other plausible explanations for the grace
period, including broader forms of administrative convenience and
benefit, such as letting BOP finish processing home-confinement
placements that were in progress and to which BOP had already devoted
resources. Moreover, the 30-day grace period also applies to section
12003(c), which provides for free video and teleconferencing for
inmates during the covered emergency period. This undercuts the
rationale that Congress included the 30-day grace period for any
particular reason other than administrative convenience.
---------------------------------------------------------------------------
\40\ See Home-Confinement Placements, 45 Op. O.L.C. __, at *11-
12.
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Finally, OLC concluded that the appropriate action to focus on in
determining the meaning of section 12003(b)(2) is the authority to
``lengthen'' the maximum period of home confinement, which is a
discrete act.\41\ The term ``to place'' derives from a different
statute--18 U.S.C. 3624(c)(2)--and even assuming the act of
``placement'' involves an ongoing process, the Bureau fully completes
the act of ``lengthening'' the time for which an individual may be
placed in home confinement under the CARES Act when an inmate is
transferred to home confinement under the Act. Once the Bureau has
appropriately lengthened an inmate's maximum period of home confinement
under the CARES Act, sections 3624(c)(2), 3621(a), and 3621(b) provide
the Bureau with ongoing authority to manage that placement.
---------------------------------------------------------------------------
\41\ See id. at *7-9.
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This proposed rule accords with OLC's revised views and codifies
the Director's authority to allow inmates placed in home confinement
under the CARES Act to remain in home confinement after the end of the
covered emergency period.
3. Chevron Deference
Even if section 12003(b)(2) of the CARES Act were found to be
ambiguous, the Department believes its view would be entitled to
deference as a reasonable reading of a statute it administers. Under
Chevron, if a court concludes that such a statute is ambiguous--a
determination typically referred to as Chevron step one--it must defer
to the agency's interpretation as long as it is ``based on a
permissible construction of the statute'' under Chevron step two.
Chevron, 467 U.S. at 843.
At the outset, the Department has authority to promulgate rules to
manage the Bureau of Prisons, and to administer CARES Act section
12003(b)(2). Congress vested the Attorney General with broad control
over the ``control and management of Federal penal and correctional
institutions'' and the ability to ``promulgate rules for the government
thereof.'' \42\ Congress also delegated general authority to the heads
of executive departments, including the Attorney General, to issue
regulations for the ``government of [the] department, the conduct of
its employees, [and] the distribution and performance of its
business.'' \43\ Congress plainly intended the Department to use its
discretion, drawing on the expertise of the Attorney General and the
Director, to administer section 12003(b)(2) of the CARES Act. First,
that section empowers the Attorney General to make a finding, during
the pandemic emergency, that the pandemic has materially affected the
functioning of the Bureau. Second, the Attorney General's finding, in
turn, triggers the Director's discretion to lengthen the maximum amount
of time an inmate may be placed in home confinement, ``as the Director
determines appropriate.'' \44\ This proposed rule, which codifies the
Department's understanding of its authority under the CARES Act in
furtherance of the management of Bureau institutions, is issued
pursuant to these authorities and, when finalized, is intended to have
the force of law.
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\42\ 18 U.S.C. 4001(b)(1).
\43\ 5 U.S.C. 301.
\44\ CARES Act sec. 12003(b)(2), 134 Stat. 516.
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Although the Department believes its understanding of CARES Act
section 12003(b)(2) is the best reading of the statute for the reasons
explained above, were a court to disagree and find the statute unclear,
the Department's interpretation would be reasonable for those same
reasons and the additional reasons explained below. As has already been
discussed, the Department's interpretation of the CARES Act is aligned
with the relevant statutory language, structure, purpose, and history.
The Department's interpretation is also consistent with congressional
action demonstrating an interest in increasing the Bureau's use of home
confinement. It is in the best operational interests of the Bureau and
the institutions it manages. And it is in the best penological
interests of affected inmates. For these additional reasons, detailed
further below, if the statute is deemed ambiguous, the Department's
interpretation of section 12003(b)(2) represents a reasonable exercise
of the Attorney General's and the Director's policy discretion that
would be entitled to deference.
D. Congressional Intent
The Department's interpretation of the CARES Act is consistent with
bipartisan legislation signaling Congress's interest in expanding the
use of home confinement and placing inmates in home confinement for
longer periods of time. Such legislative efforts have been part of
Congress's broader push to manage prison populations, facilitate
inmates' successful reentry into communities, and reduce recidivism
risk.\45\ These efforts were undertaken over years of bipartisan
negotiations and garnered broad support across the political spectrum,
beginning with the Second Chance Act of 2007 and
[[Page 36793]]
continuing in the First Step Act of 2018.\46\
---------------------------------------------------------------------------
\45\ 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.''); H.R. Rep.
No. 110-140, at 1-5 (2007) (``The Second Chance Act will strengthen
overall efforts to reduce recidivism, increase public safety, and
help States and communities to better address the growing population
of ex-offenders returning to their communities. The bill focuses on
development and support of programs that provide alternatives to
incarceration, expand the availability of substance abuse treatment,
strengthen families, and expand comprehensive re-entry services. The
bill is a product of multi-year bipartisan negotiations and enjoys
support from across the political spectrum.'').
\46\ The House of Representatives passed the Second Chance Act
by a vote of 347 to 62, and the Senate passed the Act without
amendment by unanimous consent. See H.R. 1593--Second Chance Act of
2007, Congress.gov, available at https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5 (last visited Apr.
28, 2022). The House of Representatives passed the First Step Act by
a vote of 358 to 36, and the Senate passed the Act by a vote of 87
to 12. See S. 756--First Step Act of 2018, Congress.gov, available
at https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9 (last visited Apr. 28, 2022).
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In the SCA, Congress increased the Bureau's discretion to place
inmates in home confinement in two ways. First, it instructed the
Director to ensure, to the extent practicable, that a prisoner spends a
portion of the final months of her term of imprisonment in conditions
designed to prepare her for reentry into the community, including
community correctional facilities, and explicitly provided the Director
with discretion to place inmates in home confinement for a period not
to exceed the last six months or 10 percent of their terms of
imprisonment.\47\ Second, the SCA established a pilot program to allow
the Bureau to place eligible non-violent elderly offenders in home
confinement for longer periods.
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\47\ SCA, Public Law 110-199, sec. 251(a), 122 Stat. 657, 692-93
(2008).
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Congress further expanded the Bureau's use of home confinement
through the FSA in three contexts. First, the FSA demonstrated
Congress's interest in increasing the amount of time low-risk offenders
spend in home confinement, while continuing to leave decisions about
individual prisoners to the Bureau's discretion, by providing that
``[t]he Bureau of Prisons shall, to the extent practicable, place
prisoners with lower risk levels and lower needs on home confinement
for the maximum amount of time permitted under [18 U.S.C.
3624(c)(2)].'' \48\ Second, the FSA reauthorized and expanded the pilot
program to place eligible elderly offenders in home confinement by
lowering the age requirement from 65 to 60 years old, reducing the
amount of the sentence imposed an inmate must have served to qualify
for the program, and allowing it to be applied to eligible terminally
ill inmates regardless of age.\49\ Third, the FSA created an incentive
for eligible inmates to participate in programs shown to reduce their
risk of recidivism by allowing individuals to earn time credits, which
may be used for earlier transfer to prerelease custody, including home
confinement, notwithstanding the time limits included in 18 U.S.C.
3624(c)(2).\50\ The statute provides that an inmate placed in home
confinement under this incentive program ``shall remain in home
confinement until the prisoner has served not less than 85 percent of
the prisoner's imposed term of imprisonment,'' and that the Bureau
should provide progressively less restrictive conditions on inmates who
demonstrate continued compliance with the conditions of prerelease
custody.\51\
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\48\ FSA sec. 602, 132 Stat. 5238.
\49\ Id. sec. 603(a), 132 Stat. 5238.
\50\ Id. sec. 101, 132 Stat. at 5198, codified in relevant part
at 18 U.S.C. 3632(d); id. at sec. 102, 132 Stat. 5210-13, codified
at 18 U.S.C. 3624(g).
\51\ See 18 U.S.C. 3624(g)(2)(A)(iv), (g)(4).
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Although the CARES Act was a response to the emergency conditions
presented by the COVID-19 pandemic, Congress's expansion of the
Bureau's home confinement authority as part of that response is
consistent with its recent and clear indication of support for
expanding the use of home confinement based on the needs of individual
offenders. These indications of congressional intent further bolster
the Department's view 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 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. As explained below, in the Bureau's expert
assessment, whether an inmate should remain in home confinement is a
decision best made upon careful consideration of the appropriate
management of Bureau institutions, penological, rehabilitative, public
health, and public safety goals, and the totality of the circumstances
of individual offenders.
E. Operational Benefits
Allowing certain inmates who were placed in home confinement under
the CARES Act to remain in home confinement after the expiration of the
covered emergency period will also afford a number of operational
benefits. These benefits include operational flexibility in managing
BOP-operated institutions and cost savings for the Bureau. It is
further supported by evidence demonstrating that the Bureau can
appropriately manage public safety concerns related to inmates in home
confinement, and by the penological, rehabilitative, public health,
public safety, and societal benefits of allowing inmates to effectively
prepare for successful reentry after the conclusion of their criminal
sentences. Finally, this interpretation permits the Bureau to take into
account whether returning CARES Act inmates to secure custody, thereby
increasing populations in BOP facilities, risks new, potentially
serious COVID-19 outbreaks in prisons even after the broader national
emergency has passed.
One of the vital tools in operating a correctional system is 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 \52\ and discretion to designate the place of those
inmates' imprisonment.\53\ Courts have recognized the Bureau's
authority to administer inmates' sentences,\54\ supporting this
management principle. The Bureau's ability to control populations in
BOP-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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\52\ 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 . . .
.'').
\53\ 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.
\54\ 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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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.\55\ In contrast, according to the Bureau, an
inmate in home confinement costs an
[[Page 36794]]
average of $55 per day--less than half of 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, 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.\56\
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\55\ Annual Determination of Average Cost of Incarceration Fee
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
\56\ See, e.g., H.R. Rep. No. 115-699, at 22-24 (``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.'').
---------------------------------------------------------------------------
As the extremely low percentage of inmates placed on 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 8, 2022, only 322 had
been returned to secure custody for any reason, and only eight 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 which 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.\57\ CARES Act inmates who remain in home
confinement after 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.\58\ Thus, in the
Department's view, 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.
---------------------------------------------------------------------------
\57\ See Federal Bureau of Prisons Program Statement 7320.01,
CN-2, Home Confinement (updated Dec. 15, 2017), available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
\58\ 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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Congress has demonstrated through the passage of the SCA and the
FSA an increasing interest in appropriately preparing inmates for
reintegration into society, and an ongoing reevaluation of the societal
benefits of incarceration versus non-custodial rehabilitative
programs.\59\ Home confinement provides penological benefits as one of
the last steps in a reentry program. An inmate would usually be moved
over the course of a sentence to progressively less secure 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.\60\
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 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, as findings in the SCA indicate,
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.\61\ Although placements under the CARES Act were not made
for reentry purposes, 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. 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, rather than categorically requiring
all inmates placed on CARES Act home confinement to be treated the
same.\62\
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\59\ See, e.g., H.R. Rep. No. 115-699, at 22-24; SCA sec. 3(a),
122 Stat. at 658 (``The purposes of the Act are . . . to rebuild
ties between offenders and their families, while the offenders are
incarcerated and after reentry into the community, to promote stable
families and communities; . . . to encourage the development and
support of, and to expand the availability of, evidence-based
programs that enhance public safety and reduce recidivism, such as
substance abuse treatment, alternatives to incarceration, and
comprehensive reentry services . . . .'').
\60\ Congress demonstrated support for this type of logical
progression toward reentry in the First Step Act. See FSA sec. 101,
132 Stat. 5212, codifed at 18 U.S.C. 3624(g)(4) (``In determining
appropriate conditions for prisoners placed in prerelease custody
pursuant to this subsection, the Director of the Bureau of Prisons
shall, to the extent practicable, provide that increasingly less
restrictive conditions shall be imposed on prisoners who demonstrate
continued compliance with the conditions of such prerelease custody,
so as to most effectively prepare such prisoners for reentry.'').
\61\ See SCA sec. 3(b), 122 Stat. 658-60 (``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 the community, and therefore can reduce
recidivism.'').
\62\ 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 including
the inmate's history and characteristics. See 18 U.S.C. 3621(b).
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Finally, the Bureau needs flexibility to consider whether continued
home 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.\63\ Data have shown that
[[Page 36795]]
increased crowding in prisons, which makes social distancing difficult,
is associated with increased incidence of COVID-19.\64\ Although COVID-
19 vaccines are widely available and effective at preventing infection,
serious illness, and death, not all incarcerated persons will elect to
receive COVID-19 vaccinations,\65\ and breakthrough infections may
occur even in fully vaccinated persons, who are then able to spread the
disease.\66\ 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 \67\ 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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\63\ See, e.g., CDC, For People Living in Prisons and Jails
(updated Feb. 15, 2022), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/living-prisons-jails.html (last visited Apr. 29, 2022); Nat'l Academies of
Sciences, Engineering, and Medicine, Decarcerating Correctional
Facilities during COVID-19: Advancing Health, Equity, and Safety 23-
44 (2020), available at https://doi.org/10.17226/25945 (last visited
Apr. 29, 2022).
\64\ 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 (2020), available at https://doi.org/10.17226/25945 (last visited Apr. 29, 2022).
\65\ Early studies 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 (2021).
\66\ CDC, The Possibility of COVID-19 after Vaccination:
Breakthrough Infections (updated Dec. 17, 2021), available at
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html (last visited Apr.
29, 2022).
\67\ See Memorandum for the Director, Bureau of Prisons from the
Attorney General, Re: Prioritization of Home Confinement As
Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020),
available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (directing the Bureau to consider,
among other discretionary factors, ``the age and vulnerability of
[an] inmate to COVID-19'' when assessing which inmates should be
placed in home confinement).
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For all of these reasons, the Department believes that it is not
only statutorily authorized, but also operationally appropriate for the
Director to have the discretion to allow individuals placed in home
confinement under the CARES Act to remain in home confinement after the
end of the covered emergency period. Following the issuance of a final
rule, the Bureau will develop, in consultation with the Department,
guidance to explain criteria that 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.
III. Regulatory Certifications
A. Regulatory Flexibility Act
The Attorney General, under the Regulatory Flexibility Act (5
U.S.C. 605(b)), reviewed this proposed 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
regulation 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 proposed 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 proposed 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
rulemaking as required by Executive Order 12866 section 1(b)(6) and has
made a reasoned determination that the benefits of this rulemaking
justify its costs.
The economic impact of this proposed 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 10, 2022, 4,902
inmates had been placed in home confinement under the CARES Act; 2,826
of those inmates had release dates in more than 12 months. The
Department expects these numbers will continue to fluctuate as inmates
continue to serve their sentences and the Bureau continues to conduct
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 cost of
incarceration fees (COIF) for Fiscal Year (FY) 2021, in FY 2020 the
average COIF for a Federal inmate in a Federal facility was $120.59 per
day.\68\ The average cost for an inmate in home confinement was $55 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 proposed 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 proposed rulemaking.
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\68\ Annual Determination of Average Cost of Incarceration Fee
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
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As explained above, the proposed rule will also have operational,
penological, 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 goals and the 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 that there is no countervailing risk
to the public safety that outweighs the benefits of this rulemaking.
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 on CARES Act home confinement have
complied with the terms of the program and have been successfully
serving their sentences in the community. Thus, in
[[Page 36796]]
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 placed 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,\69\ any impact on victims or witnesses, possible
deterrence effects in the community, or other aspects of the agency'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 and equitable
treatment of offenders.
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\69\ 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 proposed 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 proposed 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 proposed regulation does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
F. Unfunded Mandates Reform Act of 1995
This proposed 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 proposed 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 proposed 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 proposed to be
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:
Sec. 0.96 Delegations.
* * * * *
(u) With respect to the authorities granted under the Coronavirus
Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136):
(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 her sentence, as
the Director determines appropriate.
(3) This section 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: June 14, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-13217 Filed 6-17-22; 8:45 am]
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