Federal Criminal Defense Update
Federal Prisoners on Home Confinement due to the COVID-19 Pandemic Will Not be Returned to Prison “en masse.” Many federal criminal defendants who have been released on home confinement, stand a much better chance of remaining out of jail.
For almost 3,000 inmates currently living in home confinement, the DOJ’s latest directive reversing their prior position on what will happen to those individuals when the pandemic ends come as a relief. The passage of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in March 2020 authorized the Director of the Bureau of Prisons (“BOP”) to “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 2624(c)(2) of title 18 United States Code, as the Director determines appropriate.”  In other words, the Director of the BOP was granted discretion to extend the period of home confinement a prisoner could have from that period mandated by 18 U.S.C. § 3624(c)(2), which was the lesser of ten percent of the individual’s sentence or 6 months. The CARES Act clearly removed that requirement “during the covered emergency period,” but was silent as to what would happen to individuals placed on home confinement whose remaining sentence exceeded ten percent of their sentence or 6 months when the emergency was over. In January 2021, the DOJ announced that when the COVID-19 emergency ends, the BOP would recall those individuals back to prison.
In July of 2021, the ACLU and a multitude of other organizations wrote a letter to President Biden urging him to reconsider the DOJ’s position. The letter pointed out the individuals on home confinement had to meet “numerous stringent requirements” to be allowed on home confinement, “including that they will not be a risk to public safety.” “Not surprisingly,” the letter goes on to explain, “less than one percent [of individuals] have violated the terms of their release once transferred to home confinement.” Many of those transferred to home confinement as a result of the CARES Act was able to obtain employment and begin to meaningfully contribute to society. Seemingly compelled, at least in part, by the likes of the ACLU’s position, the DOJ reexamined their January 2021 directive. In December 2021, the DOJ issued a new directive—based on statutory construction, legislative history, and the Act’s purpose—concluded the CARES Act “does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.” Rather, the BOP will “develop criteria to evaluate which prisoners should remain in home confinement and which should be returned to facilities for sound penological reasons.” (emphasis added). This reversal will not only benefit the thousands of inmates that are already excelling in on release from federal crimes, who are now on home confinement but will allow the BOP to allocate resources more efficiently.
To discuss the federal criminal defense update, or criminal law more generally, reach out to New Jersey and New York criminal defense lawyer Lorraine Gauli-Rufo at 973-239-4300 or at LGR LAW for a consultation today. For more information about the firm, please visit LGR LAW’s website.
 Discretion to Continue the Home-Confinement Placement of Federal Prisoners After the COVID-19 Emergency, 45 Op. O.L.C. __ (Dec. 21, 2021) at *4 available at https://www.justice.gov/sites/default/files/opinions/attachments/2021/12/21/2021-12-21-home-confinement_slip_op.pdf
 CARES Act Section 12003(b)(2)
 ACLU, et al., Coalition Letter to President Biden on CARES Act Clemency (July 19, 2021), available at https://www.aclu.org/letter/coalition-letter-president-biden-cares-act-clemency
 Supra, n. 1 at *2.
 Id. at *7.