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DOJ/BOP | RIN: 1120-AB79 | Publication ID: Fall 2022 |
Title: Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act | |
Abstract:
The Coronavirus Aid, Relief, and Economic Security Act of 2020 (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. |
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Agency: Department of Justice(DOJ) | Priority: Other Significant |
RIN Status: Previously published in the Unified Agenda | Agenda Stage of Rulemaking: Final Rule Stage |
Major: No | Unfunded Mandates: No |
CFR Citation: 28 CFR 0 | |
Legal Authority: 5 U.S.C. 301 5 U.S.C. 4001 28 U.S.C. 509, 510 |
Legal Deadline:
None |
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Statement of Need: While the home confinement program under the CARES Act has been a measurable success, inmates and their families have sought assurance that those already on home confinement will not be abruptly returned to secure custody after the end of the covered emergency period. The Department remains sensitive to these concerns and agrees with Congress’s clear indication of support for expanding the use of home confinement based on the needs of individual offenders. Affirming that the BOP 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 will support the Bureau’s ability to efficiently manage its resources and nimbly address changing circumstances in the community, in relation to the needs and profiles of individual inmates. |
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Summary of the Legal Basis: The Department concludes that the most reasonable interpretation of the CARES Act permits the Bureau to continue to make 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 -- (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 . . . .”) -- following the end of the covered emergency period. In a December 2021 opinion, the Office of Legal Counsel (“OLC”) concluded that section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Even if the relevant provision of the CARES Act were considered ambiguous, however, the Department’s interpretation represents a reasonable one that would warrant deference under Chevron, U.S.A., Inc. |
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Alternatives: The alternative to this rule would be for the Bureau to return inmates currently in home confinement to secure custody en masse, at the end of the covered emergency period without making an individualized assessment or identifying a penological, rehabilitative, public health, or public safety basis for the action.
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Anticipated Costs and Benefits: Although placements under the CARES Act were not made for reentry purposes, the Department concludes that the best use of Bureau resources and the best outcome for affected inmates is to allow the agency to make individualized assessments of CARES Act placements, with a focus on supporting 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.
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Risks: An inmate placed in home confinement is not considered released from Bureau custody. Rather, the inmate continues serving their sentence at home in their community. These individuals must follow a set of rules designed to aid in their management, facilitate their reintegration into society, and support their rehabilitative efforts. For example, 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. Moreover, 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. 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 De |
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Timetable:
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Regulatory Flexibility Analysis Required: No | Government Levels Affected: None |
Federalism: No | |
Included in the Regulatory Plan: Yes | |
RIN Data Printed in the FR: No | |
Agency Contact: Daniel J. Crooks III Assistant General Counsel, Rules Administrator Department of Justice Bureau of Prisons HOLC Building, 320 First Street NW, Washington, DC 20534 Phone:202 451-7992 Fax:202 235-4577 Email: dcrooks@bop.gov |