The CARES Act provided funding for the United States to tackle the COVID-19 pandemic, but it provided the Federal Bureua of Prisons (BOP) a means to both reduce crowding in federal prisons and place some minimum security prisoners with underlying health conditions on home confinement to complete their sentences. Over 12,000 prisoners have successfully been transferred to home confinement under the CARES Act and few have violated the conditions that returned them to prison. The Office of Legal Counsel determined that BOP’s preexisting authorities did not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Now, the Biden Administration has called for the end of national emergency and public health emergency associated with the COVID-19 pandemic on May 11, 2023 and that will mean that some prisoners will not see the benefit of home confinement.
The Federal Register published a draft of the final rule to end CARES Act home confinement in June 2022. Comments and the final rule itself are now at the White House and will soon be published. In the draft proposal, the Department of Justice indicated that the BOP would stop home confinement placements of prisoners 30 days after the emergency period ends, so mid-June 2023.
As the program sunsets, one would think the BOP is slowing transfer of some prisoners to home confinement under CARES Act, but not so. Randilee Giamusso, who works at the BOP’s Office of Public Affairs gave a statement that, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.” That is welcome news to prisoners who meet the eligibility requirements for CARES Act placement.
Many are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison. Maureen Baird, retired BOP Warden, told me in an interview, “Prisons are communal settings where contagion is always a concern. I think the BOP has gone to great measures to try to avoid that contagion and one of the most successful measures has been CARES Act home confinement.”
The BOP set additional conditions on those prisoners who would otherwise be eligible for home confinement by stating that a certain amount of the prison term must have been completed. The conditions were that 50% of the sentence needed to have been served or 25% with less than 18 months remaining. When these conditions were not met, the BOP set up a committee (Home Confinement Committee) at its Central Office in Washington DC who further considered the candidate and, in some cases, they allowed prisoners who had served less time than that established by the BOP to be on home confinement. However, one of the criteria at the committee was that the BOP reach out to the US Attorneys Office to gauge whether they would oppose home confinement. In many cases, prosecutors did oppose rather than just defer to the BOP, who know best how to house prisoners in its care.
Those prisoners who had been denied CARES Act because of US Attorney input also had to go back to Central Office later even when they met the time-served requirements. This usually led to the same opposition and denial. However, on March 9, 2023, in BOP issued an internal memorandum on home confinement stating that “Effective with the issuance of this memo, referrals for home confinement placement no longer need to be submitted to the HCC [Home Confinement Committee] if the inmate now meets all established criteria.” The memo put that excerpt in bold print to emphasize the significant change. With this memorandum, referrals for CARES Act will now be sent directly to the appropriate Residential Reentry Management Office who will make a determination based on availability of community resources (halfway house capacity) that monitor home confinement.
The CARES Act demonstrated that a select group of prisoners could be identified and successfully placed in community settings for an extended portion of their sentence. There are currently prisoners on CARES Act who still have over 5 years remaining on their prison term who are under strict terms of home confinement and subject to being returned to an institution in the event of failing to live up to those terms.
Some of those that may be left behind are watching the clock. Donovan Davis Jr., an African-American, is an inmate at the FCI Camp in Coleman, Florida, with a unique expertise as a heavy equipment mechanic and heavy equipment operator. He works roughly 40 hours per week in the institution’s Facilities Department where he repairs the forklifts and the institutions zero-turn lawnmowers used to upkeep the grounds surrounding the sprawling FCC Coleman compound. The minimum security Davis, who also has community custody (the same level as someone on home confinement) has an anticipated release date of December 3, 2028. He also has a number of health issues that make him eligible for CARES Act.
Davis’ wife Christie told me in an interview, “They give him the keys to the facility’s vehicles, and he’s allowed to roam the complex. I’m not sure why he couldn’t be supervised at home because prison may just end up killing him.”
Brad Adkins is at the Federal Prison Camp in Montgomery, AL where he too is serving a long sentence which is over halfway over. Adkins is expected to be released on June 7, 2031 but besides immediate health concerns of an irregular heart rhythm and hypertension that make him eligible for CARES Act, something the warden of the facility supports, he is suffering from global dementia as a result of a brain injury he suffered during military action in Iraq. The US Army veteran is hoping to be reunited with his family again after being in prison now for over 14 years. Adkins, like a number of prisoners at Montgomery, is minimum security and community custody, the same as someone today who is on home confinement. Adkins wife told me, “Brad was approved before by the warden and the case manager, but he had so long left on his sentence that he went to the review committee who reached out to the US Attorney and they opposed. They don’t see how much he has changed and I fear he will die in prison.”
