The Coronavirus Aid, Relief, and Economic Security Act (CARES) was passed in March 2020 to address the health crisis of the COVID-19 pandemic as well as provide much needed economic stimulus for many Americans to weather the financial hardship of the pandemic. One provision of the CARES Act allowed the Attorney General, then William Barr, to declare an emergency in the Federal Bureau of Prisons (BOP) to move minimum security inmates to home confinement to complete their sentences.
Under the program, over 13,000 nonviolent offenders over 3 years were transferred from federal prisons to home confinement under the CARES Act, many of whom have since successfully completed their term. However, there are over 2,600 prisoners still on home confinement under CARES Act and Congress seems poised to order them back to prison; advocates believe this is a step backwards for criminal justice reform.
Returning inmates from home confinement to prison under CARES Act is not a new discussion. Many of those on home confinement only had 12-24 months remaining in their sentence but there were some who had years remaining. Most all have integrated back into society under a strict regimen of accountability and security that restricts their movements. In the waning days of the Trump administration, the Office of Legal Counsel (OLC) stated once the pandemic was declared over, prisoners must return to prison to complete their sentence. Once Biden took office, after immense pushback from groups and individuals from across the political spectrum, the OLC under his administration reversed the earlier decision and concluded that it was up to the BOP as to whether or not the inmates would have to return to prison upon the end of the pandemic. So far, the BOP has no plans to return those prisoners back to institutional living.
Many prisoners have been caught in the middle of this decision and now Congress has proposed a resolution under the Congressional Review Act (CRA), that would call for those prisoners on home confinement to be returned to prison to complete their sentence. The CRA allows Congress to review major rules issued by federal agencies before the rules take effect. The resolution, S.J. Res. 47, was sponsored by Senator Marsha Blackburn (R-TN) and thus far has 28 cosponsors, all Republicans including Senator Tom Cotton who has supported long prison terms for federal prisoners. The House has a similar effort, championed by Rep. Paul Gosar, a controversial Republican from Arizona.
The CARES Act sent inmates like Brian Newton (66 years old) to home confinement under the CARES Act. Newtown spent 8 years in prison prior to the CARES Act but still has a release date from the BOP of November 2027. His path to home confinement was not an easy one. “I was on the very first list of candidates to be considered in 2020 because of health issues I had,” Newton said. However, he was denied based on BOP guidelines about the amount of his sentence that must be completed before being considered for home confinement. Shortly after his denial, Newton contracted a bad case of COVID that nearly sent him to the hospital. In July of 2022 he was again issued a date for CARES Act placement only to have his transfer pulled just 2 days prior to his transfer to home confinement. He was finally transferred to home confinement on February 28, 2023. “I’m the least problem to anyone monitoring me and I’m thankful to be out of prison and respect that I am one of the lucky ones to get this chance outside of prison walls,” Newton said, “however, there are many people inside of prisons who could be doing their time in the community. It isn’t easy, but it’s better than prison.”
Home confinement has been used for decades by the BOP as it usually allows most prisoners, even those from higher security prisons, to spend up to 6 months of their prison term on home confinement. The CARES Act allowed an expanded use of home confinement for the purpose of removing health-vulnerable inmates from prison environments. To be eligible, inmates had to have serious health issues, as approved by the CDC, that made them extra vulnerable to COVID. The action undoubtedly saved many lives of inmates, staff and the general community which had to care for those sick at the prison, an environment where social distancing is not practical. Indeed, the death rate during the pandemic was several times higher for someone in prison versus someone at home.
Of the thousands transferred to home confinement, the overwhelming majority have been compliant with the strict rules. From a safety perspective it was a massive success, with less than 1% of the inmates transferred to home under this program reoffending. The national average for an inmate to re-offend is 43% recidivism rate. Yet, Congress seems to want to continue to push inmates back to institutions for a process that is working and saving the taxpayers millions.
“Congress should be focused on reducing violent crime, not filling our prisons with individuals who have zero history of violence,” said Rabbi Moshe Margaretten who heads the humanitarian organization Tzedek Association and is one of many organizations pushing back against this resolution.
Advocates are extremely concerned about the human impact this kind of decision would have.
“This is psychological torture,” added Rabbi Margaretten. “It is equivalent to sentencing these people to prison all over again because they have been told by the Department of Justice that they can remain home under supervision for the remainder of their sentence.”
The CARES Act ended in April 2023 so the flow of inmates to home confinement under the program has stopped. However, there are thousands still on home confinement and some have release dates from the BOP that are 3, 4 or over 10 years from today. They have reintegrated back into society and with their family. “Plucking these men and women away from their families at this point would simply be inhumane, defying all arguments of reentry,” Margaretten said. “These individuals – who pose little threat to society — are enrolled in schools, have jobs and are finally reunited with their families. It would reverse all they had accomplished and would devastate their children and families.”
At a time when there are overcrowded prisons and a BOP staffing problem, shipping over 2,600 inmates back to prison, many of whom are elderly and suffer from ailments, would only overwhelm an already overwhelmed system.
The White House has announced that if “the President were presented with S.J. Res. 47, he would veto it.” However, those who are home have lived with the prospect of returning for their entire time on home confinement.
Still, Margaretten warns “passing this resolution would send a terrible message that criminal justice reform is all but dead.”
The BOP currently has relatively few options for alternatives to incarceration. There are four levels of security classifications in federal prison (minimum, low, medium and high). Those on CARES Act were mostly minimum security inmates, many older with health issues, who have been at home for years. Home confinement was a part of the Elderly Offender Pilot program, which allowed older, minimum security, inmates to spend up to 33% of their sentence on home confinement. However, that program expired in the fall of 2023, ending yet another successful, but underutilized, program to house inmates outside of the prison environment.
These individuals on Home Confinement under CARES Act were vetted by the carceral experts, the BOP and the Department of Justice. Many of these individuals are non-violent first-time elderly offenders who have proven they are capable of being law abiding citizens. Keep in mind, they are still in a restrictive form of custody and remain in custody until completion of their sentence. They have an ankle monitor, receive daily phone calls from the halfway house, have weekly check-ins, must obtain approval for leaving the house for any purpose, receive weekly drug screening and breathalyzer as well as impromptu visits to make sure the individual is complying with the rules. This method of confinement not only creates the ability for true reform but offers a substantial savings to the taxpayer. It also offers the offenders a real opportunity to pay back their debts owed to victims if restitution is part of their sentence. The home confinement system also minimizes the amount of people in prison which reduces the amount of disease resulting from the communal setting, providing much needed relief to the BOP health care system.
According to the BOP, there are currently 2,656 prisoners on home confinement under the CARES Act ... 111 prisoners have 5-10 years remaining on their sentence and just 6 have 10 years or more. So legislation regarding returning people to prison only concerns about 117 prisoners as many of the others would be eligible for home confinement under provisions of the First Step Act or Second Chance Act, two programs that have also shown much promise.
This election year may decide not only whether prisoners will be returned to prison, but also the swing of criminal justice reform which has enjoyed some momentum since 2018 when the First Step Act was passed.
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Article originally published on Forbes.com by Walter Pavlo (Jan 5, 2024)
