By Hannah Friedrich
Published on May 3, 2023
Too often in the wake of the pandemic, we have failed to learn from the lessons that emergency measures have taught us. On May 11, 2023, the White House will declare an official end to the state of emergency caused by COVID-19.[1] Among the wide array of policy impacts, this decision will put a stop to an ambitious Bureau of Prisons project that has been in place since April 2022: emergency home confinement.[2] Enabled by the CARES Act,[3] this policy allows people in federal prisons at particularly high risk for COVID-19 to be removed from federal facilities and reassigned to home confinement for an extended period.[4] Emergency home confinement is lauded as a great success for the Bureau of Prisons.[5] Ending or drastically reducing the program is unreasonable in the face of its success.
Home confinement existed prior to the onset of the COVID-19 pandemic, but on a much smaller scale.[6] The duration of time that prisoners can be placed on home confinement is ordinarily limited under 18 U.S.C. § 3624(c)(2), also known as Section 3642. Under the statute, the Bureau of Prisons has the authority to place individuals on home confinement for either six months or ten percent of their sentence, or whichever is shorter.[7] Home confinement consists of wearing an ankle monitor, regularly checking in with a parole officer, taking consistent drug tests, and remaining physically confined to the home.[8] The policy is an intermediate measure, intended to aid transition from imprisonment to community membership.[9]
When Attorney General William Barr directed the Bureau of Prisons to expand the program as a means of reducing COVID-19 infection rates in federal prisons, the number of individuals on home confinement skyrocketed.[10]Since the start of the pandemic, over 54,000 people have been placed on home confinement.[11] The success of the program is apparent. In the first year and a half of emergency home confinement, only seventeen people out of eleven thousand on home confinement committed a new offense during their confinement period.[12] Only one committed a violent offense and none committed sexual assault.[13] About four hundred were sent back to prison for minor infractions like alcohol or drug use or technical violations of the terms of their confinement.[14] Many people finished their sentences on emergency home confinement and have fully reintegrated back into society.[15]
The Department of Justice has vacillated on whether the policy would be allowed to continue after the state of emergency ends. Initially, the Trump administration’s Office of Legal Counsel read the CARES Act to give the Bureau of Prisons authority to extend home confinement only for the duration of the state of emergency.[16] After an extensive call for reconsideration, however, the Department of Justice issued a tentative second opinion in December of 2021.[17] The Department of Justice then sought comment in July of 2022.[18] The Justice Department now asserts that the Director of the Bureau of Prisons has the authority to continue emergency home confinement for current participants after the state of emergency ends.[19] This means that those already in home confinement are not subject to the limitations of Section 3624, but the expanded criteria of the CARES Act will no longer apply. Those who qualify for home confinement after the official end of the state of emergency will be subject to the statutory limitation.
Home confinement has been endorsed as a potential solution to over-incarceration since the 1990s.[20] It ensures a smoother reintegration into the community with little to no public safety risk.[21] The United States has one of the highest incarceration rates in the world; in 2021, there were 1.2 million people incarcerated in federal or state prisons.[22] While the prison population has declined since its peak in 2010,[23] the incarceration rate in the U.S. is still the sixth highest in the world.[24] Recidivism rates are also high—almost forty-four percent of people released from prison reoffend within their first year.[25] That rate is staggering when compared to the number of people on emergency home confinement who reoffended.[26] While recent developments like the First Step Act, which shortened mandatory minimums for many drug-related offenses, have helped the U.S. incarceration position go from first to sixth highest in the past few years, mass incarceration remains a major policy crisis.[27]
Emergency home confinement has not been without its issues, primarily with the process of implementation. Many federal facilities were overly selective in choosing which individuals to move to home confinement, resulting in numerous eligible vulnerable people remaining in overcrowded facilities.[28] Additionally, those on emergency home confinement who committed technical or substance use violations were often sent back to prison with little to no warning, chance to defend themselves, or opportunity to correct their error.[29] In spite of its flaws, the emergency home confinement program has a clear benefit: it demonstrated, in a real-time, real-world experiment, that home confinement is an effective alternative to mass incarceration in correctional facilities. Allowing individuals currently in emergency home confinement to remain there is an important first step, but to combat mass incarceration, it is essential to go further. The limitations of Section 3624 are preventing the realization of home confinement’s full potential. Congress should remove the time-based restrictions and allow the Bureau of Prisons to continue and expand the home confinement program. State legislators should also consider implementing home confinement programs in their own prison systems. As emergency home confinement has made clear—the fault of mass incarceration is not with the prisoners, but with the prisons.
[1] Joseph R. Biden, Jr., Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, The White House (Feb. 10, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/02/10/notice-on-the-continuation-of-the-national-emergency-concerning-the-coronavirus-disease-2019-covid-19-pandemic-3/.
[2] Walter Pavlo, Federal Bureau of Prisons Set to End Home Confinement Under CARES Act, Forbes (Jan. 31, 2023), https://www.forbes.com/sites/walterpavlo/2023/01/31/federal-bureau-of-prisons-set-to-end-home-confinement-under-cares-act/?sh=6331dd6638af.
[3] Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 § 12003(b)(2), 134 Stat. 281, 515–16 (2020); see also Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 87 Fed. Reg. 36,787 (proposed Jun. 21, 2022) (establishing criteria for emergency home confinement qualification, including age and preexisting health conditions). As a whole, the CARES Act was an omnibus bill to respond to the COVID emergency.
[4] 87 Fed. Reg. 36,787, 36,788.
[5] Pavlo, Federal Bureau of Prisons Set to End Home Confinement Under CARES Act, supra note 2.
[6] Michael Santos, Home Confinement Explained, Prison Professors (2022), https://prisonprofessors.com/home-confinement-explained/.
[7] 18 U.S.C. § 3624(c)(2).
[8] Santos, supra note 6.
[9] Id.
[10] Frequently Asked Questions Regarding Potential Inmate Home Confinement in Response to the COVID-19 Pandemic, Bureau of Prisons, https://www.bop.gov/coronavirus/faq.jsp (last visited May 1, 2023).
[11] Id.
[12] Carrie Johnson, Released During COVID, Some People are Sent Back to Prison with Little or No Warning, NPR (Aug. 22, 2022, 5:16 AM), https://www.npr.org/2022/08/22/1118132380/released-during-covid-some-people-are-sent-back-to-prison-with-little-or-no-warn.
[13] Billy Sinclair, Home Confinement: A Safe Alternative to Mass Incarceration, The Crime Report (Dec. 29, 2022), https://thecrimereport.org/2022/12/29/home-confinement-a-safe-alternative-to-mass-incarceration/.
[14] Johnson, supra note 12.
[15] Bureau of Prisons, supra note 10.
[16] Home Confinement of Federal Prisoners After the COVID-19 Emergency, 45 O.L.C. 1, 1 (Jan. 15, 2021).
[17] Discretion to Continue Home-Confinement Placements of Federal Prisoners, 45 Op. O.L.C. 1 (Dec. 21, 2022), https://www.justice.gov/olc/file/1457926/download.
[18] See 87 Fed. Reg. 36,787.
[19] Id.
[20] See, e.g., Jody Klein-Saffran, Electronically Monitored Home Confinement – Not a Panacea for Corrections, but a Useful Tool (1991), available at https://www.bop.gov/resources/research_projects/published_reports/gen_program_eval/oreprelectronicmon.pdf.
[21] Santos, supra note 6.
[22] E. Ann Carson, Bureau of Just. Stat., Prisoners in 2021 – Statistical Tables 1 (Dec. 2022), available at https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/p21st.pdf.
[23] Id.; Recidivism Rate by State, Wise Voter (2023), https://wisevoter.com/state-rankings/recidivism-rates-by-state/ (last visited May 2, 2023).
[24] Highest to Lowest – Prison Population Rate, World Prison Brief, https://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All (last visited May 2, 2023).
[25] Wise Voter, supra note 23.
[26] Compare Johnson, supra note 12 (stating that only 17 out of 11,000 people on home confinement reoffended) with Wise Voter, supra note 23 (stating that the national recidivism rate is forty-four percent within the first year after release).
[27] See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (the First Step Act provides sentencing reform measures, particularly shortened sentences for many drug offenses). See generally, Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative(Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html (detailing the extent of the United States’ mass incarceration through data illustrating the “country’s disparate systems of confinement.”).
[28] Walter Pavlo, Department of Justice Proposes Final Rule to End CARES Act for Home Confinement for Federal Prisoners, Forbes (Jun. 25, 2022, 10:31 AM), https://www.forbes.com/sites/walterpavlo/2022/06/25/department-of-justice-proposes-final-rule-to-end-cares-act-for-home-confinement-for-federal-prisoners/?sh=6d06696554ec.
[29] Johnson, supra note 12.