On March 26, 2020, Attorney General William Barr sent a memorandum to the federal Bureau of Prisons to expand the use of home confinement  as a response to the ongoing COVID-19 pandemic in order to mitigate the spread of the virus in the country’s prison system and to protect the health and safety of BOP personnel.

In his memorandum, Attorney General Barr told the BOP to prioritize granting home confinement to older inmates with underlying conditions who were convicted of lower level crimes, who have a low risk of recidivism, and who might be safer serving their sentences in home confinement rather than in BOP facilities.  The memorandum outlines several factors the BOP should take into account when deciding whether to grant an inmate’s request for a transfer to home confinement and requires a 14-day quarantine period inside prison.  Some of the factors include the age and vulnerability of the inmate to COVID-19, the inmate’s conduct while incarcerated, the seriousness of the crime for which the inmate was convicted, and whether the inmate still poses a danger to the community.

This memorandum comes after one criminal justice group sent a letter to Attorney General Barr urging the immediate use of his authority to release eligible inmates to home confinement as soon as the CARES Act becomes law.

The CARES Act was passed by the Senate and is expected to be approved by the House of Representatives and signed into law by the president in the coming days.  Section 12003(b)(2)  of the CARES Act would permit the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that an inmate may be placed in home confinement, if the Attorney General finds that emergency conditions, such as the unprecedented COVID-19 crisis, will materially affect the functioning of the BOP.

Current law limits home confinement at six months or 10 percent of the sentence, whichever is shorter. However, the CARES Act expands the maximum amount of time of home confinement to whatever amount the Director of the BOP “determines appropriate.”

The CARES Act and memorandum are a step in the right direction to mitigate a dangerous spread of COVID-19 in the prison system; however, it remains to be seen how the BOP will implement them as traditionally the BOP has been conservative in its application of authority to provide relief.

For more information regarding eligibility of home confinement, contact our firm.