DOJ Memo to BOP: Inmates on home confinement must return to prison after the COVID-19 pandemic.

The Federal Docket

In a memorandum issued to the BOP on January 15, 2021, the Department of Justice advised the BOP that inmates who have been released to home confinement under the CARES Act must come back to prison once the COVID-19 emergency is over.

Under the CARES Act, the Director of the BOP was granted expanded authority to place inmates in home confinement earlier than they would normally qualify based on the COVID-19 emergency at the BOP’s correctional facilities. Thousands of inmates have been infected with COVID-19 and hundreds have died from the disease. Since the Attorney General declared COVID-19 an emergency authorizing the BOP to send more inmates to home confinement, the BOP has released over 20,000 inmates to home confinement. The reduction in the inmate population has been applauded as an effective measure to reduce the spread of COVID-19 in prisons, and public health experts have been urging prisons to reduce their populations even further.

The question now that a vaccine is available is–what happens to inmates on home confinement once the Attorney General declares an end to the COVID-19 emergency? The DOJ’s memo to the BOP states that those inmates will have to go back to prison unless they have become eligible for home confinement under the pre-COVID-19 standard since they were initially released.

Prior to this memo, there was no clear plan for what would happen to inmates on home confinement after the COVID-19 emergency ends. Some of the inmates released to home confinement have many years left to serve. Most inmates, and many lawyers, assumed these inmates would be able to complete the rest of their sentences on home confinement rather than be sent back to prison.

It is worth noting that the BOP has strict criteria for which inmates are eligible for home confinement. Inmates are ineligible if they have been convicted of violent crimes, terrorism, or sex offenses, and they have to present a low recidivism risk, a verifiable release plan, and meet other requirements before being released to home confinement. In most cases, they must have also served a significant amount of their sentence. In other words, the BOP is not releasing serial killers and dangerous criminals to home confinement, and there is little risk that the individuals on home confinement right now will pose a threat to public safety.

Critically, the memo was released under the Trump administration’s Department of Justice. Since then, President Biden has been inaugurated and has nominated Merrick Garland to be the new Attorney General. Mr. Garland has not yet announced what he will do with the inmates on home confinement once the pandemic is declared over.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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