New BOP Memo Expands Eligibility for Home Confinement

The Federal Docket

April 21, 2021

Last week, Families Against Mandatory Minimums (“FAMM”) issued a statement praising a memo issued by DOJ that expanded the number of inmates who are eligible for release to home confinement under the CARES Act. Neither the BOP nor the DOJ have publicly released or published that memo, however, leaving criminal defense attorneys and prisoner advocates in the dark about what the new guidelines are and whether their clients or loved ones can seek relief under the expanded authority.

Two days ago, Keri Blakinger of the Marshall Project tweeted that she had obtained a copy of the memo and that BOP confirmed its contents. The memo can be found here.

Among the most significant changes are that inmates with low-level disciplinary issues and Low PATTERN scores (as opposed to Minimum) are now eligible for release to home confinement. Other criteria remains the same, such as the ineligibility of certain violent or sex offenders and the prioritization of inmates who have served at least 50% of their sentences or who have 18 months or less remaining on their sentence and have served 25% or more of that sentence. Inmates who do not meet those requirements are not ineligible per se, but it is certainly going to be more difficult for them to qualify for home confinement absent other compelling reasons. The memo also instructs the BOP to consider inmates for release to halfway homes if they do not qualify for home confinement.

As reflected in BOP Director Carvajal’s testimony before the U.S. Senate, the BOP has not released as many inmates to home confinement as experts have called for in order to meaningfully address the COVID-19 pandemic. Hopefully, the change in presidential administrations and this latest guidance from DOJ will begin to change that.

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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