Senate Bill Lets BOP Use More Home Confinement To Fight Coronavirus

The U.S. Senate, late Wednesday, passed legislation that grants the Attorney General the authority to permit expanded use of home confinement by the Federal Bureau of Prisons (“BOP”) to help deal with the spread of COVID-19, commonly known as the coronavirus. The bill also allows for free video visits if the expanded home confinement authority is triggered.

Under the legislation, if the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.”

Under existing law the BOP may place a prisoner on home confinement under section 3624(c)(2) for ten percent of a prisoner’s sentence or six months, whichever is less.

It is not clear how, and to what extent, the BOP will use this new authority, assuming the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.”

Historically, the BOP has been stingy with home confinement. For example, as part of the First Step Act of 2018, Congress reauthorized an expanded elderly offender home detention pilot program that allows non-violent offenders 60 and over who have served two-thirds of their sentence to serve the remainder of the sentence on home confinement. But the BOP narrowly interpreted what it means to serve “two-thirds” of a sentence by excluding prisoner good conduct time in that calculation. In nearly all other matters, BOP factors the prisoner’s good conduct time into its decisionmaking.

Because the bill gives the BOP Director unfettered discretion to use–or not use–this new authority after the Attorney General’s finding, there is little confidence that this provision will be used extensively by the BOP to expand home confinement. Moreover, this authority expires after the coronavirus crisis ends. It unclear if prisoners previously sent to home confinement under the expanded authority would be required to return to a BOP institution once “emergency conditions” no longer “materially affect the functioning of the Bureau.”

There is also concern that this language, which was added to the Senate bill at the last minute, is merely a trojan horse for the Department of Justice to use in opposing motions for compassionate release based on COVID-19. The DOJ will likely argue that judges should defer to the BOP, rather than grant compassionate release to potentially affected prisoners, citing the expanded home confinement authority authorized by Congress.

The Senate bill must be voted on by the U.S. House and signed by the President before it becomes law. The House is expected to take up the measure on Thursday. The President has indicated that he will sign the legislation if it is passed.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

2 Comments

  1. Chad Zippmann on March 26, 2020 at 1:20 pm

    I am seeking Compassionate Release or Reduction in Sentencing pursuant to U.S.C. 3582 (c)(1)(a) and Section 603(b) of the First Step Act. A motion for modification of a sentence will be made to the sentencing court in only particularly extraordnary or compelling circumstances that could not reasonably have been seen by the court since sentencing. The global pandenmic of coronovirus meets this criteria.

    I was sentenced to 22 months at Greenville on February 6, 2020 by the U.S. District in Eastern District Missouri. I am 63 and a half years of age. I also have chronic illnesses which include: heart disease, left bundle branch block to my heart, murmur, enlarged heart, hypertension, asthma and sleep apnea.

    The Center for Disease Control has advised that persons over age 60 with health issues of heart disease, hypertension or diabetes should stay at home, since they are at high risk of death from coronovirus. I am unable to follow this directive from the CDC due to my incarceration. I am also prevented from following the same directive from the Governor of Illiniois to shelter at my home in Addison, Illinois.

    Due to these extraordinary circumstances my constitutional rights are being violated as a result of my incarceration. The Eighth Amendment prohibits cruel and unusual upnishment. Due to my age and medication conditions, the CDC places me at high risk of death if exposed to the coronovirus. Therefore, if I continue my sentence in Greenville, I am being subjected to a death sentence which is grossly disproportionate to my first, non-violent white collar offense.

    Prison officials must maintain humane condition of confiement and take measures to guarantee the safety of prisoners. Federal officials have testified to members of Congress, “There is no way for inmates to do social distancing; risons are not sanitary and are susceptible to contagion”.

    Although I have no prior experience in the federal prison system, I feel fortunate to have been initially assigned to Women’s Camp in Greenville. It has many advantages I have been told by other inmates over other facilities. I have found the staff friendly and professional, and although we are under some restrictions due to the pandemic, there are ample educational and vocational opportunities for inmates.

    However, Greenville is located in Illinois, one of the country’s highest ranking states for coronovirus outbreaks. It seems to be a matter of time when this prison. either staff or inmate, will become infected. Due to the density of the prison environment, a rapid spread of the virus seems inevitable. In the past month there have been many inmates sick with upper respiratory infections which also spread quickly. I am currently assigned to a bus-stop which houses up to 10 inmates in close sleeping quarters. There are approximately 75 inmates utilizing a common bathroom area. This area is understandably moist but it is a breeding ground for germs. We are provided with a pink solution to wipe down surfaces, however there must be a supply shortage due the coronovirus as we do not have paper towels. Instead we are given 5 small washcloths to wipe surfaces, and these are also used by inmates after use of the restroom and sinks. Outside staff to Greenville, coming from the Illinois region and possibly St. Louis (also shut down) interact with prisoners on a daily basis, which poses a risk of exposure to the inmates.

    Prisoner visits have been understandably cancelled. However, this adds to anxiety and mental stress for the inmates. We are all concerned for our families who are dealing with this crisis without our help our support. This pandemic has created not only medical concerns, but financial issues. Children are out of school and family members may not be able to provide adequate daytime care. This situation adds a level of cruelty to the incarceration during this unprecedented crisis.

    Many state governments, including Illinois where Greenville is located, have responded to this emergency by releasing prisoners across the United States.

    President Trump also announced in a news conference on March 22, 2020, that he is considering an Executive Order to release elderly, non-violent prisoners from federal prisons. This action would be consistent with the current release of prisoners by the states.

    Under 18 U.S.C. 3142 (g) I pose no further risk or danger to the safety of any person in the community.

    I hereby request a sentence reduction and/or Compassionate Release, allowing me to serve the remaining portion in home confinement at my residence in Addison, Illinois. Before my self-surrender to Greenville on March 11, 2020, I have been under detention and supervision of the BOP at home in St. Louis since October 10, 2020. I would be glad to increase my community service hours above those included in my sentence to help my country in any way possible during this crisis and aftermath.

    My hope is that in addition to my personal request for compassionate release, that all of the women at Greenville would be reviewed and considered for release as well.

    My husband is Chad Zippmann phone- (314) 616-1851

    Respectfully submitted,

    Mary Ann Gibson
    Registration #49530-044

  2. Delores Brown on May 5, 2020 at 2:00 pm

    My fiancee is scheduled to be released April 2022. He has not received is credit for first step act. He is a non violent offender and may be considered for home confinement. How do I prepare for his release? What are the steps and requirements ?

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