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).

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