Home confinement for federal prisoners is about to expand with the release of the Federal Bureau of Prisons ("BOP") new April 4, 2019, Operations Memorandum, Home Confinement Under the First Step Act. You can access a copy of the entire operations memorandum here: BOP Home Confinement Memorandum. We have previously reported about the BOP's implementation of the Elderly Home Detention Pilot Program. However, the April 4, 2019, Operations Memorandum gives greater detail about how the BOP intends to implement the new home confinement provisions of the First Step Act of 2018 ("First Step Act").
BOP Recognizes Its Duty To Increase Home Confinement For All Eligible Offenders
As part of the First Step Act, Congress amended 18 U.S.C. § 3621(c) by directing that:
The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.
The maximum amount of time that a prisoner may spend on home confinement is ten percent of their sentence or six months, whichever is less.
(Note: It is crucially important to remember that once the First Step Act is fully implemented, prisoners will be able to spend longer than six months on home confinement through the accumulation of "time credits" for engaging in productive activities such as working or taking BOP programs. The "banking" of time credits for increased home confinement is separate from the BOP's general statutory authority to place prisoners on home confinement for ten percent of their sentence, or six months, whichever is less).
According to the new BOP operations memorandum:
The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.
The good news for prisoners and their family members is that BOP staff are now required to "refer eligible inmates for the maximum amount of time permitted under the statutory requirements." Again, that maximum amount is 10 percent of the sentence or six months, whichever is less. Individuals in federal prison who are close to release who have "lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement" should immediately request placement on home confinement for the maximum duration possible. Such requests should be directed to the inmate's case manager. Inmates in minimum or low-security institutions will most likely qualify for this benefit.
If you or your loved one want professional assistance in requesting home confinement from the BOP, the Law Office of Brandon Sample can assist you. Please contact us at 802-444-4357 or submit a contact form request here: free home confinement consultation.
BOP PROVIDES ADDITIONAL GUIDANCE ON ELDERLY & TERMINALLY ILL HOME CONFINEMENT PILOT PROGRAM
The First Step Act authorizes the BOP to release eligible elderly offenders and eligible terminally ill offenders onto home confinement as part of a pilot program that runs through 2023.
The term eligible elderly offender means an offender in the custody of the Bureau-
(1) who is not less than 60 years of age;
(2) who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16 of Title 18), sex offense (as defined in section 20911(5) of this title), offense described in section 2332b(g)(5)(B) of Title 18, or offense under chapter 37 of Title 18, and has served 2⁄3 of the term of imprisonment to which the offender was sentenced;
(3) who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in paragraph (2), above.
(4) who has not been determined by the Bureau, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in paragraph 2 above;
(5) who has not escaped, or attempted to escape, from a Bureau of Prisons institution (to include all security levels of Bureau facilities);
(6) with respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and
(7) who has been determined by the Bureau to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.
The term eligible terminally ill offender means an offender in the custody of the Bureau who—
(1) is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of Title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. § 20911(5))), offense described in section 2332b(g)(5)(B) of Title 18, United States Code, or offense under chapter 37 of Title 18, United States Code;
(2) satisfies the criteria specified in paragraphs 3 through 7 included in the Eligible Elderly Offender definition, above; and
(3) has been determined by a medical doctor approved by the Bureau, i.e. Clinical Director of the local institution, to be: in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or diagnosed with a terminal illness.
HOME CONFINEMENT PROCESS DETAILED BY BOP
According to the new Operations Memorandum, the following process will apply to elderly or terminally ill offenders qualified for release on home detention:
Offenders referred under this pilot shall be processed for home detention utilizing current RRC/Home Confinement procedures.
For Eligible Elderly Offenders, a BP-A0210, Institutional Referral for CCC Placement, will be completed. Staff should refer all inmates meeting criteria (1) through (5) in the definition of Eligible Elderly Offender, above. Reentry Services Division (RSD) staff will determine if the inmate meets criteria (6) and (7) under the definition. A clear annotation will be made on the referral packet that “This inmate is being referred for Home Confinement placement under the provisions contained in the First Step Act for placement of eligible elderly offenders and eligible terminally ill offenders.”
For Eligible Terminally Ill Offenders, to include debilitated offenders that may need placement in nursing home, intermediate care facility, or assisted living facility, institution staff will refer the inmate for a Reduction in Sentence (RIS) under Program Statement Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). If not appropriate for a RIS, the Office of General Counsel will provide RSD the RIS packet for consideration under this pilot.
Requests for participation in home detention pilot program must be routed through the inmate's case manager and unit team. Interestingly, inmates who are considered "terminally ill" will first be considered by the BOP for compassionate release before considered for release under the pilot program.
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