June 4, 2021: The Safer Detention Act, Biden's Clemency Plans and Three § 2255 Cases

In early June 2021, a bill to widen compassionate release and elderly home detention cleared the Senate Judiciary Committee, and President Biden signaled plans to use his clemency power. This roundup covers both, plus three court decisions on § 2255 motions and an answer about residency limits for people with federal sex offense convictions.

Update (October 2026): This post is from June 2021. The COVID-19 Safer Detention Act passed the Senate Judiciary Committee but never became law. Since November 1, 2023, the Sentencing Commission's compassionate release policy, USSG §1B1.13, applies to motions that prisoners file themselves. And President Biden did use his clemency power, including a December 2024 commutation for people on CARES Act home confinement.

Two issues in Washington

Two political issues drew a lot of attention that week.

The COVID-19 Safer Detention Act of 2021

This bill would have expanded compassionate release and the Elderly Home Detention program by widening who qualifies and shortening the wait to file. It would also have taken away the Attorney General's unlimited power to decide when the CARES Act home confinement power ends. It would have kept the CARES Act home confinement power in place until the later of two dates: 30 days after the Bureau of Prisons (BOP) ended its modified COVID-19 operations, or the end of the national COVID-19 emergency.

One section, "Home Detention for Certain Elderly Nonviolent Offenders," would have let qualifying prisoners ask a judge for home detention. It worked much like a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A). The judge could turn the rest of the prison term into supervised release with home confinement. Supervised release is the period of court supervision after prison. This is not a sentence "reduction" like compassionate release.

The bill also made "technical corrections" to the compassionate release law, clearing up confusion in how courts read the First Step Act's changes:

• "Old law" prisoners, whose offenses happened before November 1, 1987, would be covered.
• You would not have to finish every step of the BOP appeal process (BP-8, BP-9, and so on). You could still use the BOP appeal process, or simply wait 30 days after the warden got your request, "regardless of the status of the request." This would also apply to Elderly Home Detention motions.
• During the pandemic, the 30-day wait would drop to 10 days.
• Being 60 or older, or having a condition the CDC lists as high risk, would count as an "extraordinary and compelling reason."

In 2021, the Sentencing Commission's policy statement, USSG §1B1.13, still said that only the BOP could identify extraordinary and compelling reasons. The bill would have worked around that problem.

On May 28, 2021, the Senate Judiciary Committee announced it had voted 14 to 8 to send the bill to the full Senate. Committee Chair Sen. Durbin said:

This legislation will give judges the same authority to review BOP's decisions for the Elderly Home Detention program as they have for BOP's compassionate release decisions, and make other important changes to ensure these programs are used to safely reduce prison populations and protect inmates, prison staff, and their families.

He also noted that since the First Step Act, the BOP had opposed nearly every compassionate release request. Of nearly 31,000 requests, the BOP had approved only 36.

Biden's clemency plans

Clemency is the President's power to show mercy in a federal case. A pardon forgives a conviction, while a commutation shortens a sentence.

A May 17, 2021 New York Times story reported that clemency grants could begin around mid-2022. Presidents usually wait until the end of their term.

The story said Biden planned to focus on "entire classes of people who deserve mercy." It noted that during his 35 years in the Senate, Biden helped pass the harsh drug laws that filled the nation's prisons and led to the mass incarceration we have today. It also noted that he promised during his campaign to fix some of those long sentences.

Many advocacy groups urged him to keep that promise. In our view, this was the time for Biden to show he was sincere about undoing the harm of his past "tough on crime" stance. As one federal prisoner told us, "If I want society to give me another chance, I have to give them a reason." Clemency for many would be a good start.

Three § 2255 cases

These three short cases show how § 2255 cases can turn, and why you should always watch what you say on the jail phone. A § 2255 motion asks the judge who sentenced you to throw out or fix the sentence because something went wrong.

1. State and federal sentences. When a state court and a federal court both sentence you, do the sentences run at the same time (concurrent) or one after the other (consecutive)? Under 18 U.S.C. § 3584(a), terms imposed at different times run consecutively unless the court orders otherwise. The BOP treats them as consecutive unless the judge says otherwise. In Bistodeau v. United States, 2021 U.S. Dist. LEXIS 75845 (D. Idaho Apr. 19, 2021), the court granted § 2255 relief and vacated a sentence the BOP had run consecutive to the state sentence. The court said: "If counsel had raised the issue at any point during the sentencing hearing, it is likely that the court would have imposed a concurrent or at least partially concurrent sentence." The court found prejudice because she had spent time in state custody without being considered for credit toward her federal sentence. The sentence was vacated and she was resentenced.

2. Restitution and the guidelines. Courts usually say you cannot challenge restitution in a § 2255 motion. But in United States v. Mayhew, 2021 U.S. App. LEXIS 11248 (4th Cir. Apr. 19, 2021), the court noted an exception. If a restitution error was also built into the loss amount and raised your guidelines range, you may have the start of an ineffective assistance claim. The court said:

If Mayhew's restitution order erroneously includes amounts associated with charges of which he was not convicted, and if that restitution error was mirrored in the loss amount used to calculate Mayhew's base offense level under the Sentencing Guidelines, and if that error led to a higher guidelines range than was appropriate, then Mayhew will have at least some of the makings of an ineffective assistance claim.

3. Recorded jail calls. When the sign by the jail phone says calls are recorded, believe that the prosecutor may be listening. In United States v. Penoncello, 2021 U.S. Dist. LEXIS 67562 (D. Minn. Apr. 7, 2021), the court first granted § 2255 relief. The man said his lawyer told him he faced life either way, so he went to trial. But before judgment, the government gave the court recorded jail calls in which he told his family he faced up to 30 years. He really faced up to 30 years, and he knew it. The court called this "perjury." It took back the relief and denied his motion. The lesson is simple: don't discuss your case on recorded jail or prison phones, or in TRULINCS email (the BOP's monitored email system).

Questions and answers: the "1,000-foot rule"

Here are answers about the "1,000-foot rule" for people with federal sex offense convictions.

Q: Do all federal sex offenders have to follow a "1,000-foot rule"?

A: No. Residency limits are common for people with sex offense convictions, but they usually come from state or local law, not federal law. There is no federal statute that sets a 1,000-foot rule. But a federal judge can add a residency limit as a condition of supervised release. In fact, federal law expressly allows it.

Under 18 U.S.C. § 3563(b)(13), a judge may order that you "reside in a specified place or area, or refrain from residing in a specified place or area." That does not allow residency limits in just any case. Under 18 U.S.C. § 3583(d), a condition must be consistent with the law and involve "no greater deprivation of liberty than is reasonably necessary."

For example, in United States v. Hernandez, 510 Fed. Appx. 591 (9th Cir. 2013), the court struck down a 2,000-foot limit because it "was not apparent why [the restriction] involved no greater deprivation of liberty than is reasonably necessary" to protect the public. But in United States v. De Los Santos, 2020 U.S. App. LEXIS 33779 (9th Cir. 2020), the same court upheld a 2,000-foot limit because the defendant offered no evidence that it went too far. He argued only that his plea agreement did not call for it.

Courts also protect the right to live with family. In United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012), the court called the right to family association "a particularly significant liberty interest." It threw out a condition that kept the man from living with his children. The fact that he was not married to any of the children's mothers did not "diminish" this right, the court said.

In United States v. Rudd, 662 F.3d 1257 (9th Cir. 2011), the court collected cases raising concerns about residency limits. They can leave people in "a state of constant eviction," because a daycare could open nearby at any time. That, the court said, makes it harder to rejoin society.

Some judges simply copy the state's residency rules into the federal conditions. In United States v. Collins, 684 F.3d 873 (9th Cir. 2012), the court explained the problem: the state could change its law, or the person could move to a state without such a rule. That would leave him with an unduly harsh limit that should not apply to him.

These cases only touch on some of the problems with residency limits. Use them as a starting point for your own research.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.