In a Memorandum for Chief Executive Officers dated April 13, 2021, BOP issued a new policy for expanding and reviewing at-risk inmates for placement on home confinement in accordance with the CARES Act and guidance from the Attorney General. The new memorandum provides updated guidance and supersedes the memorandum dated November 16, 2020.
While the criteria for placement in home confinement is similar to the November 2020 criteria, more people will be eligible for home confinement under the new criteria. For example, there is no absolute bar to home confinement for people who fall outside of the criteria. Under the new policy, “[i]f the Warden determines there is a need to refer an inmate for placement in the community due to COVID-19 risk factors who is outside of the criteria . . . they may forward the home confinement referral to the Correctional Programs Division for further review.” Also, while the old criteria required “reviewing the inmate’s institution discipline history for the last twelve months to ensure clear conduct has been maintained,” the new policy requires “[r]eviewing the inmate's institutional discipline history for the last twelve months (Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on home confinement, if in the Warden's judgement such placement does not create an undue risk to the community).”
In a press release dated April 16, 2021, FAMM President Kevin Ring said, “We’re grateful that the new administration heeded the widespread call to make more people eligible for home confinement. The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.” But the same press release criticized the administration for not rescinding or overruling the Justice Department’s Office of Legal Counsel memo from January 15, 2020, stating that the CARES Act requires the BOP to return those serving extended home confinement back to prison when the pandemic ends.
Professor Berman has raised questions here about why the Justice Department has not done a better job publicizing the new and expanded home confinement criteria. He notes that BOP’s COVID page still says “eligibility requirements for an inmate to be considered for Home Confinement are set forth in the Attorney General's March 26 and April 3, 2020 Memoranda.” Berman concludes this is not just a lack of transparency on an important matter of public concern but misleading as to what the criteria for home confinement actually is at this time. Importantly, he notes the lack of transparency is problematic for federal judges who may be considering compassionate release motions and “who might be influenced by the hew home confinement criteria in their decision making.”