Federal Prosecutors Have Increased Role In CARES Act Home Confinement Transfers


The Federal Bureau of Prisons (BOP) has typically enjoyed a great deal of autonomy from prosecutors in how it deals with prisoner placement. Even federal judges have little influence over how a term of custody is carried out by the BOP, though judicial recommendations, such as programming and designation, are considered by the BOP. In the end, the BOP runs the BOP.

The CARES Act allowed health-vulnerable prisoners to serve a portion of their sentence on home confinement in order to allow them to avoid the contagion of a prison environment and manage prison populations. This has been one of the few successes the BOP has enjoyed in its troubled past but the program could soon be coming to an end. However, as it comes to an end, prisoners are only now learning how much influence the BOP has delegated to federal prosecutors to determine if a prisoner is allowed on home confinement under CARES Act.

On the BOP’s website, it clearly states the requirements of CARES Act eligibility by rightly linking to the directive given to the Agency by then-Attorney William Barr. AG Barr’s memos of March 26, 2020 and April 3, 2020 provide the eligibility for CARES Act but nowhere in those memos does it state the role that federal prosecutors have in this process. The April 3 memo reads “… I directed the Bureau of Prisons to prioritize the use of home confinement as a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates, while ensuring we successfully discharge our duty to protect the public.”

The CARES Act has been a success. Almost 12,000 prisoners, most of them minimum security prisoners, have been placed on home confinement since the program’s inception. Of those, only a small number violated the terms of release and were returned to prison. Even with those releases, the BOP population has increased since the beginning of the pandemic which begs the question if the BOP released the number of prisoners that it could have.

The BOP has used prerelease custody of prisoners for decades. Under President George W. Bush’s administration, the Second Chance Act became law and, among other initiatives, allowed prisoners to serve up to one year of the prison term in prerelease custody. Prerelease custody involves prisoners living in a halfway house or on monitored home confinement. Even with that law, it was rare than any prisoner received a full year of halfway house because of issues with limited bed space at halfway houses. Under the law, prisoners can serve up to ten-percent of their sentence (capped at six months) on home confinement. Again, this has been a successful program where even prisoners who came from high security penitentiaries transition back into the community.

To be considered for CARES Act home confinement, prisoners must have a documented medical condition that is listed by the Center for Disease Control and Prevention (CDC) as a vulnerable condition for contracting a serious case of COVID-19. Once identified, the prisoner’s case manager and the warden of the institution must sign off with their input primarily focused on the person’s ability to successfully and safely integrate into the community. It was then rumored, because there was no formal documentation provided, that those who might be on extended periods of home confinement, were being steered to the U.S. Attorney’s Office (AUSA) in the district where the prisoner was prosecuted to get their position. Even when CARES Act denials were received by prisoners, they were not told the reason for the denial.

Prosecutors have a role in court proceedings, such as when prisoners apply for compassionate release. In those instances, and based on our adversarial justice system, prosecutors rarely support compassionate release cases. However, those are court proceedings where prisoners, defendants, have an opportunity to support their position and them considered by a judge who makes a decision. On December 21, 2022, an internal memorandum from BOP’s Central Office was sent to the Warden’s office at every prison in the country:

“If the Warden determines there is a need to refer an inmate for placement in the community due to factors who is outside the criteria listed above, they may forward the home confinement referral as an exception case to the Home Confinement Committee (HCC) under the Correctional Programs Division (CPD) for further review. The HCC will contact the AUSA for input regarding the request for Home Confinement. The input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement decision.”

This memorandum will be news to many prisoners who meet the requirements for CARES Act home confinement placement and also have the support of the warden at their institution. In fact, the warden and others at the institution, who are corrections professionals who have monitored the prisoner for years, often provide extensive documentation to support the request. Some prisoners work in community jobs already, having the same security classification and custody level as those already in home confinement.

“To inject prosecutors into what is clearly a BOP decision is unfair,” said a former federal prosecutor and now defense attorney who has worked with clients on such cases but wanted his/her name withheld because of ongoing discussions in a similar matter. The attorney explained that based on experience as a prosecutor that decisions on incarceration were not something even considered. “To inject the continued adversarial nature between inmates and prosecutors into what is clearly within the sole purview of a BOP decision can lead to unfair or skewed results,” the attorney said.

The attorney explained, “How and where a felon is incarcerated is an administrative decision made by the BOP, regardless of the nature of the crime. BOP has the experience and expertise to make those calls, especially after a prisoner already has been within a particular institution for some length of time. When you ask prosecutors for input, from the very office that brought the case, it is almost always going to lead to opposition to home confinement. Because of the adversarial roles that could have lasted for years, it is not typically a dispassionate opinion, even for non-violent prisoners. Home confinement should be completely within the discretion of local BOP officials familiar with the inmate. Given the number of inmates successfully released into home confinement under the CARES Act, the data supports that approach as an extremely low number of non-violent prisoners have been returned to an institution for violations over the past several years. For those with serious crimes or habitual offenders, I can see more oversight into the process, but for many minimum security offenders, it is certainly just going to lead to unnecessary denials.”

CARES Act transfers to home confinement could be coming to end soon as the Biden administration is under pressure to end the state of emergency. The inclusion of prosecutors in the decision making process of CARES Act placement will certainly slow down the number of prisoners who would otherwise quickly move to home confinement.

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