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October 16, 2020

Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?

The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined "US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once 'Pandemic Is Declared Over'."  Here are excerpts:

It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country.  As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered .... 126 have died.  Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered....

On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond.  The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement ... that could include a return to prison....

[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] ... "the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over."...

While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison ... or they could be asked to be immunized in order to return .... or the inmate could refuse immunization .... or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.  If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.

I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action.  Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years.  Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.

Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.  Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off.  But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are "lucky" enough to return to "normal" in the federal prison section of incarceration nation.

October 16, 2020 at 10:42 AM | Permalink


FAMM Kevin Ring put out a statement that he talked to the White House and this is not happening..... People should not be returned. And who knows when the pandemic will end.

Posted by: Chad Marks | Oct 16, 2020 3:55:48 PM

I wouldn't put much stock in what the "White House" says.

While one might think that BOP would defer to the DOJ/executive and Congress as they're not elected and can blame those institutions for half-baked laws.

But the longstanding fact is that BOP acts independently to undermine anything that reduces sentences. Take for example their interpretation of the good time statute.

Posted by: Fat Bastard | Oct 18, 2020 9:26:35 PM

My son was released to home confinement in September. He was sentenced to 20 years in 2012 for a white collar crime. He has underlying health conditions that prompted his transfer to home confinement. If he had been sentenced since the 2015 sentencing reforms he would have only got 108 months, or 3 months less than he has already served.He us now petrified that he will be returned to prison after being with his wife and children these past few months. Sending inmates back to jail after giving them the joy of being with family would be a level of cruelty that never should occur in a civilized society.

Posted by: Andarían Curshen | Dec 21, 2020 6:23:19 PM

Is there something we can file to be re l eased from home confinement early to begin our Probation? My release date is 2024 and it is really a lot of controlled movements making it hard to get things done to improve my life outsidethe walls.

Thank uou

Posted by: Catalina | Jan 4, 2021 9:31:03 PM

I was released from federal prison camp May 4, 2020 with a release date of 8/17/2022 at the time of my release the possibility of returning to prison after the pandemic crossed my mind and I just want to say at least I got to go home and spend some time with my family. I certainly never thought I would get time off my prison sentence to go home with my family, have a cell phone, drive my vehicle in my home town while in custody. So while you want to say it is inhuman and I get what you are saying I feel most fortunate to be out right now and if I get sent back what can I say other then at least I got to spend probably 12 months out with my family. I had 3 1/2 years in on a 7 year sentence i have 1 year off for good time. If i was sent back it would probably be 6 months depending on the end of pandemic. At least this time is time served!!!

Posted by: Sherlynn | Jan 21, 2021 3:47:06 PM

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