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April 20, 2021

Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?

The question in the title of this post is what I keep wondering as days pass since I saw this FAMM press release from last Friday and yet still fail to see any updated official information from the Department of Justice or the the Bureau of Prisons.  The FAMM press release, dated April 16, 2021, starts this way (my emphasis added):

FAMM President Kevin Ring released the following statement in response to the Department of Justice (DOJ) releasing a memo expanding the criteria for home confinement.

“We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement,” Ring said. “The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.

“We are extremely disappointed, however, that the administration has not rescinded or overruled the legal memo that could force people on home confinement back to prison when the pandemic subsides.  Thousands of families are rightfully anxious that they will be separated again soon.  We worry that today’s announcement will result in more families being in the same boat.”

I understand why the FAMM release expresses concern that the Biden Administration has not yet addressed the worrisome OLC memo discussed in this post that would require returning some folks to prison post-pandemic.  But, in the short term, I am quite concerned that an important memorandum expanding the criteria for home confinement seemingly has not yet been made widely publicly available.

Notably, on this DOJ coronavirus page, there is no link to or any reference to a new DOJ memo on home confinement criteria.  And this BOP COVID page still states expressly that "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."  Given these webpages, one might say that DOJ and BOP are now not just guilty of a lack of transparency on an important matter of public concern, but they are actually providing misleading information about what the current home confinement criteria are right now.

Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making.  And, most fundamentally, it is problematic for the American people who have every right to expect and demand that consequential criminal justice decisions by government actors will be transparent and clear, not hidden and opaque.

UPDATE:  The folks at FAMM have posted here what looks like the full text of the new "Updated Home Confinement Guidance under the CARES Act  [as of] April 2021"  Here is how this document gets started:

On Wednesday, April 14, 2021, FAMM received the text of a memo outlining new criteria for home confinement under the CARES Act.  As of this time, the memo has not been shared online by the BOP or Justice Department, but a BOP spokesperson confirmed to The Marshall Project that this memo was sent to all BOP facilities.

Frustratingly, it is hard to tell from the text of this still-officially-secret DOJ memo just how the criterial for home confinement has been changed and how many current federal prisoners might be impacted by the change.  Moreover, the memo also says that it "provides updated guidance and direction and supercedes the memorandum dated November 16, 2020," but I am not sure that November 16 memo was ever made public.  Sigh. 

April 20, 2021 at 09:49 PM | Permalink


Thank you for this recent posting regarding the lack of transparency with the Department of Justice and the Bureau of prisons.as a semi retired defense attorney I have been witness to a lack of transparency with this agency specifically the BOP for quite some time. I think that oversight is definitely needed. I’ve watched at least three of the last hearings with the Bureau of prisons to with Michael CarbijalAnd one with his predecessor. Carbijal is especially opaque failing to get congressmen and senators the information that he should have readily available and then failing to provide that information some as long as over a year later. I encourage Congress to demand an oversight board for the Bureau of prisons. that bureau is much too large to allow unchecked

Posted by: Ed Dougherty | Apr 21, 2021 4:12:16 AM

Please let us know if you know where attorneys can access the memo

Posted by: Tom C | Apr 21, 2021 11:24:15 AM

Found this on twitter, not sure it is legit. -- https://www.documentcloud.org/documents/20619081-updated-home-confinement-criteria-april-2021

Posted by: Tom C | Apr 21, 2021 11:28:34 AM

Tom C., that was a good find you made. I was able to click on the document (upper right corner), get a PDF version and print it.

Posted by: Jim Gormley | Apr 21, 2021 12:27:31 PM

The November 16 memo is available on the BOP website:


Posted by: Tom Root | Apr 21, 2021 10:41:28 PM

You can get the current Memorandum that is dated April 13, 2021, from this link


Published on: Wednesday, April 21, 2021
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.

Posted by: Connie Reese | Apr 22, 2021 3:27:27 PM

No difference what's so ever except for 1 tiny thing, ridiculous, pathetic at best

Posted by: Randy Cowan | Apr 24, 2021 5:48:57 AM

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