Sentencing Law and Policy: Working through challenges facing CARES home confinement cohort

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December 6, 2021

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement. Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them. One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action. Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement. Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom. Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP. Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence. In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement. They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 at 07:01 PM | Permalink

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