By Godson Umejiego, Bureau Chief, The Americas

The Department of Justice has issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.

“The Justice Department is committed to protecting the safety of our communities and continuing to support the successful transition of those on home confinement back to society,” said Attorney General Merrick. B. Garland. “This final rule makes clear that the Director of the Bureau of Prisons has the discretion to ensure that those who have made rehabilitative progress and complied with the conditions of home confinement are not unnecessarily returned to prison.”

The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison. It also allows the Bureau to move individuals into Residential Reentry Centers when needed, including instances when home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.

Consistent with the final rule, the Director of the Bureau of Prisons today also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.

The final rule comes after the Attorney General issued a statement directing the Department to engage in a rulemaking process to ensure that individuals placed in home confinement under the CARES Act are not unnecessarily returned to prison. The proposed rule was published on June 21, 2022, and the comment deadline concluded on July 21, 2022. Prior to the publication of the proposed rule, the Office of Legal Counsel issued an opinion interpreting the CARES Act to give the Bureau of Prisons discretion to permit individuals on home confinement to remain there after the COVID-19 emergency has ended.

Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority. Of those, only a fraction of one percent have been returned to secure custody due to new criminal conduct.