FILE - President Joe Biden receives his second COVID-19 booster shot in the South Court Auditorium ... [+]
Since March 2022, approximately 12,000 minimum security prisoners were allowed to serve a portion of their prison term on home confinement instead of in a federal prison as a result of The CARES Act Home Confinement Provision based on the President’s COVID-19 National Emergency Declaration. Those who went to home confinement had underlying health conditions, many elderly, who would have had an adverse reaction to COVID-19. However, this provision is set to expire on February 28, 2023 unless it is extended by President Joe Biden. If there is not extension, after February 28 the Federal Bureau of Prisons (BOP) will no longer have the authority to transfer the vulnerable prisoners to home confinement.
The National Emergency is separate from the Public Health Emergency (PHE) which was recently extended by the secretary of Health and Human Services (HHS) for another 90 days, and is now set to expire April 11,2023. The PHE does not affect the BOP’s ability as it relates to CARES Act Home Confinement.
For some background, on March 13, 2020 President Trump declared Covid-19 as a National Emergency. National Emergencies are usually declared for a one-year period, but may either be extended or declared over prior to the one-year anniversary at the President’s discretion). On March 27, 2020 Congress passed the Coronavirus Aid Relief and Economic Security Act (CARES Act), President Donald Trump signed it into law same day. Rarely has congress moved so quickly to enact such sweeping legislation.
Within the legislation, there is one small paragraph out of which this entire CARES Act Home Confinement remedy originates and it reads as follow (see page 236 in link here):
“(2) HOME CONFINEMENT AUTHORITY.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.”
On the same page at the very top of the page, the law describes the “covered emergency period”:
“(2) the term ‘‘covered emergency period’’ means the period beginning on the date on which the President declared a national emergency under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the Coronavirus Disease 2019 (COVID–19) and ending on the date that is 30 days after the date on which the national emergency declaration terminates.”
In March and April of 2020, then-Attorney General Barr sent two memos to BOP Director Michael Carvajal (HERE and HERE), indicating that an emergency conditions authorized the BOP Director to transfer at-risk prisoners to home confinement. In subsequent internal BOP memos, the criteria and eligibility were clarified and established to the standards that are still followed today. These include Minimum or Low security classifications, Minimum or Low PATTERN scores (a measure of recidivism risk and violence), no violent offenses, no serious disciplinary infractions, suffering from health conditions that are Center for Disease Control and Prevention (CDC) recognized Covid risk factors and have served either 50% of imposed term or 25% but with less than 18 months until the end of their prison term.
The program has been a success because it protected the prisoner population, the communities surrounding those prisons and it proved that prisoners could be housed in community settings safely. As of end of August of 2022, more than 11,000 federal (at risk) inmates were released to home confinement through the CARES Act, only 17 of them committed new crimes while 442 were returned to prison for violating their home confinement conditions. It ranks as one of the most successful programs implemented by the BOP.
President Biden extended the Covid National Emergency Declaration for one year on February 24, 2021, and again February 18, 2022. Now, as the pandemic seems to be subsiding, current COVID-19 variants and sub-variants appear to be rapidly spreading, more contagious and more evasive to vaccine immunity.
While there are other factors involved with the consideration of ending the National Emergency Declaration, prisoners health continues to be an issue even today. Prisoners represent a population with substantial added risk for developing COVID-19 due to multiple factors stated by the CDC, including the inability to social distance.
The federal prison population had been decreasing up to 2020 as the pandemic hit the U.S. The BOP was given authority to manage its prison populations to allow vulnerable prisoners to serve their term while on home confinement and create space in the prisons to avoid contagion. Despite the CARES Act, the BOP population has actually increased since 2022 up to 160,000 prisoners. Those with chronic medical comorbidities have compounded risk. Current data shows that amongst prison population, there is not only an increased risk of contracting COVID-19 in general, but specifically developing severe symptoms that requires hospitalizations or can lead to death. Further, the CDC stated:
“Because of the congregate living arrangements in homeless shelters and correctional and detention facilities, the risk of COVID-19 transmission is higher in these settings compared with the general population. In addition, there is a high prevalenceof certain medical conditions associated with severe COVID-19 among people experiencing homelessness and among people who are incarcerated, increasing the risk for severe outcomes from COVID-19 in these populations.”
Many in prison are hoping that President Biden extends the Covid-19 National Emergency Declaration until at least Summer 2023 to get a better picture on the trajectory of the virus. Continuing the program can only protect lives of prisoners, many of whom will be returning to society in a few years anyway.
On January 11, 2023, HHS Secretary Becerra issued a renewal of the Public Health Emergency to run for another 90 days until April 11, 2023, but as mentioned, this does not affect the National Emergency Declaration associated with CARES Act. According to Politico, Senior Biden officials are targeting an end to the emergency designation for Covid-19 as soon as the spring. The Senate past a resolution in November 2022 with some Democratic support to end the National Emergency Declaration as well.
The political pressure is building to resume life as we knew it before the pandemic. However, not all populations are equal. Prison populations suffered staggering spread during the pandemic, just as they do in cold/flu season. Despite any declaration of an end to COVID-19, the threat of the pandemic will live on a bit longer in prisons with no legal mechanism to control the prison population.
