Former Attorney General William Barr
Over 7,000 minimum security prisoners have been transferred from federal prisons to home confinement since the beginning of the pandemic under the CARES Act. A provision under the CARES Act allowed then-Attorney General William Barr to direct the Federal Bureau of Prisons to put in place a mechanism to move minimum security inmates to home confinement to complete their sentences. This meant that those susceptible to COVID-19 with underlying health factors could isolate at home rather than linger in highly contagious prisons. The moves would also reduce prison populations to give a little distance between prisoners.
Some of these prisoners on home confinement have years left remaining on their sentence and Office of Legal Counsel issued a ruling in December 2021 to allow these prisoners to stay there until the completion of the sentence ... no matter whether COVID-19 is still around.
COVID-19 is still around and there appears to be one variant after another. Nearly half of the BOP institutions are operating at near normal, pre-pandemic levels. Even with that, inmates who have served a certain percentage of their sentence and who also have underlying health conditions, are still being processed for home confinement. However, the CARES Act releases have slowed because the number of cases in prisons have plummeted and staff is also stressed to process prisoners because they are dealing with the First Step Act (FSA) implementation.
On January 19, 2022, the Federal Register published the final rule on FSA, which was signed into law in December 2018. Those final rules clarified the law for the BOP and left them scrambling to recalculate new sentences for thousands of prisoners. Many of those prisoners qualified for FSA credits that reduced their sentence by a year. This led to many prisoners being told to pack their bags as they were going home much sooner than expected. It has also led to a lot of anxiety in prisons as prisoners want their new release dates. Now, prisoners, who have health issues and could be transferred under the CARES Act, are being pushed to the back of the line so that overworked case managers can make provisions for thousands of prisoners who will be transitioning to post-release custody in the coming months.
One prisoner is stuck in FCI Milan, a Low security prison, who was approved for the CARES Act and should have been transferred to home confident two weeks ago. Jason Marquis Smith, an African American, is serving a 20 month sentence for bankruptcy fraud. He surrendered in January 2021 and is due to be released from custody on November 22, 2022. However, he contracted COVID-19 and was very ill according to his family when he lost nearly 100 lbs. due to his illness. Smith suffers from hypertension and, like other prisoners, has had to literally beg for compassion to be moved to home confinement. According to papers I reviewed from the family, he has been expected to arrive at a halfway house in Baltimore, MD and then quickly processed for home confinement. However, Smith is still sitting in FCI Milan waiting on paperwork where the BOP is currently operating the facility at Level Three Operations, an indication of COVID-outbreaks at the institution and in the immediate community.
I spoke to Smith’s fiancé, Melissa Malott who told me, “I want our kids to see him again and I want him to be alive when they do.”
While case managers struggle to keep up with the growing demands of their jobs, the healthcare in the BOP has been under stress as well. It is the perfect storm of poor underlying health of a prisoner combined with BOP staff shortages and poor healthcare puts people like Smith fighting for their lives as much as their freedom.
