Attorney General Barr Directs Bureau of Prisons to Prioritize Use of Home Confinement

The first reported case of COVID-19 within a BOP facility occurred on March 21, 2020. As of April 6, over 195 inmates and 63 BOP staff had tested positive across BOP’s 122 institutions. Those figures represent a nearly 600% increase in confirmed cases of COVID-19 over the course of just 5 days.

In an effort to prevent the coronavirus from further spreading throughout the federal prison system, on March 26th and again on April 3rd, United States Attorney General Bill Barr issued a Memorandum to the Director of the Bureau of Prisons (BOP) directing the BOP “to prioritize the use of [BOP’s] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.”

In assessing the inmates who should be prioritized for transfer to home confinement, the Attorney General identified the following non-exhaustive list of discretionary factors:

  • The age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
  • The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum-security facilities;
  • The inmate's conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
  • Inmates with a Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), a risk and needs assessment system created under the First Step Act, above the minimum score, should not receive priority treatment under this Memorandum;
  • Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
  • The inmate's crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.

The Attorney General’s broad directive has received substantial support from members of Congress, which has also taken legislative steps, through the recently enacted CARES Act, to expand BOP’s authority to “lengthen the maximum amount of time . . . authorized to place a prisoner in home confinement.” Specifically, under the CARES Act, BOP can now place a prisoner in home confinement for as long “as the Director determines appropriate,” rather than for a maximum period of six months.

Flannery | Georgalis is actively pursuing the immediate transfer to home confinement of multiple BOP inmates and will continue to provide updates to the Department of Justice and Bureau of Prisons’ response to the coronavirus pandemic.