Responding to the Covid-19 pandemic and the great threat it posed to incarcerated people, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Federal Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’s spread. As a result, BOP placed more than 34,000 people—including many elderly or medically vulnerable—on home confinement after March 2020. Before doing so, BOP evaluated every person and determined that none of them would pose a threat to public safety while on home confinement.
In June 2020, the BOP Director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.” But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, prisoners on home confinement must be ordered back to prison unless they are in the final few months of their sentences, even if they have been completely law-abiding. Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.
In September and October 2021, the National ACLU requested records providing information about people BOP moved to home confinement under the CARES Act, and for any DOJ and BOP policies implementing the Trump administration’s OLC Memorandum. The government failed to provide the materials by the deadline, so in November 2021 we sued, asking the court to order the Justice Department and the BOP to immediately produce the records we had requested.
On December 21, 2021, the Justice Department released a new analysis of the CARES Act, concluding that the Trump administration was wrong, and that the law did allow individuals on home confinement to remain at home until the expiration of their sentences, even if the Covid emergency ends before that. Under the government’s new interpretation of the law, the Bureau of Prisons will now develop rules governing when individuals on home confinement may be returned to custody, and we will have an opportunity to comment on those rules before they become final. While this new position did not directly affect our FOIA lawsuit, it did dramatically change the background picture.
In response to our lawsuit, we obtained a great deal of information about the people who had been placed on home confinement, including the fact that very few had re-offended while at home. That case was settled in April 2023.
In 2022, the Bureau of Prisons published proposed regulations for comment, and the ACLU filed comments—making use of the information we had learned from the lawsuit—urging BOP to allow people on home confinement to remain there for the duration of their sentences unless they re-offended. In April 2023, BOP issued its regulation, hinting that it would probably do that but reserving discretion to make any decision it felt was proper in any individual case. Meanwhile, President Biden announced that the COVID-19 emergency would end on May 11, 2023, meaning that people on home confinement could be ordered back to prison as early as June 10, 2023.
On March 2, 2023, we filed a new FOIA request seeking to learn more about the people who would face the possibility of reincarceration as of June 10 and seeking to assess the effectiveness and administration of the CARES Act home confinement program as it comes to an end. The Bureau of Prisons failed to release the requested records within the statutory time frame, so on May 10, 2023, we filed a second FOIA lawsuit to compel production of those records. After some back-and-forth over the details of the production, we were satisfied and settled the case in November 2023.
After admissions to the CARES Act home confinement program ended, we filed a third FOIA request for a final set of data. When the Bureau of Prisons (as usual) failed to provide the data promptly, we filed a third FOIA lawsuit in March 2024. By August 2024 the BOP stated it had provided a spreadsheet with all the information we had requested, but as of December 2024 we were still seeking clarification of ambiguous or conflicting data.
On December 12, 2024, President Biden commuted the sentences of all 1,499 people who were still on home confinement under the CARES Act, stating, “These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.”
We will nevertheless seek to get clarity on the final information we’re seeking in our third lawsuit, for the sake of having a clear history of the CARES Act home release program.