Law360 (March 26, 2020, 9:11 PM EDT) -- Prison officials received the go-ahead to start sending some federal inmates to home confinement Thursday amid the burgeoning COVID-19 health crisis, a tool that experts worry could be used too sparingly.
At a news conference in Washington, D.C., U.S. Attorney General William Barr said he has asked the Bureau of Prisons to expand the use of home confinement, particularly for older prisoners who have served substantial portions of their sentences, do not pose a threat to society and may have underlying health conditions that make them particularly vulnerable to COVID-19.
"We are using all the tools we can to protect the inmates, and one of those tools will be to identify the prisoners who it would make more sense to allow to go home to finish their confinement," Barr said.
Barr outlined the criteria for release upon an inmate's request in a memo to Bureau of Prisons Director Michael Carvajal.
That guidance overlaps with a provision in the relief bill the U.S. House of Representatives is expected to pass Friday, which lets the BOP shift federal inmates into home confinement sooner. Current law caps home confinement at six months or 10% of a sentence, whichever is shorter. The bill removes that limit during the pandemic.
The moves come as prisons are detecting more cases of the deadly virus. As of Thursday morning, Barr said six federal inmates and four staffers had tested positive for the virus, prompting the lockdown of several facilities, including ones in New York City, Atlanta and Louisiana. Barr said he's getting reports of additional cases as well, but didn't have the details.
Criminal justice experts welcomed the idea of releasing more inmates to home confinement, but hoped the BOP would break its track record of granting release or home confinement in fewer cases than it could.
Kyle O'Dowd, associate executive director of policy for the National Association of Criminal Defense Lawyers, told Law360 that while the law and the memo are steps in the right direction, it remains to be seen how the BOP will carry them out.
"My concern is that it won't be implemented as robustly as it needs to be. There is a history of BOP being pretty conservative in their application of authorities they already have," O'Dowd said.
In the memo Barr sent to the BOP director Thursday, he outlined a number of factors prison officials should consider when deciding whether to grant an inmate's request for a transfer to home confinement.
Some of the factors include the age and vulnerability of the prisoner to COVID-19, the inmate's conduct while incarcerated, the seriousness of the crime for which they were convicted, and their score on the U.S. Department of Justice's risk and needs assessment system.
That system, known as the Prisoner Assessment Tool Targeting Estimated Risk and Needs, or PATTERN, was designed to work with the First Step Act, which created pathways for defendants to seek early release.
O'Dowd pointed out that the system has not yet been validated by an independent organization as required by the law and may be a bad fit for the coronavirus emergency.
"It was designed for a totally different purpose," O'Dowd said. The system gives prisoners a score showing their recidivism risk, which can be lowered over time via participation in programs while in prison.
Many inmates may not yet have access to such programs, or may not have served enough time to have completed them, O'Dowd said.
"If it is relied on too heavily, I think we will see just a trickle of releases rather than the more expansive application of that authority that we need under the current circumstances," he said.
Carissa Byrne Hessick, a criminal justice professor at the University of North Carolina at Chapel Hill, noted that statistics that were previously relied upon to determine a person's risk of reoffending all assume a functioning society where people are out and about.
"An awful lot of crime is crime of circumstance and opportunity, and the circumstances and opportunities are going to look so, so different now than they ordinarily do," Hessick said.
There are other factors the BOP must consider. Barr said priority should be given to prisoners in low- or medium-security facilities, and BOP officials should make an assessment of whether the prisoner would face a lower risk of infection if released to home confinement.
Those restrictions mean that white collar offenders may be more likely to make the cut. Douglas A. Berman, a professor who teaches criminal sentencing policy at Ohio State University, said the BOP generally chooses the "lowest of low-risk offenders" for release to home confinement.
"One layer of that sad reality is that often it will be only the more well-to-do, more privileged defendants that have a home that they can go into that the BOP will feel comfortable about," Berman said.
He added that avoiding the appearance of favoring the wealthy may be one reason the BOP does not grant home detention in more cases.
Barr's memo listed one more factor: All inmates selected for home confinement must first undergo a 14-day quarantine period inside prison.
"We cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-19, or put the public at risk in other ways," Barr said in the memo.
Congress was also weighing other ways to keep inmates from spreading the virus, including a provision in the relief bill allowing courts to conduct criminal hearings by video conference.
While some courts had already started to make use of the technology to handle arraignments, the law goes further in allowing for plea and sentencing proceedings to be conducted over the phone or through video when a judge determines they cannot be put off.
Defense attorneys including Jonathan Bach, president of the New York Council of Defense Lawyers, were glad to see that the bill gives defendants the final say over whether to appear remotely.
For defendants who choose to do so, Bach said there needs to be a way for the person to speak privately with counsel on a separate line. While attorneys across the country are dealing with the same issue, it's exacerbated in prison.
"The right to counsel means being able to communicate directly with your lawyer, including while important things are happening in your proceeding," Bach said. "It would be a dilution of the defendant's rights not to have that line of communication available."
The bill itself states that defendants' rights under the Sixth Amendment will not be diminished. Jeremiah Mosteller, policy counsel at the Due Process Institute, said that piece was important amid reports that the Justice Department had sought a suspension of some rights during the crisis.
"It's great to see that Congress is reaffirming that our constitutional rights still stand," he said.
--Editing by Kelly Duncan and Alanna Weissman.
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