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Home Confinement Under Cares Act Newsletter

Home Confinement Under Cares Act Newsletter 12/17/22

Here we wanted to take the time to discuss Home Confinement and why Courts lack the authority and jurisdiction to hear an appeal of the BOP denying your request for home confinement, even if it is under the CARES Act of 2020 (P. L. 116-136, Mar. 27, 2020, 134 Stat 281). There is an exception on a technical basis, and that is that courts have the authority to reduce your time to time served pursuant to a motion for compassionate release, and as a condition of your supervised release order you to be on home confinement. We will talk about this more at a later time God willing.

We have recently explained the Exhaustion requirements, and provided much needed information for anyone to file a proper administrative remedy and to properly exhaust. While doing any research please note that CCCs and RRCs can refer to the same thing. In 2006, the BOP began referring to "Community Corrections Centers" as "Residential Reentry Centers". So pay attention to the year of the case law that you are researching, and keep this in mind while you are performing your search queries.

Congress has created legislation that states: "No Citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress has also given the authority to the Attorney general and the Attorney General has delegated to the U.S. Bureau of Prisons ("BOP") to administer the federal prison system. See 18 U.S.C. 4001 and 3621 vesting control and management of federal prisons with the Attorney General and custody of those convicted to the BOP. Code of Federal Regulations 28 C.F.R. 0.96 delegates authority, functions, or duties imposed on the Attorney General regarding the treatment of prisoners to the BOP. Under 18 U.S.C. 3621(b), the BOP has the authority to decide the place of a prisoner's imprisonment. This includes home confinement, and it's essentially unchallengeable.

The BOP is permitted a wide range of discretion where courts will not interfere with their interpretation and general decision making pursuant to this statute. This is not an unfettered discretion, but is subject to its obligation to interpret the statutes reasonably. See Lopez v Davis, 531 U.S. 230, 240 (2001)(citing Chevron U.S.A. Inc. v Natural Resource Defense Council, Inc., 467 U.S. 837, 844 (1984). However, in some statutes like 18 U.S.C. 3624, awarding GCT, the Supreme Court has held that the BOP is not permitted any Chevron deference because Congress spells it out in great detail. We speak more in detail about Chevron, Skidmore, and other deference in our upcoming newsletter on 2241 petitions. However, Section 3624 in unlike 3621, because 3621 specifically has a clause that states such determination is unchallengeable. 3621(b).

Courts across our nation has systematically held that they lack any jurisdiction to hear any such petitions to order a prisoner's release into home confinement, even under the CARES Act. The CARES Act empowers the Attorney General and Bureau of Prisons Director to lengthen the amount of time a prisoner can serve his sentence on home confinement. See 18 U.S.C. 3624. Due to the CARES Act empowering the Attorney General, it does not give the judicial branch jurisdiction to grant relief. Therefore, such requests would be denied for a failure to state a claim. See Federal Rule of Civil Procedure 12(b)(6). The Bureau's decision to place a prisoner in RRC is strictly discretionary, and is unchallengeable. Congress specifically held "Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court." See 18 U.S.C. 3621(b). Therefore, Congress has spelled it out in perfect clarity that it is unchallengeable unless another provision of law provides relief. See e.g., McCarson v Reherman, C/A No. 2:20-1386-HMH, 2020 U.S. Dist. LEXIS 78067 (D.S.C. May 4, 2020)("[W]hile the Cares Act affords the BOP broad discretion during the COVID-19 pandemic, the court lacks jurisdiction to order home confinement under this provision.

The BOP has published their Operations Memorandum dated May 3, 2021 and expires on May 3, 2022 (OPI- RSD/RRM, # 001-2021). This Memorandum was approved by Assistant Director, Reentry Services Division Sonya D. Thompson. Here the Memorandum stated:

"The First Step Act of 2018 (FSA) contained additional requirements for the Bureau of Prisons (Bureau) in placing inmates in home confinement generally, and re-established and expanded a pilot program under the Second Chance Act to place elderly and terminally ill inmates in home confinement."

"The terms "home confinement" and "home detention" are used interchangeably in this Operations Memorandum."

"Institution Supplement. None Required. Should local facilities make any changes outside the required changes in the national policy or established any additional local procedures to implement the national policy, the local Union may invoke to negotiate procedures or appropriate arrangements."


Section 602 of the FSA modified 18 U.S.C. 3621(c)(1), authorizes the Bureau to maximize the amount of time spent on home confinement when possible. The provision now states, with the new FSA language in [brackets],

"Home confinement authority. -- The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. [The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph."]

"The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community as defined by individual PATTERN scores, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements."

"The statutory language will be added to Program statement [Home Confinement].

This is the end of the first section. The second section goes into "Pilot program for eligible elderly offenders and terminally ill offenders.' We will discuss this part on another day, God willing. In the mean time lets delve deeper into home confinement and what recourses we have. First all definitions generally come from a statute somewhere. The BOP quotes in their policy that it comes from the Federal Sentencing Guidelines as of April 9, 2008. However, their definition comes explicitly from Congress. See 34 U.S.C. 60541(g)(5)(B).

The question is what happens if the BOP fails to act on what it is suppose to do? Can we challenge it under an abuse of discretion? Can you file a Writ of Mandamus? Can you challenge it under any provision of 28 U.S.C. 2241 under "execution" of your sentence? For more information on this these and to begin answering these questions stay tuned for our upcoming newsletters.

Are you confused yet? Well that is exactly what the law does, and the bureau does not help in making things any clearer. This is why it is not wise to just let anyone write your motions or petitions for you. Equally the same, it is not wise for you to just let anyone perform the research for such motions.


We highly suggest that you read our newsletter on administrative remedies that we wrote on November 5, 2022 along with the two supplements (BOP Addresses 11/4 and Regional Directors 11/7) in unison with this newsletter, and our upcoming 2241 newsletter.

Therefore, you cannot challenge the BOP's decision to deny you Home Confinement if they choose to deny you under current law, and 28 U.S.C. 2241 is not available to you. The applicable statute that the Courts rely on is 18 U.S.C. 3621(b), which states "Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court." This is the current law, and this statute specifically denies district courts any subject matter jurisdiction to hear any denial of the BOP's discretion. The only way to change this is if Congress changes legislation like they did with Compassionate Release, or if Congress writes legislation in a different statute that can apply under statutory construction principles. This is so, because Congress specifically stated "Notwithstanding any other provision of law..."

However, there is potential with a new Supreme Court Case, Kisor v Wilkie, 139 S. Ct. 2400 (2019) where the Supreme Court has held that "the degree of deference to be given an agency's interpretation of its own regulations is now context dependent. This argument is not a strong argument for the reasons stated above, but although Congress left such discretion to the executive branch (i.e., BOP), the purpose of the three branches is to always have a check and balance. Stay tuned for further articles on this topic.

Written by Hamzah and Mika'eel.

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