BOP Gets Grilled On Home Confinement – LISA Newsletter for June 8, 2020

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LAWMAKERS’ QUESTIONS ABOUT BOP HOME CONFINEMENT ARE GETTING SHARPER

Congressional lawmakers last week started raising questions about the Federal Bureau of Prisons’ release of high-profile inmates, and began calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system.

hotseat200608Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and BOP Director Michael Carvajal over the Bureau’s use of its CARES Act home confinement authority. The CARES Act permits the BOP essentially to designate an inmate’s home as his or her prison, and to send the inmate home for as much of his or her remaining sentence as the BOP wishes. This authority lasts as long as there is a national emergency declared by the President (read “pandemic”).

Citing the release of former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen to home confinement, the Harris/Jeffries letter said “these examples make clear that there are two systems of justice in our country – one for President Trump and his associates, and another for everyone else. These examples also heighten our concern about the politicization of the Department of Justice.”

The letter demanded to know whether the White House played any role in the release of Manafort or Cohen, and wanted a list of “each official at DOJ and BOP who considered and/or cleared Paul Manafort’s transfer to home confinement.” The lawmakers wrote, “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons.”

Regular readers of this blog may be forgiven for thinking that the writer is no fan of the ham-handed management at the BOP, but despite this, the Cohen release has gotten a bad rap. The BOP announced that its standards for release of vulnerable inmates included a requirement that they have completed either 50% of their sentences, or 25% of their sentences and have fewer than 18 months remaining.

You may recall that Cohen (like many inmates) was identified as being a home confinement candidate in April. Then he was taken off the list, only to be relisted in late May. When that happened, I did the math. He had done well less than half his sentence, but he had done more than 25%, and he was within 18 months of release as of May 22, 2021. Type his name into the BOP website, and see whether I am wrong.

lovelost200608Of course, last time I checked, Trump is no Cohen fan. Why Harris and Jeffries would think the White House threw him a life ring on early release boggles the mind.  Manafort – who had years to go on his sentence and was well under 50% done – is another matter.

The BOP has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. However, as AP reported last Monday, “the response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.”

At a Senate Judiciary Committee hearing last Tuesday, Carvajal was grilled by senators over whether minority inmates and those with fewer connections were receiving similar treatment to Manafort in being sent home.

Carvajal said the BOP has transferred more than 3,500 inmates to home confinement since the CARES Act passed. In response to questioning, he explained the BOP began by identifying 27,000 inmates with at least one COVID-19 risk factor. Only about 4,000 of those qualified for home confinement under Attorney General William Barr’s March and April memos. When the BOP decided to include those with only minor disciplinary problems in the last year, the number rose to 5,300.

allen200608Sen. Cory Booker (D-New Jersey) demanded a breakdown of the demographics of people BOP has approved for transfer to home confinement, saying he is concerned racial bias might be impacting the decisions, including in the application of PATTERN. Carvajal did not provide the demographic data at the hearing, but he assured Booker with the sincerity of a bureaucrat that the BOP administration is taking that concern seriously, and that home confinement approval data tracks with the demographics of the federal prison population.

We’ll see if any data are released to support that platitude.

Letter to William Barr from Kamala Harris and Hakeem Jeffries, June 1, 2020

AP, Lawmakers question federal prisons’ home confinement rules (June 1)

Courthouse News, Senators Grill Feds on Inmate Protections During Pandemic (June 2)

– Thomas L. Root

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