Home Confinement of Federal Prisoners After the COVID-19 Emergency ( 2021 )

(Slip Opinion)
Home Confinement of Federal Prisoners
After the COVID-19 Emergency
The Coronavirus Aid, Relief, and Economic Security Act authorizes the Director of the
Bureau of Prisons to place prisoners in home confinement only during the Act’s cov-
ered emergency period and when the Attorney General finds that the emergency condi-
tions are materially affecting BOP’s functioning. Should that period end, or should the
Attorney General revoke the finding, the Bureau would be required to recall the pris-
oners to correctional facilities unless they are otherwise eligible for home confinement
under 18 U.S.C. § 3624(c)(2).
BOP’s authority under 18 U.S.C. § 3621(a) and (b) does not provide an alternative basis
for authorizing continued home confinement for prisoners ineligible for continuing
home confinement under section 3624(c)(2).
January 15, 2021
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
FEDERAL BUREAU OF PRISONS
The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory
authority to place a prisoner serving a term in a federal prison in home
confinement for the concluding portion of his sentence. See 18 U.S.C.
§ 3624(c)(2). In connection with the COVID-19 pandemic, Congress
expanded the authority of the Director of BOP to place federal prison-
ers in home confinement earlier than that statutory period. See Corona-
virus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136,
§ 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”). The question
is what happens to these prisoners once the pandemic emergency ends.
At that time, some inmates will have completed their sentences or be
sufficiently close to the end to be eligible for home confinement. Other
inmates, however, may have a substantial time to go before becoming
eligible. Although the pandemic emergency remains ongoing, the issue
arises because BOP must plan for an eventuality where it might need to
return a significant number of prisoners to correctional facilities.
We conclude that the CARES Act authorizes the Director of BOP to
place prisoners in home confinement only during the statute’s covered
emergency period and when the Attorney General finds that the emer-
gency conditions are materially affecting BOP’s functioning. See id.Should that period end, or should the Attorney General revoke the find-
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45 Op. O.L.C. __ (Jan. 15, 2021)
ing, the Bureau would be required to recall the prisoners to correctional
facilities unless they are otherwise eligible for home confinement under
18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment
authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES
Act authority to authorize home confinement under the Act beyond the
limits of section 3624(c)(2).
I.
Section 3621(a) of title 18 of the United States Code instructs BOP to
maintain custody of a person sentenced to a term of imprisonment until
“the expiration of the term imposed, or until earlier released for satisfacto-
ry behavior pursuant to the provisions of section 3624.” Section 3621(b)
assigns BOP the responsibility of “designat[ing] the place of the prison-
er’s imprisonment” at a “facility,” subject to several considerations such
as bed availability, the security designation of the prisoner, and proximity
to the prisoner’s residence. Section 3621(b) also authorizes the Bureau “at
any time,” subject to those same factors, to “direct the transfer of a pris-
oner from one penal or correctional facility to another.”
Section 3624(c) governs both home confinement and other forms of
what the statute calls “prerelease custody”—lower-security conditions of
confinement that help prepare a prisoner for eventual release. Section
3624(c)(1) provides that BOP “shall, to the extent practicable, ensure that
a prisoner serving a term of imprisonment spends a portion of the final
months of that term (not to exceed 12 months), under conditions that will
afford that prisoner a reasonable opportunity to adjust to and prepare for
the reentry of that prisoner into the community,” such as a community
correctional facility. Section 3624(c)(2) then states that BOP “may” use
its prerelease custody authority to place a prisoner in home confinement
“for the shorter of 10 percent of the term of imprisonment of that prisoner
or 6 months.” Section 3624(c)(2) thus constrains BOP’s confinement
authority by limiting a prisoner’s time in home confinement to no more
than six of the final months of a prisoner’s term.
Recognizing that the COVID-19 pandemic was having a substantial
effect on federal correctional institutions, Congress in section 12003(b)(2)
of the CARES Act expanded BOP’s preexisting discretion to employ
home confinement. Section 12003(b)(2) provides that
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
[d]uring the covered emergency period, if the Attorney General
finds that emergency conditions will materially affect the function-
ing of the Bureau, the Director of the Bureau may lengthen the
maximum amount of time for which the Director is authorized to
place a prisoner in home confinement under the first sentence of
section 3624(c)(2) of title 18, United States Code, as the Director
determines appropriate.
The “‘covered emergency period’” starts on “the date on which the
President declared a national emergency under the National Emergencies
Act with respect to the Coronavirus Disease 2019 (COVID-19)” and ends
“on the date that is 30 days after the date on which the national emergen-
cy declaration terminates.” CARES Act § 12003(a)(2), 134 Stat. at 516
(citation omitted).
The President declared the COVID-19 pandemic a national emergen-
cy on March 13, 2020, two weeks before the enactment of the CARES
Act. See Declaring a National Emergency Concerning the Novel Coro-
navirus Disease (COVID-19) Outbreak, Proc. No. 9994, 85 Fed. Reg.
15,337 (Mar. 18, 2020). On April 3, 2020, the Attorney General found
that COVID-19 emergency conditions were “materially affecting the
functioning of the Bureau of Prisons.” Memorandum for the Director of
the Bureau of Prisons from the Attorney General, Re: Increasing Use of
Home Confinement at Institutions Most Affected by COVID-19 at 1
(Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_
confinement_april3.pdf (“Attorney General Memorandum”).
You have advised us that following that determination, the BOP Direc-
tor exercised his CARES Act authority by transferring thousands of
federal prisoners into home confinement. As of December 2020, BOP had
transferred 18,112 inmates to home confinement since enactment of the
authority, out of a federal prison population of approximately 150,000
inmates. See Statement of Michael D. Carvajal, Director, BOP, Before the
Subcommittee on Crime, Terrorism, and Homeland Security, U.S. House
Judiciary Committee 2, 6 (Dec. 2, 2020) (“Carvajal Testimony”). We
understand that approximately 40 percent of those prisoners would not
have been eligible for such transfers absent the emergency authority. 1
1 See E-mail for Jennifer Mascott & Conor Clarke, Office of Legal Counsel, from
Kenneth P. Hyle, BOP, Re: Draft OLC Opinion on the CARES Act Home Confinement
Authority (Jan. 14, 2021, 2:46 PM).
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45 Op. O.L.C. __ (Jan. 15, 2021)
BOP has indicated that it will continue to conduct individualized assess-
ments to make home confinement placements for the duration of the
pandemic. Id. at 6. These transfers have carried out the Attorney Gen-
eral’s instructions to, where possible, move vulnerable inmates with
Centers for Disease Control-established COVID-19 risk factors out of
institutions with significant infection rates, following a 14-day quarantine
period to prevent transmission during transfer. Attorney General Memo-
randum at 1–2.
The question now is what will happen when BOP’s emergency au-
thority under section 12003(b)(2) of the CARES Act ends. That issue
has important practical consequences because many of these thousands
of prisoners are currently in home confinement earlier than section
3624(c)(2) would permit. You have explained that BOP has always had
the discretion to return inmates to BOP facilities upon, or even prior to,
the termination of the covered pandemic period. But you have suggested
that BOP might continue home confinement placements afterwards, on the
theory that BOP properly exercised its authority to “lengthen the maxi-
mum amount of time” for home confinement during the emergency and
that the consequences of those decisions might continue, even though the
authority to make the decision in the first instance has lapsed. See Bureau
of Prisons, Home Confinement Under the CARES Act at 2 (Nov. 20,
2020).
We agree that the CARES Act does not alter BOP’s discretion to return
prisoners to facilities either during the covered period or right when it
ends. But once that authority expires, we believe that BOP must respect
the time limits under section 3624(c)(2) for all federal prisoners, includ-
ing those who had been transferred to home confinement prior to the final
months of their term under the special CARES Act placement authority.
II.
Section 12003(b)(2) allows the Director, “[d]uring” the covered emer-
gency period and based on a finding from the Attorney General, to
“lengthen the maximum amount of time for which [he] is authorized to
place a prisoner in home confinement.” Once the Director’s authority in
section 12003(b)(2) expires, then so too does his authority to keep in-
mates in home confinement under this provision.
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
Section 12003(b)(2) is the sole source of the Director’s “authori[ty]” to
“lengthen the maximum amount of time” that applies to the sentence of an
inmate subject to home confinement “under the first sentence of section
3624(c)(2).” Section 3624(c)(2), in turn, limits a term of home confine-
ment to “the shorter of 10 percent of the term of imprisonment of that
prisoner or 6 months.” In connection with the pandemic, Congress con-
ferred upon the Director broad authority to disregard the ordinarily strict
time limitations of section 3624(c)(2) in favor of any length that he “de-
termines appropriate.” The scope of that authority, however, is keyed to,
and circumscribed by, the emergency nature of the circumstances that
Congress addressed both in this particular provision and in provisions
throughout the bill.
Accordingly, we think that once the CARES Act authority evaporates,
the maximum term of home confinement must govern. See 62 Cases,
More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S.
593, 600 (1951) (“[W]e must take care not to extend the scope of the
statute beyond the point where Congress indicated it would stop.”); see
also Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
140 S. Ct. 2367, 2380 (2020) (“Our analysis begins and ends with the
text.” (internal quotation marks omitted)); Barnhart v. Peabody Coal Co.,
537 U.S. 149, 174–75 (2003) (Scalia, J., dissenting) (“When a power is
conferred for a limited time, the automatic consequence of the expiration
of that time is the expiration of the power.”). Once the CARES Act au-
thority expires, BOP’s obligation to respect section 3624(c)(2)’s time
limit applies to all prisoners remaining in BOP custody, including those
who had been placed early in home confinement in response to the
COVID-19 emergency.
This reading of section 12003(b)(2) is consistent with the structure of
the CARES Act, which provided a variety of forms of temporary emer-
gency relief to address a once-in-a-century global pandemic. See, e.g.,
CARES Act § 1109 (providing loan programs during the national emer-
gency); id. § 1113 (authorizing bankruptcy relief to address the emergen-
cy); id. § 1114 (providing emergency rulemaking authority to the Admin-
istrator of the Small Business Administration); id. § 1102(a)(2) (ending
the “covered period” for paycheck protection on June 30, 2020); id.
§ 1108(c)(1) (authorizing the waiver, for a 3-month period starting on the
date of enactment, of requirements that minority business centers provide
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45 Op. O.L.C. __ (Jan. 15, 2021)
matching funds when receiving certain federal grants if the center is
unable to raise the funds or has lost revenue); id. § 2102(b), (c)(2) (creat-
ing a new unemployment assistance benefit, for people otherwise ineligi-
ble for such compensation, that terminates after 39 weeks); id. §§ 3201–
3226 (covering health care provisions during the national emergency).
The Director has used the particularized pandemic-related emergency
authority in the CARES Act to put thousands of prisoners in home con-
finement who were not otherwise eligible, including inmates whose terms
of imprisonment might stretch far beyond the pandemic—long after the
emergency conditions that prompted the granting of this authority will
have ceased, and well beyond the default time limits for home confine-
ment specified in section 3624(c)(2). If Congress had fundamentally
altered the structure of home confinement beyond the emergency circum-
stance that prompted the enactment of section 12003(b)(2), then it would
have said so. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)
(“In ascertaining the plain meaning of [a] statute, the court must look to
the particular statutory language at issue, as well as the language and
design of the statute as a whole.”); cf. Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 468 (2001) (recognizing that Congress “does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisions”).
This interpretation finds further support from section 12003’s expira-
tion provision, which specifies that the Director’s expanded discretion
over home confinement ends “on the date that is 30 days after the date on
which the national emergency declaration terminates” (emphasis added).
If Congress had expected that the termination of the Director’s expanded
authority would have no operational effects on prisoners already in home
confinement, then his placement authority could simply have terminated
with the emergency. See, e.g., Murphy v. Smith, 138 S. Ct. 784, 789
(2018) (noting that “surrounding statutory structure” may reinforce a
conclusion about an individual provision); cf. Wis. Cent. Ltd. v. United
States, 138 S. Ct. 2067, 2074 (2018) (finding confirmation for the Court’s
interpretive analysis where an alternative reading would make aspects of
the relevant statutory and regulatory scheme unnecessary). We think that
this 30-day period suggests that Congress had recognized that the termina-
tion of the emergency would have operational consequences and thus
gave BOP 30 days to engage in the logistical operations needed to remove
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
prisoners from home confinement who were not otherwise eligible to
serve there.
We do not believe that an alternative interpretation of section
12003(b)(2)—one that reads the decision “to place a prisoner in home
confinement” as though it were a discrete action requiring statutory au-
thority only at the time that it is made—would be tenable. The decision
“to place” a prisoner in home confinement is not a permanent, final deci-
sion, and BOP has the discretion to reconsider home confinement at any
point. That decision requires ongoing action, and therefore continuing
legal authority. Cf. CARES Act § 12003(b)(2), 134 Stat. at 516 (defining
the emergency authority as authority to “lengthen the maximum amount
of time” for the Director’s exercise of home confinement authority—
action involving an ongoing time period (emphasis added)); 8 Oxford
English Dictionary 825 (2d ed. 1989) (“lengthen”: “[t]o make longer,
increase the length of ”). BOP and the probation system, further, have a
continuing relationship with prisoners in prerelease custody and home
confinement. Under section 3624(c)(3) of title 18, for instance, the United
States probation system “shall, to the extent practicable, offer assistance”
to prisoners in home confinement. BOP’s home confinement program
guidance further contemplates daily monitoring, weekly in-person meet-
ings, drug and alcohol testing, counseling, and more. See generally BOP
Program Statement, CCD No. 7320.01 (Sept. 6, 1995) (updated and
reissued Dec. 15, 2017) (“Home Confinement Program Statement”).
These ongoing administrative duties make clear that the decision to place
a prisoner in “home confinement” is not a one-time event and that BOP
retains the discretion to reassess the prisoner’s status at any time during
home confinement. The time limits of section 3624(c)(2) therefore apply.
III.
Separate from the CARES Act, you have suggested that BOP may have
discretion under 18 U.S.C. § 3621(a) and (b) to keep prisoners in home
confinement who had been properly placed there during the emergency
period. 2 Indeed, the home confinement statute makes clear that nothing in
it “shall be construed to limit or restrict” the Director’s authority “under
2 See E-mail for Liam P. Hardy et al., Office of Legal Counsel, from Kenneth Hyle,
BOP, Re: 2002 OLC Memorandum on BOP Discretion (Dec. 7, 2020, 9:27 AM).
7
45 Op. O.L.C. __ (Jan. 15, 2021)
section 3621.” Id. § 3624(c)(4). But we do not agree that BOP’s authority
under section 3621(a) and (b) provides additional discretionary authority
to address home confinement in the first place.
A.
Section 3621 states, in relevant part, that persons sentenced to impris-
onment “shall be committed to the custody of the Bureau of Prisons
until the expiration of the term imposed.” Id. § 3621(a). It then provides
standards by which the Bureau “shall designate the place of the prison-
er’s imprisonment”—but only at a “penal or correctional facility.” Id.
§ 3621(b). The text indicates that BOP is not free under this provision to
designate a “place” of any type as the site of the prisoner’s confinement,
but rather contemplates that it will be at a “facility.” See id. (“The Bureau
of Prisons shall designate the place of the prisoner’s imprisonment, and
shall . . . place the prisoner in a facility.”); id. (“In designating the place
of imprisonment or making transfers under this subsection, . . . [t]he
Bureau may at any time . . . direct the transfer of a prisoner from one
penal or correctional facility to another.”); id. § 3622 (specifying when a
prisoner may be temporarily released from the “place of his imprison-
ment” before being “return[ed] to the same or another facility”). We do
not believe that home confinement constitutes a “facility” within the
meaning of section 3621(b).
The statute does not define “facility,” but the ordinary meaning of the
term is not readily understood to mean a “home.” Compare Webster’s
Third New International Dictionary 812–13 (1961) (defining “facility” as
“something” like “a hospital,” that is “built . . . or established to perform
some particular function or to serve or facilitate some particular end”),
with id. at 1082 (defining “home” as “the house and grounds . . . habitual-
ly occupied by a family”); compare also The Random House Dictionary
of the English Language 690 (2d. ed. 1987) (defining “facility” as “some-
thing designed, built, installed, etc., to serve a specific function affording
a convenience or service,” such as “transportation facilities” or “educa-
tional facilities” or “a new research facility”), with id. at 913 (defining
“home” as “a house, apartment, or other shelter that is the usual residence
of a person”). Other provisions in title 18 speak of “facility” in a manner
inconsistent with thinking the term would include a “home.” Section 3585
of title 18, for instance, provides that “a term of imprisonment” com-
8
Home Confinement of Federal Prisoners After the COVID-19 Emergency
mences on a date connected to the prisoner’s transportation to “the official
detention facility at which the sentence is to be served.” Section 3624
itself reinforces the distinction between a “home” and a “facility”: section
3624(c)(1) refers to a “community correctional facility” (emphasis add-
ed)—a reference followed immediately by subsection (c)(2)’s separate
provision governing “home confinement.” See also 21st Century Depart-
ment of Justice Appropriations Authorization Act, Pub. L. No. 107-273,
div. B, § 2411(a)(1), 116 Stat. 1758, 1799 (2002) (distinguishing between
“community corrections facilities” and “home confinement”). And section
3621(b) contrasts a prisoner’s “residence” with his “place of imprison-
ment” and “facility,” requiring BOP to ensure to the extent practicable
that the imprisonment facility is within 500 miles of the prisoner’s prima-
ry residence. This distinction would be anomalous if a “facility” could,
under the discretion of that provision, include one’s ordinary residence or
home.
This reading accords with the few district court decisions that have sim-
ilarly observed that BOP’s discretion under section 3621(b) to select a
“penal or correctional facility” does not extend to home confinement
under the current version of 18 U.S.C. § 3624(c)(2). 3 Numerous courts
have similarly read section 3624(c)(2) to impose a firm limit on BOP’s
home confinement discretion. 4 We have not identified any case conclud-
ing otherwise.
3 See, e.g., United States v. Orozco, No. 3:15-CR-00038-RCJ-WGC, 2020 WL
3047471, at *1 n.1 (D. Nev. June 8, 2020) (“While Congress ordered the BOP to
consider court recommendations about the most appropriate ‘penal or correctional
facility’ in § 3621(b), it failed to include ‘home confinement’ in this provision.”); Toole
v. Krueger, No. 12-CV-2445-PJS-TNL, 2012 WL 6621681, at *3 (D. Minn. Dec. 19,
2012) (“It may be true that an inmate’s home is not a ‘penal or correctional facility’
within the meaning of § 3621(b).”).
4 See Bonneau v. Salazar, 754 F. App’x 624, 624 (9th Cir. 2019) (“18 U.S.C.
§ 3624(c)(2) barred the BOP from placing him in home confinement for more than six
months or 10 percent of the underlying sentence, whichever is less.”); Guess v. Werlinger,
421 F. App’x 215, 217 (3d Cir. 2011) (“The 6 months of home confinement is not addi-
tional to the 12 months of prerelease custody. . . . We also reject Guess’s contention that
the scheduling of the prerelease hearing at 17 to 19 months before a projected release date
runs afoul of 18 U.S.C. § 3621(b).”). Our reading of the statute also is consistent with
multiple district court decisions to have considered the issue. See, e.g., Lyttle v. Inch, No.
2:17-CV-00153-JMS-DLP, 2018 WL 1410192, at *2 (S.D. Ind. Mar. 21, 2018) (“[T]his
statute gives the BOP discretion to place Mr. Lyttle in a community correctional facility
9
45 Op. O.L.C. __ (Jan. 15, 2021)
Our interpretation is also consistent with a related body of precedent
interpreting section 3585(b) of title 18, which mandates that “[a] defend-
ant . . . be given credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date the sentence
commences.” The Supreme Court has held that a defendant must be in a
“penal or correctional facility,” as used in section 3621(b), to receive
credit for “official detention.” See Reno v. Koray, 515 U.S. 50, 58 (1995).
Lower courts have applied Koray to conclude that “home detention” does
not constitute time in a “penal or correctional facility” for purposes of this
provision. See, e.g., United States v. Piper, 525 F. App’x 205, 209–10 (3d
Cir. 2013) (“Although he was confined at home, he was not detained in a
penal or correctional facility.”); United States v. Polydore, 493 F. App’x
496, 506 (5th Cir. 2012) (Owen, J., concurring) (“Although confinement
in a community center was at issue in Koray, and the statute under scruti-
ny was § 3585, the rationale of Koray applies with equal force to home
detention.”). We think that section 3624(c)(2) should be given a similar
reading.
Finally, our reading is consistent with BOP’s own regulations and
program guidance. A 2008 interim rule (while not currently in force)
stated that “[i]nmates may be designated to home detention as a condi-
tion of pre-release custody and programming during the final months of
the inmate’s term of imprisonment, not to exceed the shorter of ten
percent of the inmate’s term of imprisonment or six months.” 28 C.F.R.
§ 570.21(b). 5 BOP’s own home confinement program guidance emphasiz-
for no more than 12 months and in home confinement for no more than 6 months. Any
determination must be made in a manner consistent with the five factors in § 3621(b).”);
United States v. Miranda, No. 3:16-CR-00250-GPC, 2017 WL 3219941, at *3 n.2 (S.D.
Cal. July 28, 2017) (“Although Miranda has asked the Court to grant him three months in
home confinement, the Court notes that the maximum time allowable in home confine-
ment is ‘the shorter of 10 percent of the term of imprisonment of that prisoner or 6
months.’” (citation omitted)).
5 This rule was initially promulgated in 2008 as an interim final rule. See Pre-Release
Community Confinement, 73 Fed. Reg. 62,440, 62,443 (Oct. 21, 2008). While this text
remains codified, see 28 C.F.R. § 570.21(b) (2020), the interim rule was vacated on
procedural grounds for failure to follow Administrative Procedure Act notice-and-
comment procedures and was not finalized. See Sacora v. Thomas, No. CV 08-578-MA,
Doc. No. 57 at 22–25, 34 (D. Or. June 16, 2010) (vacating the rule for failure to establish
good cause to forgo notice and comment); see also Sacora v. Thomas, 628 F.3d 1059,
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
es that it “does not have statutory authority to designate a home confine-
ment program for an inmate at the beginning of his or her sentence,”
given section 3621(b)’s requirement that the Bureau “designate any avail-
able penal or correctional facility as the place of a prisoner’s imprison-
ment.” Home Confinement Program Statement at 1; see also id. att. B,
at 2 (“Inmates on home confinement shall return to the facility at least
twice each week.”); BOP, Legal Resource Guide to the Federal Bureau of
Prisons 46 (2019) (“Inmates may participate in home confinement only
during the last 10% of their sentence or 6 months prior to their Good
Conduct Release date, whichever is less.”). We think these statements
clearly rule out an interpretation that section 3621(a) and (b) provide BOP
with freestanding authority to permit home confinement of any duration.
B.
It might be argued, however, that this conclusion conflicts with court
decisions holding that, under a prior version of the statute, BOP’s authori-
ty under section 3621(b) included discretionary authority to order an
inmate into prerelease custody separate from the timing provisions of
section 3624(c). See Rodriguez v. Smith, 541 F.3d 1180, 1184–85 (9th
Cir. 2008); Wedelstedt v. Wiley, 477 F.3d 1160, 1166–67 (10th Cir. 2007);
Goldings v. Winn, 383 F.3d 17, 28–29 (1st Cir. 2004); Elwood v. Jeter,
386 F.3d 842, 847 (8th Cir. 2004). These decisions were contrary to an
opinion this Office issued in 2002, which had concluded that the discre-
tionary authority in section 3621(b) did not give BOP such authority. See
Memorandum for Larry D. Thompson, Deputy Attorney General, from M.
Edward Whelan III, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Bureau of Prisons Practice of Placing in Communi-
ty Confinement Certain Offenders Who Have Received Sentences of
Imprisonment at 6–7 (Dec. 13, 2002) (“Community Confinement”).
We need not revisit this debate because the reasoning of these court
decisions has been overtaken by subsequent amendments to the statute—
in particular, by amendments made to the statute in the Second Chance
1065 n.6 (9th Cir. 2010) (noting that the vacatur order was not appealed). BOP proposed
an identical rule for notice and comment in 2011, see Pre-Release Community Confine-
ment, 76 Fed. Reg. 58,197 (Sept. 20, 2011), but no final rule was promulgated.
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45 Op. O.L.C. __ (Jan. 15, 2021)
Act of 2007, Pub. L. 110-199, 122 Stat. 657 (2008). 6 These amendments
substantially altered the framework for prerelease custody and for home
confinement. Among other things, the Act created a separate subsection
addressing home confinement, with an independent limitation requiring
that this form of prerelease authority only “be used to place a prisoner in
home confinement for the shorter of 10 percent of the term of imprison-
ment of that prisoner or 6 months.” 7 18 U.S.C. § 3624(c)(2); Pub. L. 110-
199, § 251(a), 122 Stat. at 693. By so doing, the amended statute distin-
guished between prerelease custody more generally, including in a “com-
munity correctional facility,” and prerelease custody in “home confine-
ment.”
These amendments mooted the disagreement between our 2002 Com-
munity Confinement opinion and the several circuit court decisions that
addressed BOP’s discretion to place prisoners in community correctional
facilities. In 2004, the First and Eighth Circuits reasoned that the pre-
Second Chance Act time limit—“not to exceed six months, of the last 10
per centum of the term”—described only the period for which BOP was
required to consider the use of community corrections, not the maximum
period for which it was authorized to use community corrections. Gold-
ings, 383 F.3d at 26 (making the distinction “between a qualified obliga-
6 Between 1990 and 2008, 18 U.S.C. § 3624(c) read:
Pre-release custody.—The Bureau of Prisons shall, to the extent practicable, assure
that a prisoner serving a term of imprisonment spends a reasonable part, not to ex-
ceed six months, of the last 10 per centum of the term to be served under conditions
that will afford the prisoner a reasonable opportunity to adjust to and prepare for
the prisoner’s re-entry into the community. The authority provided by this subsec-
tion may be used to place a prisoner in home confinement. The United States Pro-
bation System shall, to the extent practicable, offer assistance to a prisoner during
such pre-release custody.
BOP’s current home confinement program statement continues to refer to this pre-2008
text of 28 U.S.C. § 3624(c). See Home Confinement Program Statement at 1.
7 We note that section 602 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.
5194, revised 18 U.S.C. § 3624(c)(2) by adding a second sentence that is not relevant
here: “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.” Id. § 602, 132 Stat. at 5238. The First Step Act also
created a separate home confinement program for low-risk offenders—now codified at 18
U.S.C. § 3624(g)—that the CARES Act does not mention and that we do not consider
here. Id. § 102(b), 132 Stat. at 5210–13.
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
tion imposed on the BOP and a grant of discretionary authority to it”);
Elwood, 386 F.3d at 847 (relying on Goldings to reach a similar conclu-
sion). 8 Therefore, those courts held that BOP retained its discretionary
authority to extend prerelease custody to community correctional facilities
beyond the specific time window in then-section 3624(c). But the Second
Chance Act amended the statute to include in section 3624(c)(2) an ex-
press limit on any such discretionary authority as it applies to home
confinement: BOP “may” (not “shall”) use home confinement “for the
shorter of 10 percent of the term of imprisonment of that prisoner or 6
months.”
The Second Chance Act also distinguished prerelease custody in a
community correctional facility from home confinement. The circuit court
decisions involved inmates who wished to be transferred to community
correctional facilities. See Goldings, 383 F.3d at 18, 28; Rodriguez, 541
F.3d at 1181 & n.1; Wedelstedt, 477 F.3d at 1161, 1166; Elwood, 386
F.3d at 843. In that context, these courts reasoned that “[a] community
correction center is a correctional facility and therefore may serve as a
prisoner’s place of imprisonment.” Goldings, 383 F.3d at 28; see Elwood,
386 F.3d at 846 (noting that a community correctional facility is a “penal
or correctional facility”). But prior to the Second Chance Act, it was not
clear whether or how such reasoning extended to home confinement: the
pre-Second Chance Act version of the statute did not distinguish between
“home confinement” and other forms of prerelease custody; all such
authorities were included. 9 But the Second Chance Act sets off “home
8 The Ninth and Tenth Circuits similarly concluded that the pre-Second Chance Act
statutory scheme did not cap the maximum time frame authorized for home confinement,
finding unlawful BOP regulations that categorically excluded prerelease custody outside
of the section 3624 time limits. See Rodriguez, 541 F.3d at 1184–87; Wedelstedt, 477 F.3d
at 1166–67.
9 Goldings itself acknowledged, but left unresolved, the question of whether a “home”
could constitute a “penal or correctional facility” and thus a “place of imprisonment.” See
383 F.3d at 28 (internal quotation marks omitted); see also United States v. Cintrón-
Fernández, 356 F.3d 340, 346 n.6 (1st Cir. 2004) (“[W]e need not reach the issue of
whether Cintron-Fernandez’s home could ever qualify as a ‘penal or correctional facility’
under 18 U.S.C. § 3621(b).”). Prior to enactment of the Second Chance Act, however,
several district courts relied on the reasoning of Goldings and Elwood to suggest that
BOP’s section 3621(b) authority encompassed home confinement. See, e.g., Goebel v.
Morrison, No. 06-168-JRT-SRN, 2006 WL 1314322, at *2 (D. Minn. May 12, 2006)
(ordering the government “to immediately reconsider its decision as to whether petitioner
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45 Op. O.L.C. __ (Jan. 15, 2021)
confinement” in a statutory subsection separate from the subsection
generally authorizing prelease custody, including custody at a “communi-
ty correctional facility.” The decisions interpreting the earlier version of
the statute therefore do not undermine our conclusion that home confine-
ment does not involve confinement at a “facility” for purposes of section
3621(b).
If BOP had general discretion to place prisoners in home confinement
under section 3621, then many other statutory provisions would have
been unnecessary. Most notably, there would have been no need for
Congress to carefully “lengthen the maximum” home confinement time
in the CARES Act—surplusage that would deprive the text of meaning.
See United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992) (“[A]
statute must, if possible, be construed in such fashion that every word has
some operative effect.”); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 174 (2012) (explaining the canon
that no word or provision “should needlessly be given an interpretation
that causes it to . . . have no consequence” (citing United States v. Butler,
297 U.S. 1, 65 (1936)). There would have been no point to Congress
separately addressing, and imposing time constraints on, home confine-
ment authority through the Second Chance Act, because BOP would have
already possessed a home confinement discretion free from any such
limits under section 3621. 10 And there would have been no reason for
Congress, in a separate prerelease custody program for low-risk offend-
ers authorized by the First Step Act of 2018, to mention that the “time
should be assigned to a Community Corrections Center or home confinement, in light of
the criteria set forth in 18 U.S.C. § 3621(b)”); Young v. Caraway, No. CIV. 05-1476-JNE-
JJG, 2006 WL 562143, at *9 (D. Minn. Mar. 7, 2006) (finding “that § 3621(b) requires
the BOP to consider the five factors listed in the statute when deciding whether, and
when, a prisoner should be assigned to a CCC or home confinement arrangement”). But
for reasons we have explained, we think that the subsequent Second Chance Act provi-
sions eliminate that reading as a plausible interpretation of sections 3621 and 3624.
10 In enacting the Second Chance Act of 2007, Congress created a new section
3624(c)(2), consisting of just the first sentence of the current provision, that imposed a
time limit on the duration of home confinement as a form of prerelease custody. See Pub.
L. 110-199, § 251(a), 122 Stat. at 692–93. The current second sentence of subsection
3624(c)(2), requiring the Bureau to place lower-risk prisoners in home confinement “to
the extent practicable” was enacted approximately ten years later, in the First Step Act of
2018. See Pub. L. 115-391, § 602, 132 Stat. 5194, 5238.
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Home Confinement of Federal Prisoners After the COVID-19 Emergency
limits” of section 3624(c) “shall not apply to prerelease custody” under
the newly created subsection 3624(g). First Step Act of 2018, Pub. L.
115-391, § 102(b), 132 Stat. 5194, 5208–13 (quoted language codified at
18 U.S.C. § 3621(g)(10)). The Supreme Court has noted “time and time
again” that it is “obliged to give effect, if possible, to every word Con-
gress used.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632
(2018) (internal quotation marks and citation omitted). We cannot adopt
an interpretation of the text that would result in so much surplusage across
so many different sections of the Code.
IV.
Because the CARES Act authorizes the Director of BOP to place
prisoners in home confinement only while the authority of section
12003(b)(2) remains in effect, BOP must recall prisoners in home
confinement to correctional facilities once that authority expires, unless
they would otherwise be eligible for home confinement under section
3624(c)(2). BOP’s authority under 18 U.S.C. § 3621 does not provide an
alternative basis for authorizing continued home confinement for prison-
ers ineligible for home confinement under section 3624(c).
JENNIFER L. MASCOTT
Deputy Assistant Attorney General
Office of Legal Counsel
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