(Slip Opinion)
Discretion to Continue the Home-Confinement Placements of
Federal Prisoners After the COVID-19 Emergency
This Office concluded in January 2021 that, when the COVID-19 emergency ends, the
Bureau of Prisons will be required to recall all prisoners placed in extended home
confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Eco-
nomic Security Act who are not otherwise eligible for home confinement under 18
U.S.C. § 624(c)(2). Having been asked to reconsider, we now conclude that section
12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bu-
reau discretion to permit prisoners in extended home confinement to remain there.
December 21, 2021
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
In March 2020, Congress passed the Coronavirus Aid, Relief, and Eco-
nomic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (“CARES Act”),
a comprehensive response to the emergent and unprecedented COVID-19
pandemic. One of the CARES Act’s provisions, section 12003(b)(2),
addresses the threat COVID-19 poses to a densely populated prison envi-
ronment. Under certain circumstances, section 12003(b)(2) authorizes the
Director of the Bureau of Prisons to “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.” Absent the
CARES Act, the first sentence of 18 U.S.C. § 3624(c)(2) would limit the
duration of home confinement to the lesser of ten percent of a prisoner’s
sentence or six months. Section 12003(b)(2) removes those limits
“[d]uring the covered emergency period,” which is the period of the
COVID-19 national emergency plus thirty days, if the Attorney General
makes requisite findings. The CARES Act is silent as to what happens to
a prisoner who was placed in “lengthened” home confinement but whose
remaining sentence exceeds six months or ten percent when the covered
emergency period ends. In January 2021, this Office advised that the
Bureau of Prisons (“BOP”) would be required to recall all such prisoners
to correctional facilities because they are not otherwise eligible for home
confinement under 18 U.S.C. § 3624(c)(2). See Home Confinement of
Federal Prisoners After the COVID-19 Emergency, 45 Op. O.L.C. __
(Jan. 15, 2021) (“Home Confinement”).
1
45 Op. O.L.C. __ (Dec. 21, 2021)
You have asked us to reconsider our earlier opinion. In the course of
this reconsideration, BOP has provided us with additional briefing
reflecting its consistent view that the CARES Act is “most reasonably”
read not to require all prisoners to be returned to correctional facilities
at the end of the emergency period. See Memorandum for Christopher
H. Schroeder, Assistant Attorney General, Office of Legal Counsel,
from Kenneth Hyle, General Counsel, BOP, Re: Views Regarding OLC
Opinion, “Home Confinement of Federal Prisoners After the COVID-19
Emergency” dated January 15, 2021, at 2 (Dec. 10, 2021) (“BOP Memo-
randum”). BOP further explained that home-confinement decisions have
always been made on an individual basis, and that such an individualized
approach betters serves penological goals and accords with expectations
about how home confinement has been administered.
We do not lightly depart from our precedents, and we have given the
views expressed in our prior opinion careful and respectful consideration.
Based upon a thorough review of the relevant text, structure, purpose, and
legislative history—and a careful consideration of BOP’s analysis of its
own authority—we conclude that the better reading of section 12003(b)(2)
and BOP’s preexisting authorities does not require that prisoners in ex-
tended home confinement be returned en masse to correctional facilities
when the emergency period ends. Even if the statute is considered ambig-
uous, BOP’s view represents a reasonable reading that should be accorded
deference in future litigation challenging its interpretation.
I.
We begin by describing the structure and use of section 12003(b)(2),
our Office’s prior opinion, and BOP’s view of its own authority.
A.
Section 12003(b)(2) of the CARES Act reads in full:
During the covered emergency period, if the Attorney General finds
that emergency conditions will materially affect the functioning of
the Bureau, the Director of the Bureau may lengthen the maximum
amount of time for which the Director is authorized to place a pris-
oner in home confinement under the first sentence of section
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Discretion to Continue Home-Confinement Placements of Federal Prisoners
3624(c)(2) of title 18, United States Code, as the Director determines
appropriate.
18 U.S.C. § 3621 (note). The first sentence of section 3624(c)(2) pro-
vides: “The authority under this subsection may be used to place a prison-
er in home confinement for the shorter of 10 percent of the term of im-
prisonment of that prisoner or 6 months.” The effect of section
12003(b)(2) of the CARES Act is to authorize the BOP Director during
the covered emergency period to remove the time limits of section
3624(c)(2) and “lengthen” them indefinitely. The “covered emergency
period” is defined in section 12003(a)(2) as “the period beginning on the
date which the President declared a national emergency under the Nation-
al Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the Corona-
virus Disease 2019 (COVID-19) and ending on the date that is 30 days
after the date on which the national emergency declaration terminates.”
The President declared the COVID-19 pandemic a national emergency
under the National Emergencies Act on March 13, 2020, prior to enact-
ment of the CARES Act. See Declaring a National Emergency Concerning
the Novel Coronavirus Disease (COVID-19) Outbreak, Proclamation No.
9994,
85 Fed. Reg. 15,337 (Mar. 13, 2020). That emergency was extended
on February 24, 2021 and is still in effect as of the date of this opinion.
See Continuation of the National Emergency Concerning the Coronavirus
Disease 2019 (COVID-19) Pandemic,
86 Fed. Reg. 11,599 (Feb. 24,
2021). The Attorney General found that COVID-19 emergency conditions
were materially affecting the functioning of BOP on April 3, 2020. See
Memorandum for the BOP Director from the Attorney General, Re: In-
creasing Use of Home Confinement at Institutions Most Affected by
COVID-19, at 1 (Apr. 3, 2020) (“Barr Memorandum”). Thus, from that
date to the present, the BOP Director has exercised authority to “lengthen
the maximum amount of time for which the Director is authorized to place
a prisoner in home confinement” beyond the ordinary statutory maximum
of six months.
BOP has used its expanded authority to prioritize home confinement of
prisoners who have completed at least twenty-five percent of their sen-
tences and have less than eighteen months left, or who have completed at
least fifty percent of their sentences. See Memorandum for Chief Execu-
tive Officers from Andre Matevousian et al., BOP, Re: Home Confine-
ment at 2 (Apr. 13, 2021). Prisoners who do not meet BOP’s criteria, but
3
45 Op. O.L.C. __ (Dec. 21, 2021)
have particular COVID-19 risk factors, are further evaluated on a case-by-
case basis.
Id. These risk criteria are related to those suggested by the
Attorney General in a March 26, 2020 memorandum. See Memorandum
for the BOP Director from the Attorney General, Re: Prioritization of
Home Confinement As Appropriate in Response to COVID-19 Pandemic
at 1–2 (Mar. 26, 2020).
Since late March 2020 and as of December 6, 2021, BOP has placed
35,277 inmates in home confinement through use of all its authorities.
BOP Memorandum at 6. As of that same date, 4,879 prisoners were in
extended home confinement under the CARES Act, and at least 2,8301 of
this group would have to be returned to a correctional facility under the
view expressed in our prior opinion if the emergency were to end imme-
diately.
Id.
B.
Our prior conclusion that all home-confinement prisoners who did not
fall within section 3624(c)(2)’s time limits must be returned to a correc-
tional facility was based on a number of arguments. First, we reasoned
that because the purpose of the CARES Act was to provide “a variety of
forms of temporary emergency relief to address a once-in-a-century
global pandemic” (emphasis added), the better reading of the statute is the
one that confines its effects to the period of the pandemic emergency.
Home Confinement, 45 Op. O.L.C. __, at *5. We concluded that it would
be unprecedented to allow section 3624(c)(2) home-confinement place-
ments to last years or even decades, and thus that Congress would not
have “fundamentally altered the structure of home confinement beyond
the emergency circumstances” without clearly saying so.
Id. at *5–6. We
also concluded that reading the statute to end extended placements with
the emergency was a better fit with the goals of the CARES Act than a
reading that would allow BOP discretion to create home-confinement
placements of any length. Our understanding of the purpose of the
1 This is the number of prisoners who have more than one year remaining on their sen-
tences. The actual number of people whose remaining terms would exceed the time limits
contained in section 3624(c)(2) would be greater. As of November 5, 2021, 289 prisoners
on CARES Act home confinement have been returned to prison for violating their condi-
tions of release or committing new crimes. BOP Memorandum at 6.
4
Discretion to Continue Home-Confinement Placements of Federal Prisoners
CARES Act, and its implications for section 12003(b)(2), was reinforced
by a comparison with other sections of the act which have effects only for
a limited time.
Id. (citing the temporary nature of sections 1109, 1113,
1114, 1102(a)(2), 1108(c)(1), portions of section 2102, and sections
3201–3226).
We also found support for our prior conclusion in the fact that the
CARES Act home-confinement authority expires “30 days after the date
on which the national emergency declaration terminates.” CARES Act
§ 12003(a)(2) (emphasis added); see Home Confinement, 45 Op. O.L.C.
__, at *6–7. We reasoned that this 30-day grace period is best read as
evidence of Congress’s intent to have BOP return prisoners to correctional
facilities: “If Congress had expected that the termination of the Director’s
expanded authority would have no operational effects on prisoners al-
ready in home confinement, then his placement authority could simply
have terminated with the emergency.” Home Confinement, 45 Op. O.L.C.
__, at *6–7.
Finally, we argued that the use of the verb “to place” supported our
reading. See id. at *7. BOP frequently interacts with prisoners in a home-
confinement placement, including through daily monitoring, weekly in-
person meetings, drug and alcohol testing, and counseling, and retains
discretion to reconsider home confinement at any time. We concluded
that “to place” in the context of BOP’s home-confinement authority was
best read as connoting an ongoing action that required ongoing legal
authority, and not just authority to create an initial home-confinement
placement. Once section 12003(b)(2) lapsed, we reasoned, BOP lacked
legal authority to continue, in effect, to “place” prisoners in home con-
finement who had been initially put there during the covered emergency
period but whose remaining sentences exceeded the time limits of section
3624(c)(2). We concluded therefore that BOP must return such prisoners
to correctional facilities.
C.
BOP was of the view at the time of our earlier opinion, and remains of
the view today, that section 12003(b)(2) is “most reasonably interpreted”
to give the Bureau discretion over which inmates to return to facilities
and which to leave in home confinement at the end of the emergency
period. BOP Memorandum at 2; see also E-mail for the Office of Legal
5
45 Op. O.L.C. __ (Dec. 21, 2021)
Counsel from Kenneth Hyle, General Counsel, BOP, Re: Draft OLC
opinion on the CARES Act home confinement authority (Jan. 14, 2021,
2:46 PM). BOP emphasizes that, textually, the authority granted by sec-
tion 12003(b)(2) that expires at the end of the covered emergency period
is the authority of BOP to lengthen terms of home confinement, not the
authority to let prisoners remain in home confinement: “Once a decision
has been made to ‘lengthen’ a particular inmate’s home confinement term,
no further action (i.e., bringing the inmate back into secure custody from
home confinement) is compelled or contemplated by the statute.” BOP
Memorandum at 3. BOP explains that additional authority for its ongoing
monitoring of prisoners in home confinement, including additional au-
thority to return a prisoner to a facility, comes from its general statutory
authorities, including 18 U.S.C. § 3621(a), which commits prisoners “to
the custody of the Bureau of Prisons until the expiration of the term
imposed.” See id. at 2–3.
BOP further notes that extended periods of home confinement are no
longer unprecedented. Id. at 3. Specifically, the Second Chance Act of
2007, Pub. L. No. 110-199, 122 Stat. 657 (2008), created a pilot program
for home confinement for certain elderly inmates that does not incorporate
the timeframes of section 3624(c)(2). The First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194, reauthorized and broadened this program by
lowering the qualifying age from 65 to 60, including terminally ill offend-
ers as well as elderly ones, and reducing the proportion of the sentence the
prisoner must serve in a facility from three-quarters to two-thirds. This
program can result in periods of home confinement considerably longer
than those that can occur under section 3624(c)(2).2 The First Step Act’s
emphasis on home confinement is also evident in its direction that BOP
“shall, to the extent practicable, place prisoners with lower risk levels and
lower needs on home confinement for the maximum amount of time
permitted.” First Step Act § 602, 132 Stat. at 5238 (codified at 18 U.S.C.
§ 3624(c)(2)). Moreover, BOP has informed us that it would not ordinari-
ly return a prisoner from home confinement to secure custody without a
2 The First Step Act also created a separate, expanded home-confinement program by
which low-risk offenders can earn time credits for earlier transfer to pre-release custody,
including home confinement, without regard to the time limits of section 3624(c)(2). See
18 U.S.C. § 3624(g).
6
Discretion to Continue Home-Confinement Placements of Federal Prisoners
disciplinary reason, and that the “widespread return of prisoners without a
disciplinary reason would be unprecedented.” BOP Memorandum at 5.
BOP cites this backdrop—the increased availability of longer-term
home confinement to fit the penological needs of prisoners—as support
for its conclusion that section 12003(b)(2) gives the Bureau discretion to
continue home-confinement placements lawfully made during the covered
emergency period. BOP argues that Congress’s expansion of home con-
finement in recent years demonstrates that “the use of incarceration is
being re-evaluated as compared to the societal benefits of non-custodial
rehabilitative programs.” Id. at 5. According to BOP, reading section
12003(b)(2) to confer discretion in returning prisoners to secure custody
will let BOP determine “whether there is [an] actual penological reason
for doing so.” Id. at 5. BOP also underscores the vital importance of
bedspace in a correctional system and notes that exercising discretion will
allow the Bureau to “manage its resources in an efficient manner that
considers both public safety and the needs of the individual offender.” Id.
at 4. If we agree with BOP’s view of the statute, BOP plans to develop
criteria to evaluate which prisoners should remain in home confinement
and which should be returned to facilities for sound penological reasons.
Id. at 5. Exercising discretion to return compliant prisoners from home
confinement would still be a departure from BOP’s ordinary practice. In
these unique circumstances, however, BOP is of the view that individual
determinations, based on criteria set by the agency, are most appropriate
for balancing the Bureau’s numerous penological goals and needs, as well
as the needs of the prisoner. Id.
II.
We conclude that the better reading of section 12003(b)(2) and BOP’s
other authorities is that BOP has discretion to permit prisoners in extend-
ed home confinement to remain there.
Importantly, neither section 12003(b)(2) nor any other relevant statuto-
ry authorities expressly requires or specifically addresses the possible
return of prisoners from home confinement. The single change that provi-
sion makes in BOP’s home-confinement authority is to “lengthen” the
duration for which prisoners can be placed in home confinement under
section 3624(c)(2).
7
45 Op. O.L.C. __ (Dec. 21, 2021)
“Lengthen” refers to a discrete act: once something is permissibly
lengthened, no further or ongoing action is typically required. Here, once
BOP has determined to lengthen the time remaining in a prisoner’s sen-
tence and assigned that prisoner to home confinement, the permissible
time period to be in home confinement has been extended and no further
action under the CARES Act is needed or contemplated. The discrete
nature of “lengthen” in this context appears consistent with how the term
is used throughout the code—such as agency decisions to “lengthen” a
period of time required for promotion or “lengthen” the schedule for a
certain environmental review. See, e.g., 10 U.S.C. § 14303(c) (“Authority
to lengthen minimum period in grade.”); 23 U.S.C. § 139(g)(1)(D)(i)
(“The lead agency may . . . lengthen a schedule established under subpar-
agraph (B) for good cause.”). Nothing in the CARES Act or any other
statute convinces us that the expiration of the power to lengthen home-
confinement placements necessarily operates to shorten home-
confinement placements that were already lawfully lengthened.
Our prior opinion concluded that, once the emergency period ends, the
absence of ongoing section 12003(b)(2) authority had to have such an
effect. The opinion reasoned that the decision to “place” someone in
home confinement requires “ongoing action”—for instance in the form
of “daily monitoring, weekly in-person meetings, drug and alcohol test-
ing, counseling, and more”—and therefore requires “continuing legal
authority,” which we thought was absent once section 12003(b)(2) ex-
pired. Home Confinement, 45 Op. O.L.C. __, at *7. For the same reason,
although the verb “to place” may connote either an initial decision
(“put”) or an ongoing process (“station”), our opinion concluded that it
was used only in the latter, ongoing sense, and so the loss of authority to
place a prisoner in home confinement entailed the loss of authority to
keep him there. See 11 Oxford English Dictionary 941 (2d ed. 1989)
(defining “place” as “[t]o put or set in a particular place, position, or
situation; to station”); Home Confinement, 45 Op. O.L.C. __, at *7.
Section 12003(b)(2), however, specifically addresses only the lengthen-
ing of the period of home confinement. The legal authority to “place”
instead derives from section 3624(c)(2) (“[t]he authority under this sub-
section may be used to place a prisoner in home confinement”), and that
power continues to exist after section 12003(b)(2) ceases to be operative.
Section 12003(b)(2) removes the time limits from section 3624(c)(2) and
8
Discretion to Continue Home-Confinement Placements of Federal Prisoners
authorizes the use of that ongoing authority for a lengthened period.
Appropriately focusing on the verb “lengthen” diminishes the importance
of the sense in which the verb “place” is used, because even if “place” is
meant to imply a continuing process, the authority for the entirety of that
extended placement was created when its duration was lawfully “length-
ened.”
Separately, under section 3621(a), BOP has additional authority to con-
tinue extended home-confinement placements and their associated “ongo-
ing administrative duties.” Home Confinement, 45 Op. O.L.C. __, at *7.
Section 3621(a) commits prisoners “to the custody of the Bureau of Pris-
ons until the expiration of the term imposed,” and provides general au-
thority for BOP to continue managing and administering the placements
of prisoners in that custody. See BOP Memorandum at 2.3 Once BOP has
lawfully lengthened the time a prisoner can be in home confinement using
its section 12003(b)(2) authority, the custodial authority of section
3621(a) allows a home-confinement prisoner to remain where he or she
has been lawfully placed. See United States v. Wilson,
503 U.S. 329, 335
(1992) (citing section 3621(a) for the proposition that “the Attorney
General, through the BOP, has the responsibility for administering the
sentence”); United States v. Ko,
739 F.3d 558, 561 (10th Cir. 2014) (stat-
ing that prisoners in home confinement under section 3624(c)(2) are still
“serving a ‘term of imprisonment’” and that “[w]hen read together, these
statutes [sections 3621 and 3624] plainly indicate that a person is in the
BOP’s ‘custody’ while serving the remainder of a sentence in home
confinement”). Similarly, either section 3621(a) or section 3621(b), which
charges BOP with designating the “place of the prisoner’s imprisonment,”
could provide any necessary authority for BOP to revoke home-
confinement placements.
A comparison of sections 12003(b)(2) and 12003(c)(1) reinforces our
conclusion that the expiration of the emergency period affects only BOP’s
authority to lengthen terms of home confinement, not its authority to
3 We continue to believe that section 3621(a) does not provide authority to initially put
prisoners in home confinement, because that reading would render many other provisions
providing such authority (including section 3624(c)(2) and section 12003(b)(2)) surplus-
age. Home Confinement, 45 Op. O.L.C.__, at *14–15. Nor does BOP believe that section
3621(a) provides such initial placement authority.
Id. at *10–11.
9
45 Op. O.L.C. __ (Dec. 21, 2021)
continue placements already made. The full text of section 12003(c)(1)
reads as follows:
During the covered emergency period, if the Attorney General finds
that emergency conditions will materially affect the functioning of
the Bureau, the Director of the Bureau shall promulgate rules regard-
ing the ability of inmates to conduct visitation through video tele-
conferencing and telephonically, free of charge to inmates, during
the covered emergency period.
Section 12003(c)(1) uses the phrase “during the covered emergency
period” twice, each with a different reference. The first use of “during the
covered emergency period” defines when the Director may promulgate
rules about videoconferencing, similar to the way the phrase is used in
section 12003(b)(2). But the second use of the phrase refers to the “ability
of inmates to conduct visitation through video teleconferencing and
telephonically,” thereby showing that this benefit was intended to end
with the end of the covered emergency period. By contrast, section
12003(b)(2) uses the phrase “during the covered emergency period” just
once—stating that “[d]uring the covered emergency period . . . the Direc-
tor of the Bureau may lengthen the maximum amount of time for which
the Director is authorized to place a prisoner in home confinement.” This
single use of “during the covered emergency period” makes clear that the
Director’s lengthening may occur only during the covered emergency
period, but the provision is silent on whether home confinement may
outlast that period. The absence of an end date for the benefit conferred
by section 12003(b)(2)—even though the very next subsection includes
one—leads to the reasonable inference that Congress intended to permit
the extended home-confinement placements granted under section
12003(b)(2) to outlast the emergency period. “Where Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclusion.” Salinas v.
U.S. R.R. Retirement Bd.,
141 S. Ct. 691, 698 (2021) (quoting Russello v.
United States,
464 U.S. 16, 23 (1983)).
The reasonable inference that Congress intended to leave the length of
home-confinement placements to BOP’s discretion is further suggested by
the language with which Congress ended section 12003(b)(2)—not a
10
Discretion to Continue Home-Confinement Placements of Federal Prisoners
restrictive restatement of the covered emergency period, but an explicit
delegation of authority: “as the Director determines appropriate.” As this
Office and the federal courts have long recognized, such phrasing—which
leaves the appropriateness of decisions to lengthen home confinement in
the Director’s hands—is a particularly broad textual commitment of
authority. See The Twenty-Second Decennial Census,
18 Op. O.L.C. 184,
196 (1994) (describing a provision allowing a Census of “such form and
content as [the Director] may determine,” 13 U.S.C. § 141(a), as part of a
“broad delegation of power” to the Census Bureau); Dep’t of Com. v. New
York,
139 S. Ct. 2551, 2568 (2019) (noting that 13 U.S.C. § 141(a) “con-
fers broad authority”); see also Franks v. Bowman Transp. Co.,
424 U.S.
747, 763 (1976); Nat’l Small Shipments Traffic Conf., Inc. v. Civ. Aero-
nautics Bd.,
618 F.2d 819, 827 (D.C. Cir. 1980). The language of section
12003(b)(2) “fairly exudes deference to the Director.” Cf. Webster v. Doe,
486 U.S. 592, 600 (1988).
The structure and purpose of the CARES Act and section 12003(b)(2),
moreover, reinforce our interpretation. We no longer believe that the
inclusion of the 30-day grace period in the “covered emergency period”
necessarily suggests that Congress intended BOP to return prisoners to
facilities. Home Confinement, 45 Op. O.L.C. __, at *6–7. There are other
plausible explanations for providing such a period. For example, the grace
period could have been included to finish processing home-confinement
placements that were planned or in progress—and to which BOP had
already devoted resources—since home-confinement placements require a
complex assessment of factors and take some time to implement. See Barr
Memorandum at 3; see also BOP Memorandum at 4–5. Or it could have
been included to give BOP time to reorient its resources: regardless of
whether individuals in home confinement are recalled, the end of the
emergency period would cause an increase in the prison population be-
cause new prisoners would continue to come into the prison system but no
new extended home-confinement placements would occur. The 30-day
period would thus allow BOP time to prepare for this change. See BOP
Memorandum at 4. More generally, Congress may simply have included
this grace period for administrative convenience: to account for unfore-
seeable operational difficulties the end of the emergency period would
cause for BOP.
11
45 Op. O.L.C. __ (Dec. 21, 2021)
While there is no legislative history suggesting why the 30-day expira-
tion period was included, it would be somewhat odd if Congress thought
that prisoners in extended home confinement must be returned to a facility
and included the expiration period for that reason, but failed to state in the
text that prisoners must be so returned. Additionally, the 30-day expira-
tion provision also applies to section 12003(c)(1), which provides for
video- and tele-conferencing free of charge to inmates during the emer-
gency period. There is no obvious reason—other than administrative
convenience—why video- and tele-conferencing would need a 30-day
wind-up period. The inclusion of that same covered period in section
12003(c)(1) undercuts our prior opinion’s reliance on those 30 days.
Nor does the temporary nature of other programs created by the
CARES Act mean that extended home-confinement placements must
end with the covered emergency period. See Home Confinement, 45
Op. O.L.C. __, at *5–6. No one disputes that BOP’s authority to lengthen
the maximum period of home confinement for prisoners ends when the
covered emergency period ends; in that sense the home-confinement
provision is unambiguously temporary. The fact that the expanded place-
ment authority is temporary, however, does not entail that the conse-
quences of such placements need also be temporary. Indeed, the conse-
quences of other CARES Act authorities will extend past the emergency
as well: loans granted under the Paycheck Protection Program created by
sections 1102 and 1109, for instance, were only available for a limited
period, but once awarded these loans will mature over time and thus have
long-term consequences.
Of course, the overall purpose of the CARES Act was to provide tem-
porary relief for problems related to the pandemic, and so reading a provi-
sion to have lingering effects once the pandemic has ended may at first
seem anomalous. See Home Confinement, 45 Op. O.L.C. __, at *5–6. But
Congress enacted section 12003(b)(2) in the context of the heightened
pandemic-related risks the federal prison system was experiencing, be-
cause the close quarters and dense populations of inmates and guards
created an environment conducive to the spread of the virus. From the
vantagepoint of Congress’s enacting prospective relief, it would have
been rational to conclude that the pandemic risks in prison facilities might
linger well beyond the official end of the pandemic emergency.
12
Discretion to Continue Home-Confinement Placements of Federal Prisoners
In the end, we find little interpretive guidance in the purpose of section
12003(b)(2). Nor does the legislative history provide any guidance on
what Congress intended—if, indeed, it thought about the consequences of
the end of the emergency period at all. There is no legislative history
reflecting what members of Congress thought would happen at the end of
the emergency period. Nor does the relevant Attorney General memoran-
dum from that period (the Barr Memorandum)—issued just a week after
the CARES Act was signed into law—contain any mention of the pro-
spect of a mass return to prison facilities. This is an especially significant
omission in light of the fact that more individually dramatic measures,
such as compassionate release, were part of the national discussion, and
reflects the fact that few officials gave serious consideration to the pro-
spect of a large-scale return at the time the CARES Act was passed.4
4 For a contemporaneous discussion of compassionate release, see U.S. Sentencing
Comm’n, Compassionate Release Data Report: Calendar Years 2020 to 2021 (Sept.
2021). We have located several post-enactment press releases from individual senators
immediately after passage of the CARES Act—which we do not consider part of the
legislative history, see Bruesewitz v. Wyeth LLC,
562 U.S. 223, 242 (2011)—that are at
odds with the view that the BOP Director may reasonably continue certain home-
confinement placements after the emergency period. See, e.g., Press Release, Durbin,
Duckworth Outline Illinois Priorities Included in Senate-Passed Bipartisan COVID-19
Pandemic Relief Bill (Mar. 26, 2020), https://perma.cc/5N5W-SR8W (reflecting the view
that the CARES Act “gives BOP discretion to extend pre-release home confinement from
a maximum of 6 months to a maximum of 12 months”). Some of these positions were
subsequently abandoned. See Letter for Merrick Garland, Attorney General, from Richard
J. Durbin & Cory A. Booker, U.S. Senate (Apr. 23, 2021), https://perma.cc/2WM8-E866.
These brief post-enactment statements did not explain their reasoning for implying a
12-month cap, but may have been based on 18 U.S.C. § 3624(c)(1), which limits pre-
release custody generally, rather than home confinement specifically, to a maximum of
twelve months. But such a limit on section 12003(b)(2) is not reflected anywhere in the
legislative record, discussed in our Office’s prior opinion, or mentioned in any agency
statements. More importantly, restricting section 12003(b)(2) to the final year of a
prisoner’s sentence would dramatically curtail BOP’s ability to use home confinement to
reduce the prison population and prevent the pandemic’s spread—an implausible result
that appears fundamentally at odds with section 12003(b)(2)’s central goal and BOP’s
public actions since March 2020. See King v. Burwell,
576 U.S. 473, 492 (2015); see also
N.Y. State Dep’t of Soc. Servs. v. Dublino,
413 U.S. 405, 419–20 (1973) (“We cannot
interpret federal statutes to negate their own stated purposes.”). Under such an interpreta-
tion, nearly half of the approximately 7,800 inmates currently in home confinement under
the CARES Act would need to be returned to prison immediately, notwithstanding the
ongoing pandemic emergency.
13
45 Op. O.L.C. __ (Dec. 21, 2021)
Moreover, focusing solely on the purpose of the CARES Act would
overlook the broader purpose of home confinement, which is to “afford
that prisoner a reasonable opportunity to adjust to and prepare for the
reentry of that prisoner into the community.” 18 U.S.C. § 3624(c)(1).
BOP’s program statement on home confinement describes it as “a time of
testing and an opportunity for inmates to assume increasing levels of
personal responsibility while providing sufficient restriction to promote
community safety and continue the sanction of the sentence.” BOP Pro-
gram Statement, CCD No. 7320.01 (Sept. 6, 1995) (updated and reissued
Dec. 15, 2017). For these reasons, home confinement is generally sup-
posed to occur at the end of a prisoner’s sentence as a terminal placement.
See 18 U.S.C. § 3624(c)(1) (stating that, to the extent practicable, prison-
ers should be placed in prerelease custody during “the final months” of
their term of imprisonment); BOP Memorandum at 5 (“The benefits to
home confinement from a penological standpoint is as one of the last steps
of a reentry program” that “provide[s] transition back into the community
with support, resources, and supervision from the agency.”). In some
cases, of course, BOP might reasonably conclude that penological goals
would be best served by returning a prisoner in home confinement to a
prison facility. Yet it would run counter to home confinement’s penologi-
cal purpose to require BOP, without ability to consider individual needs
and equities, to pull prisoners who had been succeeding in home confine-
ment back into the more restrictive prison environment. See BOP Memo-
randum at 5 (“Under regular circumstances, inmates who have made this
transition to home confinement would not be returned to a secured facili-
ty, unless there was a disciplinary reason for doing so, as the benefit of
home confinement is to adjust to life back in the community, and there-
fore removal from the community would obviously frustrate that goal.”).
As noted above, such a blanket recall would be unprecedented. By con-
trast, long-term home confinement—while not the norm—is becoming
less unusual, given the measures Congress has adopted authorizing longer
home-confinement placements for elderly and terminally ill offenders. See
supra Part I.C.; see also 34 U.S.C. § 60541.
Our prior opinion argued that if Congress had “fundamentally altered
the structure of home confinement” in a way that might permit multi-year
home-confinement placements, it would have been more explicit about
doing so. Home Confinement, 45 Op. O.L.C. __, at *6 (citing Whitman v.
14
Discretion to Continue Home-Confinement Placements of Federal Prisoners
Am Trucking Ass’ns,
531 U.S. 457, 468 (2001), for the proposition that
Congress “does not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions”). But we are less convinced that
multi-year placements would entail a fundamental alteration of home
confinement, and it equally could be contended that, if Congress had
intended an unprecedented and penologically unjustified mass recall of
prisoners from home confinement, it would have said so.
III.
For the reasons described in Part II, we conclude that our prior opinion
failed to address important and persuasive counterarguments. We now
believe that a better reading of section 12003(b)(2) grants BOP discretion
to permit prisoners in extended home confinement to remain there. Even
if the statute were considered ambiguous, BOP’s view represents a rea-
sonable reading that should be accorded deference in future litigation
challenging its interpretation. It accords with section 12003(b)(2)’s text,
structure, and purpose, and it also makes eminent sense in light of the
penological goals of home confinement. BOP’s interpretation avoids
requiring the agency to disrupt the community connections these prisoners
have developed in aid of their eventual reentry. Instead, it allows the
agency to use its expertise to recall prisoners only where penologically
justified, and avoids a blanket, one-size-fits-all policy. We thus depart
from the view of our January 2021 opinion concerning section
12003(b)(2).5
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
5
We do not address any issues related to the January 2021 opinion’s conclusions con-
cerning BOP’s discretion under 18 U.S.C. § 3621(b). See Home Confinement, 45 Op.
O.L.C. __, at *7–14.
15
