November 3, 2023–Due Process Institute and Justice Action Network urged senators to oppose S.J.Res. 47, which would nullify a specific provision of the CARES Act and return nearly 3,400 nonviolent individuals who have a minimal or low risk of recidivism and who have started the process of rebuilding their lives back to prison.
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.1 Sec. 12003 of the CARES Act provided the Bureau of Prisons with authority “to place” individuals into home confinement for the length of the “covered emergency period.” The authority to place individuals into home confinement ended 30 days after the termination of the national emergency related to COVID-19.
The specific provision of the CARES Act, 12003(b)(2), states, “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 prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.”
In December 2021, the Office of Legal Counsel (OLC) issued an opinion stating that “[n]othing 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.” In April 2023, the Department of Justice (DOJ) published the final rule relating to home confinement under the CARES Act. DOJ received only one comment against the proposed rule and 66 comments in support.
Furthermore, nullifying home confinement opportunities provided by the CARES Act is bad policy. The cost of incarcerating an individual is $120.59 per day while home confinement costs only $55.26 per day. Annualized, the total cost of incarceration for all of these individuals is $148,507,791 per year compared to $68,053,243 for home confinement. These individuals have also taken significant rehabilitative steps in home confinement, including securing employment, becoming members of church and faith groups, enrolling in college, volunteering in their communities, caring for elderly parents and children, and mending relationships with families. Finally, as of September 1, only 27 people out of 13,000 placed into home confinement have committed new crimes, a new crime rate of 0.19 percent.