It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country. As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered …. 126 have died. Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered.
The BOP has enacted a number of policies, phases, that were meant to address the spread of the virus. Social visits only started last week after being suspended since March 13 …. and those visits come with a number of precautions and far fewer visitors than were allowed in the past. On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond. The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement … that could include a return to prison.
After a seven-day trial in September 2018, Azam Doost was found guilty of fraud and false statements on loan applications. Doost’s company, Equity Capital Mining LLC, received a loan of $15.8 million in 2010 from the Overseas Private Investment Corp., a U.S. government agency. The jury concluded he used the funds to enrich himself. U.S. District Judge Amit P. Mehta (District of Columbia) sentenced Doost to 54 months in prison. Just 10 months into his prison term at the minimum security satellite prison at USP Atwater in California, Doost asked for compassionate release based on health reasons. On August 12, his case was heard before Judge Mehta to determine whether or not he should be released. The transcript of the arguments on August 12 revealed information about those currently on home confinement.
Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section argued against Doost’s release to Judge Amit P. Mehta for a variety of reasons but it was his comments on home confinement that were telling. According to the transcript, McCarthy made a comment regarding the possibility of Doost being considered for home confinement saying;
“So it’s my understanding that Mr. Doost is being re-evaluated once he crosses that threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP’s program [home confinement under the Barr memo], it’s a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over, unlike compassionate release, which is just a — which is a release, essentially, to home confinement.”
Neither Attorney General Barr nor anyone in President Trump’s administration has called an end to the pandemic but it will end one day … and one day may mean the return of some inmates from home confinement back to prison. While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison … or they could be asked to be immunized in order to return …. or the inmate could refuse immunization …. or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal. If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.
I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action. Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years. Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.”
As for Doost, he remains in prison. Judge Mehta denied his compassionate release on September 18.