Addressing Prison Risk After CARES Act Home Confinement

By Charles Burnham and Jonathan Knowles | December 5, 2021, 8:02 PM EST ·

Charles Burnham
Jonathan Knowles
Because of the COVID-19 pandemic, many individuals in federal prison were allowed to serve their time on home confinement. The pandemic will end one day, though, and many of them will still have time to serve.

Will they have to go back to prison? Until recently, the answer seemed to be yes, but that answer might have changed. Even so, people on home confinement should begin to plan for the worst-case scenario.

Home Confinement During the Pandemic

Few places were so afflicted by the pandemic as prisons.[1] By the end of June, the Federal Bureau of Prisons reported 49,324 cases of COVID-19 — over a quarter of the federal prison population.[2] Tragically, 258 of these people died.[3] The real numbers may be even higher.[4]

Horrifying though this tragedy is, it could have been even worse. Recognizing the potential for catastrophe, Congress expanded eligibility for home confinement under federal law.

Before the pandemic, the federal BOP could place incarcerated individuals on home confinement only at the end of their sentence. Section 12003(b)(2) of the Coronavirus Aid, Relief and Economic Security Act temporarily removed this restriction. Since then, the BOP has placed approximately 35,000 people in prison on home confinement.[5]

In January, the Trump administration concluded that the BOP must revoke home confinement when the pandemic ends.[6]

According to a memo by the U.S. Department of Justice's Office of Legal Counsel, the extension of home confinement applies only during the national emergency and while the pandemic affects the BOP's functioning. At the end of that period, the BOP must recall most of those placed on home confinement under the CARES Act.

Initially, the Biden administration seemed to agree.[7] This stance led to vocal opposition and at least one lawsuit — Martinez-Brooks v. Garland, filed in the U.S. District Court for the District of New Jersey.[8]

Since then, the administration has softened its tone. On Oct. 27, Attorney General Merrick Garland told the Senate that recalling individuals on home confinement would be "a terrible policy."[9] He stated that the DOJ was looking at options to maintain home confinement, anticipating a conclusion before the expiration of Section 12003(b)(2).

The White House invited some people in prison to apply for commutation of their sentence. The White House has not indicated how many commutations it may offer, but it intends to begin with "non-violent drug offenders on CARES Act home confinement with four years or less to serve."[10]

Possible Options for Those at Risk of Losing Home Confinement

We hope that nobody will be separated from their loved ones and forced back behind bars. Even so, that is a serious risk. What are the options if it materializes?

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote.

Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach.[11]

Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Procedural Obstacles to Legal Challenges

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends.

It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement. Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.

One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement.[12]

Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.[13]

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.[14]

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act.[15] The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.[16]

Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.[17]

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.[18]

Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.[19]

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.[20] Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.[21]

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.[22]

Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.[23]

Other Relief Available

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.[24] In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release. In every circuit, people in prison can seek compassionate release under the criteria set forth in the U.S. Sentencing Guidelines.[25] These criteria are limited to serious medical conditions, health consequences of old age, and the need to care for a spouse or minor child.[26]

During the height of the pandemic, vulnerability to COVID-19 frequently satisfied the medical-conditions standard. Following vaccination, relief on COVID-19 grounds has become rare.[27]

Some people in prison may qualify based on age, other medical conditions or family obligations.

District courts in some circuits enjoy broader discretion as to what constitutes an extraordinary and compelling reason for a sentence reduction.[28]

A common reason is that a defendant charged with a similar crime today would not receive a similar sentence.[29]

Other reasons that courts have found sufficient include unwarranted sentencing disparities with co-defendants,[30] young age at the time of offense, [31] good deeds exceeding rehabilitation,[32] the harshness of confinement during COVID-19,[33] or simply the unusual length of the sentence.[34]

These reasons have typically been used by people serving lengthy sentences for violent crimes who were not eligible for home confinement, but some may be available to individuals on home confinement who are facing recall.

Unfortunately, before seeking compassionate release from a court, people in prison must request compassionate release from the warden of their facility, then either wait for 30 days or exhaust their administrative remedies.[35]

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement. They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Correction: An earlier version of this article included an incorrect citation in footnote 14. The error has been corrected.

Charles Burnham is a partner and Jonathan Knowles is an associate at Burnham & Gorokhov PLLC.

Disclosure: The authors are currently advising a client as to possible recall from home confinement. Burnham & Gorokhov also has represented, and currently represents, inmates seeking compassionate release. Neither the authors nor Burnham & Gorokhov are involved with any case cited.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See generally Bill Chappell, Crowded U.S. Jails Drove Millions of COVID-19 Cases, A New Study Says, NPR (Sept. 2, 2021),; Frank R. Baumgartner et al., Thousands of Prisoners Have Died of Covid-19. Because Of The 'Tough On Crime' Era, There's Worse to Come., Wash. Post: Monkey Cage (Aug. 26, 2021),

[2] A State-By-State Look at 15 Months of Coronavirus in Prisons, The Marshall Project, (last updated July 1, 2021).

[3] Id.

[4] Maura Turcotte et al., The Real Toll from Prison Covid Cases May Be Higher than Reported, N.Y. Times (July 7, 2021),

[5] Frequently Asked Questions Regarding Potential Inmate Home Confinement in Response to the COVID-19 Pandemic, BOP, (last visited Nov. 23, 2021).

[6] Home Confinement of Federal Prisoners After the COVID-91 Emergency, 45 Op. O.L.C. _ (Jan. 15, 2021),

[7] Charlie Savage & Zolan Kanno-Youngs, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency, N.Y. Times (July 19, 2021),

[8] See FAMM Urges U.S. Attorney General Garland to Act Now to Prevent Thousands on CARES Act Home Confinement from Returning to Prison, FAMM (June 7, 2021),; Sur-Reply in Opposition to Motion to Dismiss, United States v. Martinez-Brooks, Civil Action No. 21-11307 (BRM) (JSA) (D.N.J. Nov. 12, 2021), ECF No. 18.

[9] Department of Justice Oversight Hearing at 2:13:42, C-SPAN (Oct. 27, 2021),

[10] Sam Stein, Biden Starts Clemency Process for Inmates Released Due to Covid Conditions, POLITICO (Sept. 13, 2021),

[11] See, e.g., Baltimore Lawmakers Call on DOJ to Prevent Return to Prison for Individuals Posing No Danger to Public Safety, Released Due to COVID-19, Dutch Ruppersberger (Sept. 21, 2021),; Durbin, Booker Call on AG Garland To Rescind Trump-era Opinion That Would Force Individuals on Home Confinement to Return to Prison Following Pandemic, Senate Committee on the Judiciary (Apr. 23, 2021),

[12] Complaint, Martinez-Brooks (D.N.J. May 17, 2021), ECF No. 1.

[13] Motion to Dismiss at 12-17, Martinez-Brooks (D.N.J. Sept. 7, 2021), ECF No. 9; Reply in Support of Motion to Dismiss at 1-5, Martinez-Brooks (D.N.J. Nov. 8, 2021), ECF No. 15.

[14] Motion to Dismiss at 17-20, Martinez-Brooks; Reply at 5-6, Martinez-Brooks.

[15] Goodchild v. Ortiz , Civil No. 21-790 (RMB), 2021 WL 3914300, at *19 (D.N.J. Sept. 1, 2021).

[16] Motion to Dismiss at 20-25, Martinez-Brooks.

[17] Id. at 25-27.

[18] See Demis v. Sniezek , 558 F.3d 508, 511 (6th Cir. 2009) (citing examples); but see Richmond v. Scibana , 387 F.3d 602, 605-06 (7th Cir. 2004) (holding that such a challenge must be brought under the Administrative Procedure Act).

[19] See Sekerke v. Gore , No. 20-CV-1998 JLS (MSB), 2021 WL 3604169, at *5-7 (S.D. Cal. Aug. 13, 2021) (describing courts' various conclusions on whether they can consider an inmate's request for release during the COVID-19 pandemic); Robertson v. Warden , No. 1:20-CV-2117, 2021 WL 916253, at *5 (M.D. Pa. Mar. 10, 2021) (finding jurisdiction over habeas request for home confinement); Francois v. Garcia , 509 F. Supp. 3d 668, 673-76 (S.D. Tex. 2020) (describing contradictory approaches taken within the Fifth Circuit); Hatch v. Lappin , 660 F. Supp. 2d 104, 108 (D. Mass. 2009) (finding jurisdiction over a federal inmate's habeas challenge to revocation of home confinement).

[20] See Rumsfeld v. Padilla , 542 U.S. 426, 434-47 (2004) (holding that, in habeas corpus cases challenging present physical confinement, the proper respondent is the warden of the facility confining the petitioner and jurisdiction is limited to the court for the district of confinement); see also id. at 454 (Kennedy, J., concurring) (citing Strait v. Laird , 406 U.S. 341, 345 (1972)) (noting that the Supreme Court "has made exceptions in the cases of nonphysical custody").

[21] See Coleman v. U.S. Parole Comm'n , 644 F. App'x 159, 162 (3d Cir. 2016) (citing Harris v. Martin , 792 F.2d 52, 54 n.2 (3d Cir. 1986); Bradshaw v. Carlson , 682 F.2d 1050, 1052 (3d Cir.1981)) ("[E]xhaustion is not required with regard to claims which turn only on statutory construction."); Michalski v. Decker , 279 F. Supp. 3d 487, 495 (S.D.N.Y. 2018) (listing exceptions to the exhaustion requirement).

[22] United States v. McLendon , Crim. No. 17-00046-01, 2020 WL 3452614, at *3 (W.D. La. June 24, 2020) (citing examples); see, e.g., Goodchild, 2021 WL 3914300, at *18-19; Hatch, 660 F. Supp. 2d at 112.

[23] See Cheek v. Warden , 835 F. App'x 737, 740 (5th Cir. 2020); Marshall v. Hudson , 807 F. App'x 743, 748 (10th Cir. 2020).

[24] See 28 U.S.C. § 2255(f).

[25] See United States v. Bryant , 996 F.3d 1243, 1248 (11th Cir. 2021) ("1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop 'other reasons' that might justify a reduction in a defendant's sentence."), petition for cert. filed, No. 20-1732 (June 10, 2021).

[26] U.S. Sentencing Guidelines Manual § 1B1.13, Application Note 1 (U.S. Sentencing Comm'n 2018).

[27] But see United States v. Cunningham , Crim. No. CCB-18-278, 2021 WL 3710027 (D. Md. Aug. 20, 2021) (granting compassionate release to vaccinated inmate with medical conditions rendering him vulnerable to COVID-19); United States v. Sawyer , No. 5:15-CR-160-BO-1, 2021 WL 3051985, at *2 (E.D.N.C. June 15, 2021) (citing cases in which courts have granted compassionate release to vaccinated inmates).

[28] See, e.g., United States v. Brooker , 976 F.3d 228, 237 (2d Cir. 2020) ("[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.").

[29] See United States v. McCoy , 981 F.3d 271, 285-88 (4th Cir. 2020); United States v. Vigneau , 473 F. Supp. 3d 31, 38 (D.R.I. 2020); United States v. Ledezma-Rodriguez , 472 F. Supp. 3d 498, 504 (S.D. Iowa 2020).

[30] See United States v. Payton , Crim. No. PJM 06-341, 2021 WL 927631, at *2 (D. Md. Mar. 11, 2021); United States v. Cano , No. 95-00481-CR-ALTONAGA, 2020 WL 7415833, at *6 (S.D. Fla. Dec. 16, 2020); United States v. Millan , No. 91-CR-685 (LAP), 2020 WL 1674058, at *15 (S.D.N.Y. Apr. 6, 2020).

[31] See, e.g., United Sates v. Ramsay , 96-cr-1098 (JSR), 2021 WL 1877963, at *7-14 (S.D.N.Y. May 11, 2021).

[32] See United States v. Torres , 464 F. Supp. 3d 651, 663-64 (S.D.N.Y. 2020).

[33] See, e.g., United States v. Hatcher , No. 18 Cr. 454-10 (KPF), 2021 WL 1535310, at *4 (S.D.N.Y. Apr. 19, 2021); see also United States v. Kibble , 992 F.3d 326, 335-36 (4th Cir. 2021) (Gregory, C.J., concurring).

[34] See Vigneau, 473 F. Supp. 3d at 37-38; Ledezma-Rodriguez, 472 F. Supp. 3d at 505.

[35] 18 U.S.C. § 3582(c)(1)(A).

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