It’s just come to my attention that Attorney General Barr recently issued a memorandum purporting to address the problem of COVID-19 for federal prisons, by recommending consideration of release from federal prison to home confinement. In the federal system there is a regular program allowing many prisoners to be released near the end of their sentence to “halfway houses”, which are run by private contractors. Many in halfway houses are then released fairly quickly from those settings to home confinement, especially if they have found employment. While in home confinement, they are supervised by the halfway house staff. Some with employment are released directly to home confinement after checking in with their assigned halfway house.
Barr’s memo suggests that additional prisoners in low and medium security federal prisons be given priority for this program. Virtually all those incarcerated in a federal prison for a sex offense are housed in low or medium security prisoners because their scores on the relevant federal tests lead to a low violence rating. The feds of course have no jurisdiction over ordinary street crimes, such as rape or sexual assault, unless they are committed in a national park or an Indian reservation. So it’s not surprising that most persons in a federal prison for a “sex offense” are there for possession of child pornography. It’s a large group because about 1/3 of all prosecutions, nationally, for possession of CP are federal. They are overwhelmingly placed in low security prisons because they are disproportionately first offenders with no criminal history. Barr’s memo, however, goes on to say that “Some offenses, such as sex offenses, will render an inmate ineligible for home detention”.
Given the particularly low re-offense probability of individuals in federal prisons for sexual offenses, this is an indefensible statement. And as it happens, it is also an incorrect statement of federal law and policy, at least as it stood a few years ago when I last had occasion to become involved in this. There is no bar on home confinement for persons convicted of a sexual offense. It was the case that some federally contracted halfway houses refused to accept anyone required to register, but others did. In some places, such as Guam, that had no halfway houses in the district, federal prisoners including CP offenders were released to home confinement to be supervised by federal parole officers.
Not surprisingly, there are also other problems with Barr’s memo, and some concerns have been expressed by the chair of the House Judiciary committee in a statement it released today. See https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=2893. But that statement does not note this problem.
— By ACSOL Board Member Ira Ellman, Distinguished Affiliated Scholar, Center for the Study of Law and Society, University of California, Berkeley