Home Confinement as an Alternative to Prison or Jail

Elderly or terminally ill inmates can petition their sentencing judge for compassionate release due to extraordinary circumstances. Although a lawyer is not required, a skilled attorney gives a prisoner his best hope.

Compassionate Release for Ill and Elderly Prisoners

Under newer rules with the Bureau of Prisons (BOP), there is greater potential for release to home confinement for elderly, terminally ill, and low-risk prisoners. An experienced attorney can help an inmate prove to the institutional staff that they qualify for early release or home confinement based on age or illness. If the prison rejects the request, you can now appeal to your trial judge. Home confinement as an alternative to prison is the last resort for some elderly and terminally ill prisoners.

Whether to allow for an early release of a federal inmate is made by BOP staff. Unfortunately, personal conflicts, media, laziness, politics, and other inappropriate considerations often influence their decisions. The fact is that when an attorney is involved, the staff are less likely to be summarily dismissive of a prisoner’s written request for early release or home confinement.

How is the Decision to Grant Home Confinement Made?

According to the new rules, elderly or terminally ill offenders may qualify for home confinement as an alternative to prison. For elderly inmates, the basic rules are that:

they are at least 60 years old,
they are not serving a life term of imprisonment for a crime of violence,
they have no prior record of assaultive or sexual crimes,
they have not escaped or attempted to escape, and
they are not a substantial danger to others if released.

“Terminally ill offender” means an inmate who is serving a term of imprisonment based on conviction on a sex offense or major assaultive crime, who has no prior record for sex or major assaultive crimes, and who has been determined by a medical doctor that the Bureau approves to need care at a nursing home, intermediate care facility, or assisted living facility.

The First Step Act and its Impact on Low-Risk, Elderly, and Ill Prisoners – New Options for Home Confinement as an Alternative to Prison or Jail

The First Step Act was passed in 2018 to expand opportunities for low-risk, elderly, and sick inmates to be released on home confinement. Under this Act, the Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted.

Most federal inmates enter Residential Reentry Management Centers (RRC) upon release from prison. Under the First Step Act, it may be possible for low-risk inmates to be released to home confinement and avoid RRC placement. This provision applies to low-risk inmates with six months or 10% of their sentence left to serve, whichever is less.

For terminally ill and elderly inmates, the First Step Act now permits the inmate to appeal directly for early release to home confinement. This is where an experienced and effective criminal attorney can be helpful. The Bureau of Prisons will not search for medical records or look for ways to justify a compassionate release. An attorney can organize a complete, credible, and persuasive written petition for home confinement as an alternative to prison. This is allowed by law under 34 U.S.C. § 60541(g)(1)(b).

Home Confinement Broadly Defined

Home Detention includes detention in a nursing home or other residential long-term care facility. Under the First Step Act, a doctor must determine that the inmate needs care at a nursing home, intermediate care facility, or assisted living facility. The term “nursing home” means a licensed and regulated facility for accommodating convalescents or other persons who are not acutely ill and not in need of hospital care but who require skilled nursing care. An “intermediate care facility” is for persons who, because of incapacitating infirmities, require minimum but continuous care but do not require continuous medical or nursing services. Finally, an assisted living facility is one where residents are assisted in carrying out activities of daily living, and there are separate dwelling units. If you are unsure whether a facility or home would qualify for home confinement as an alternative to prison, the lawyers with LEWIS & DICKSTEIN, P.L.L.C. are available for a free consultation and can help you understand the available options.

First Step Act Performance and Implementation

On December 21, 2018, the First Step Act became law, increasing the chances of federal prisoners to request and obtain compassionate release. Previously, only the Bureau of Prisons (BOP) had the power to initiate a Motion for Compassionate Release, but it was known for being reticent to do so. With the First Step Act, inmates can submit their own motion to the court, with or without a lawyer, if the BOP denies their request or doesn’t respond within 30 days. Statistically, judges grant motions drafted by experienced lawyers far more often than for self-represented inmates or those with low-budget lawyers.

Since the passage of the First Step Act:

Increase in Compassionate Release Motions: There has been a notable increase in the number of motions filed by inmates seeking compassionate release. This is mainly because inmates no longer rely solely on the BOP to initiate the process.
Varied Receptiveness: The receptiveness of federal judges to these petitions varies significantly across the country. Some judges have been more willing to grant compassionate release, especially when the petitioner is at significant risk due to health reasons or other extenuating circumstances. At the same time, others have been more stringent in their assessments.
COVID-19 Pandemic Impact: The COVID-19 pandemic introduced an unprecedented variable into the equation. Many inmates, especially older ones or those with underlying health conditions, became particularly vulnerable to the virus. As a result, there was a surge in compassionate release requests during this period, and courts were more inclined to grant release to reduce the risk of spread in prison populations. However, even during this period, there was significant variability between judges and jurisdictions in how they addressed these requests.
Legal Challenges and Clarity: As with any new legislation, the First Step Act’s provisions regarding compassionate release have been subjected to legal interpretation and challenges. Over time, court decisions and subsequent case law have helped clarify the boundaries and standards for compassionate release under the Act.

While there has been an increase in compassionate release motions since the First Step Act’s passage, the outcomes are varied based on individual judges, regional practices, and evolving legal interpretations. The context of the COVID-19 pandemic also significantly influenced the dynamics of compassionate release for a period.

How Can a Federal Defense Attorney Help with Home Confinement as an Alternative to Prison or Jail?

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has extensive experience developing powerful and persuasive petitions for clients seeking various forms of relief from courts and administrative agencies. We have the know-how, resources, experience, and passion for drafting a compelling petition for early release to home confinement or detention. Because an inmate may only get one shot at this type of request, the request must be made as convincingly as possible. Please call us today for a free consultation and confidential case evaluation.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.