Emergency Community Supervision Act

II 116TH CONGRESS 2D SESSION S. 3646 To require the transfer or release of certain individuals in the custody of the United States because of their risk of exposure during a national emergency, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 7, 2020 Mr. BOOKER (for himself, Ms. HARRIS, and Mr. SANDERS) introduced the fol- lowing bill; which was read twice and referred to the Committee on the Judiciary A BILL To require the transfer or release of certain individuals in the custody of the United States because of their risk of exposure during a national emergency, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Emergency Commu- 4 nity Supervision Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3646 IS (1) As of the date of introduction of this Act, 1 the novel coronavirus has spread to all 50 States, 2 the District of Columbia, and 3 territories. 3 (2) The Centers for Disease Control and Pre- 4 vention have projected that between 160,000,000 5 and 214,000,000 people could be infected by the 6 novel coronavirus in the United States over the 7 course of the pandemic. 8 (3) Although the United States has less than 5 9 percent of the world’s population, the United States 10 holds approximately 21 percent of the world’s pris- 11 oners and leads the world in the number of individ- 12 uals incarcerated, with nearly 2,200,000 people in- 13 carcerated in State and Federal prisons and local 14 jails. 15 (4) Studies have shown that individuals age out 16 of crime starting around 25 years of age, and re- 17 leased individuals over the age of 50 have a very low 18 recidivism rate. 19 (5) According to public health experts, incarcer- 20 ated individuals are particularly vulnerable to being 21 gravely impacted by the novel corona virus pandemic 22 because— 23 (A) they have higher rates of underlying 24 health issues than members of the general pub- 25 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3646 IS lic, including higher rates of respiratory disease, 1 heart disease, diabetes, obesity, HIV/AIDS, 2 substance abuse, hepatitis, and other conditions 3 that suppress immune response; and 4 (B) the close conditions and lack of access 5 to hygiene products in prisons make these insti- 6 tutions unusually susceptible to viral 7 pandemics. 8 (6) The spread of communicable viral disease in 9 the United States generally constitutes a serious, 10 heightened threat to the safety of incarcerated indi- 11 viduals, and there is a serious threat to the general 12 public that prisons may become incubators of com- 13 munity spread of communicable viral disease. 14 SEC. 3. DEFINITIONS. 15 In this Act: 16 (1) COVERED HEALTH CONDITION.—The term 17 ‘‘covered health condition’’ with respect to an indi- 18 vidual, means the individual— 19 (A) is pregnant; 20 (B) has chronic lung disease or asthma; 21 (C) has congestive heart failure or coro- 22 nary artery disease; 23 (D) has diabetes; 24 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3646 IS (E) has a neurological condition that weak- 1 ens the ability to cough; 2 (F) has HIV; 3 (G) has sickle cell anemia; 4 (H) has cancer; or 5 (I) has a weakened immune system. 6 (2) COVERED INDIVIDUAL.—The term ‘‘covered 7 individual’’— 8 (A) means an individual who— 9 (i) is a juvenile (as defined in section 10 5031 of title 18, United States Code); 11 (ii) is 50 years of age or older; 12 (iii) has a covered health condition; or 13 (iv) is within 12 months of release 14 from incarceration; and 15 (B) includes an individual described in 16 subparagraph (A) who is serving a term of im- 17 prisonment for an offense committed before No- 18 vember 1, 1987. 19 (3) NATIONAL EMERGENCY RELATION TO A 20 COMMUNICABLE DISEASE.—The term ‘‘national 21 emergency relating to a communicable disease’’ 22 means— 23 (A) an emergency involving Federal pri- 24 mary responsibility determined to exist by the 25 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3646 IS President under section 501(b) of the Robert T. 1 Stafford Disaster Relief and Emergency Assist- 2 ance Act (42 U.S.C. 5191(b)) with respect to a 3 communicable disease; or 4 (B) a national emergency declared by the 5 President under the National Emergencies Act 6 (50 U.S.C. 1601 et seq.) with respect to a com- 7 municable disease. 8 SEC. 4. PLACEMENT OF CERTAIN INDIVIDUALS IN COMMU- 9 NITY SUPERVISION. 10 (a) AUTHORITY.—Except as provided in subsection 11 (b), beginning on the date on which a national emergency 12 relating to a communicable disease is declared and ending 13 on the date that is 60 days after such national emergency 14 expires— 15 (1) notwithstanding any other provision of law, 16 the Director of the Bureau of Prisons shall place in 17 community supervision all covered individuals who 18 are in the custody of the Bureau of Prisons; and 19 (2) the district court of the United States for 20 each judicial district shall place in community super- 21 vision all covered individuals who are in the custody 22 and care of the United States Marshals Service. 23 (b) EXCEPTIONS.— 24 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3646 IS (1) BUREAU OF PRISONS.—In carrying out sub- 1 section (a)(1), the Director— 2 (A) may not place in community super- 3 vision any individual determined, by clear and 4 convincing evidence, to be likely to pose a spe- 5 cific and substantial risk of causing bodily in- 6 jury or using violent force against the person of 7 another; 8 (B) shall place in the file of each individual 9 described in subparagraph (A) documentation 10 of such determination, including the evidence 11 used to make the determination; and 12 (C) not later than 180 days after the date 13 on which the national emergency relating to a 14 communicable disease expires, shall provide a 15 report to Congress documenting— 16 (i) the demographic data (including 17 race, gender, age, offense of conviction, 18 and criminal history level) of the individ- 19 uals denied placement in community super- 20 vision under subparagraph (A); and 21 (ii) the justification for the denials de- 22 scribed in clause (i). 23 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3646 IS (2) DISTRICT COURTS.—In carrying out sub- 1 section (a)(2), each district court of the United 2 States— 3 (A) shall conduct an immediate and expe- 4 dited review of the detention orders of all cov- 5 ered individuals in the custody and care of the 6 United States Marshals Service, which may be 7 conducted sua sponte and ex parte, without— 8 (i) appearance by the defendant or 9 any party; or 10 (ii) requiring a petition, motion, or 11 other similar document to be filed; 12 (B) may not place in community super- 13 vision any individual the court determines, after 14 a hearing and by clear and convincing evidence, 15 to be likely to pose a specific and substantial 16 risk of causing bodily injury or using violent 17 force against the person of another; and 18 (C) in carrying out subparagraphs (A) and 19 (B), may— 20 (i) rely on evidence presented in prior 21 court proceedings; and 22 (ii) if the court determines it nec- 23 essary, request additional information from 24 the parties to make the determination. 25 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3646 IS (c) LIMITATION ON COMMUNITY SUPERVISION 1 PLACEMENT.—In placing covered individuals into commu- 2 nity supervision under this section, the Director of the Bu- 3 reau of Prisons and the district court of the United States 4 for each judicial district shall take into account and 5 prioritize placements that enable adequate social 6 distancing, which include home confinement or other 7 forms of low in-person-contact supervised release. 8 SEC. 5. LIMITATION ON PRE-TRIAL DETENTION. 9 Notwithstanding section 3142 of title 18, United 10 States Code, beginning on the date on which a national 11 emergency relating to a communicable disease is declared 12 and ending on the date that is 60 days after such national 13 emergency expires, the Government may not seek to de- 14 tain, and a judicial officer (as defined in section 3156 of 15 title 18, United States Code) may not order the detention 16 of, any individual, unless the Government shows by clear 17 and convincing evidence that— 18 (1) releasing the individual will create a high 19 risk of willful non-appearance in court; or 20 (2) the individual poses a specific and substan- 21 tial risk of causing bodily injury or using violent 22 force against the person of another. 23 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3646 IS SEC. 6. LIMITATION ON SUPERVISED RELEASE. 1 Beginning on the date on which a national emergency 2 relating to a communicable disease is declared and ending 3 on the date that is 60 days after such national emergency 4 expires, the Office of Probation and Pretrial Services of 5 the Administrative Office of the United States Courts 6 shall take measures to prevent the spread of the commu- 7 nicable viral disease among individuals under supervision 8 by— 9 (1) suspending the requirement that individuals 10 determined to be a lower risk of reoffending, or any 11 other individuals determined to be appropriate by 12 the supervising probation officer, report in person to 13 their probation or parole officer; 14 (2) identifying individuals who have successfully 15 completed not less than 18 months of supervision 16 and transferring such individuals to administrative 17 supervision or petitioning the court to terminate su- 18 pervision, as appropriate; and 19 (3) suspending the request for detention and 20 imprisonment as a sanction for violations of proba- 21 tion, supervised release, or parole. 22 SEC. 7. PROHIBITION. 23 No individual who is granted placement in community 24 supervision, termination of supervision, placement on ad- 25 ministrative supervision, or pre-trial release shall be re- 26 VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3646 IS incarcerated, placed on supervision or active supervision, 1 or ordered detained pre-trial only as a result of the expira- 2 tion of the national emergency relating to a communicable 3 disease. 4 Æ VerDate Sep 11 2014 23:06 May 09, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S3646.IS S3646 pamtmann on DSKBC07HB2PROD with BILLS