II 116th CONGRESS 2d Session S. 3646 IN THE SENATE OF THE UNITED STATES May 7, 2020 Mr. Booker (for himself, Ms. Harris , and Mr. Sanders ) introduced the following 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.

1. Short title This Act may be cited as the Emergency Community Supervision Act . 2. Findings Congress finds the following: (1) As of the date of introduction of this Act, the novel coronavirus has spread to all 50 States, the District of Columbia, and 3 territories. (2) The Centers for Disease Control and Prevention have projected that between 160,000,000 and 214,000,000 people could be infected by the novel coronavirus in the United States over the course of the pandemic. (3) Although the United States has less than 5 percent of the world’s population, the United States holds approximately 21 percent of the world’s prisoners and leads the world in the number of individuals incarcerated, with nearly 2,200,000 people incarcerated in State and Federal prisons and local jails. (4) Studies have shown that individuals age out of crime starting around 25 years of age, and released individuals over the age of 50 have a very low recidivism rate. (5) According to public health experts, incarcerated individuals are particularly vulnerable to being gravely impacted by the novel corona virus pandemic because— (A) they have higher rates of underlying health issues than members of the general public, including higher rates of respiratory disease, heart disease, diabetes, obesity, HIV/AIDS, substance abuse, hepatitis, and other conditions that suppress immune response; and (B) the close conditions and lack of access to hygiene products in prisons make these institutions unusually susceptible to viral pandemics. (6) The spread of communicable viral disease in the United States generally constitutes a serious, heightened threat to the safety of incarcerated individuals, and there is a serious threat to the general public that prisons may become incubators of community spread of communicable viral disease. 3. Definitions In this Act: (1) Covered health condition The term covered health condition with respect to an individual, means the individual— (A) is pregnant; (B) has chronic lung disease or asthma; (C) has congestive heart failure or coronary artery disease; (D) has diabetes; (E) has a neurological condition that weakens the ability to cough; (F) has HIV; (G) has sickle cell anemia; (H) has cancer; or (I) has a weakened immune system. (2) Covered individual The term covered individual — (A) means an individual who— (i) is a juvenile (as defined in section 5031 of title 18, United States Code); (ii) is 50 years of age or older; (iii) has a covered health condition; or (iv) is within 12 months of release from incarceration; and (B) includes an individual described in subparagraph (A) who is serving a term of imprisonment for an offense committed before November 1, 1987. (3) National emergency relation to a communicable disease The term national emergency relating to a communicable disease means— (A) an emergency involving Federal primary responsibility determined to exist by the President under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5191(b) ) with respect to a communicable disease; or (B) a national emergency declared by the President under the National Emergencies Act ( 50 U.S.C. 1601 et seq.) with respect to a communicable disease. 4. Placement of certain individuals in community supervision (a) Authority Except as provided in subsection (b), beginning on the date on which a national emergency relating to a communicable disease is declared and ending on the date that is 60 days after such national emergency expires— (1) notwithstanding any other provision of law, the Director of the Bureau of Prisons shall place in community supervision all covered individuals who are in the custody of the Bureau of Prisons; and (2) the district court of the United States for each judicial district shall place in community supervision all covered individuals who are in the custody and care of the United States Marshals Service. (b) Exceptions (1) Bureau of Prisons In carrying out subsection (a)(1), the Director— (A) may not place in community supervision any individual determined, by clear and convincing evidence, to be likely to pose a specific and substantial risk of causing bodily injury or using violent force against the person of another; (B) shall place in the file of each individual described in subparagraph (A) documentation of such determination, including the evidence used to make the determination; and (C) not later than 180 days after the date on which the national emergency relating to a communicable disease expires, shall provide a report to Congress documenting— (i) the demographic data (including race, gender, age, offense of conviction, and criminal history level) of the individuals denied placement in community supervision under subparagraph (A); and (ii) the justification for the denials described in clause (i). (2) District courts In carrying out subsection (a)(2), each district court of the United States— (A) shall conduct an immediate and expedited review of the detention orders of all covered individuals in the custody and care of the United States Marshals Service, which may be conducted sua sponte and ex parte, without— (i) appearance by the defendant or any party; or (ii) requiring a petition, motion, or other similar document to be filed; (B) may not place in community supervision any individual the court determines, after a hearing and by clear and convincing evidence, to be likely to pose a specific and substantial risk of causing bodily injury or using violent force against the person of another; and (C) in carrying out subparagraphs (A) and (B), may— (i) rely on evidence presented in prior court proceedings; and (ii) if the court determines it necessary, request additional information from the parties to make the determination. (c) Limitation on community supervision placement In placing covered individuals into community supervision under this section, the Director of the Bureau of Prisons and the district court of the United States for each judicial district shall take into account and prioritize placements that enable adequate social distancing, which include home confinement or other forms of low in-person-contact supervised release. 5. Limitation on pre-trial detention Notwithstanding section 3142 of title 18, United States Code, beginning on the date on which a national emergency relating to a communicable disease is declared and ending on the date that is 60 days after such national emergency expires, the Government may not seek to detain, and a judicial officer (as defined in section 3156 of title 18, United States Code) may not order the detention of, any individual, unless the Government shows by clear and convincing evidence that— (1) releasing the individual will create a high risk of willful non-appearance in court; or (2) the individual poses a specific and substantial risk of causing bodily injury or using violent force against the person of another. 6. Limitation on supervised release Beginning on the date on which a national emergency relating to a communicable disease is declared and ending on the date that is 60 days after such national emergency expires, the Office of Probation and Pretrial Services of the Administrative Office of the United States Courts shall take measures to prevent the spread of the communicable viral disease among individuals under supervision by— (1) suspending the requirement that individuals determined to be a lower risk of reoffending, or any other individuals determined to be appropriate by the supervising probation officer, report in person to their probation or parole officer; (2) identifying individuals who have successfully completed not less than 18 months of supervision and transferring such individuals to administrative supervision or petitioning the court to terminate supervision, as appropriate; and (3) suspending the request for detention and imprisonment as a sanction for violations of probation, supervised release, or parole. 7. Prohibition No individual who is granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.