DOJ faces big decision on home confinement

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.

President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.

“If you’re one of these people, you’re trying to figure out, ‘Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I’m going to be in six months?’ That’s cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don’t worry about it, it’s not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.

According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime.

Ames Grawert, a senior counsel at the Brennan Center for Justice who focuses on quantitative research around crime and incarceration, said that from an empirical standpoint, the program’s nearly nonexistent recidivism rates were shocking.

“We are led to believe that there are this many people in prison, for whom prison is necessary to protect public safety,” Grawert said. “The pandemic is a very difficult time, and there are a million other social variables at play, but the extended home confinement programs suggest that it may well be the case that there are people in federal prison who do not need to be in a formal prison for legitimate public safety reasons.”

The uncertainty about the program’s fate began in January, a few days before President Biden’s inauguration, when the Justice Department’s Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.

“This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement. “It is important to recognize even under the Office of Legal Counsel’s (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences. For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.

“The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.

Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups.

The Justice Department did not immediately respond to a request for comment.

Biden campaigned heavily on criminal justice reform last year amid nationwide unrest over police brutality following the killing of George Floyd. Part of his campaign pledge was to reduce federal incarceration rates.

“Reducing the number of incarcerated individuals will reduce federal spending on incarceration,” reads a page on his campaign’s website dedicated to criminal justice reform. “These savings should be reinvested in the communities impacted by mass incarceration.”

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.

Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They’ve said they want to use the clemency authority more robustly to let people out of prison who don’t need to be there,” said Ring, who has served time in federal prison. “Well, here’s 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can’t find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”

Some public health experts and criminal justice advocates argue the home confinement program did not go far enough to combat the spread of COVID-19 in the prison system. According to BOP statistics, 234 inmates and four bureau staffers died from the coronavirus, and more than 46,000 inmates and 6,700 corrections staff have tested positive for COVID-19.

Douglas Berman, a law professor at Ohio State University who studies sentencing policy, said federal prison inmates are less likely to be violent offenders than those in state institutions, so the Justice Department could have gone much further in reducing the population behind bars.

“I certainly went into the pandemic era thinking that Congress should authorize BOP to let a lot of people out and not just the ones about to get out anyway, not just the lowest-risk folks, that this was a time where it was worth being even bolder,” Berman said. “That said, this was still the boldest home confinement experiment in federal prison history.”

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.

Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.

“I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home.

“Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You’re not going back. We’re not making you go back. We’ll rescind the memo or we’ll use some other authority we have to fix this.’ But these people need to get on with their lives.”