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May 10, 2021
Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down. I recommend the full piece, and here are excerpts:
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....
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....
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?”...
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.”
I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment. And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons. And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups.
Some prior recent related posts:
- Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"
- Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
- Might Prez Biden use his clemency power relatively soon?
- Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?
- New detailed polling reveals broad support for broad use of clemency power to commute sentences
May 10, 2021 at 08:51 AM | Permalink
Comments
Another motivation for President Biden to use his clemency powers will be if the split among the Circuits about the appropriateness of Compassionate Release for inmates caused by the 11th Circuit's May 7, 2021 decision in United States v. Bryant goes to the U.S. Supreme Court (to resolve the Circuit Split) and their decision sides with the 11th Circuit. That raises the specter of men freed in many Circuits by Compassionate Release (section 3582) being returned to prison. Surely, Biden would commute their sentences, rather than permit them (hundreds of people) to be returned prison.
Posted by: Jim Gormley | May 10, 2021 12:43:07 PM