Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison

Alice Marie Johnson and Ja’Ron Smith have this notable new USA Today opinion piece headlined "COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it." The subtitle of the piece captures its themes: "Nearly 5,000 inmates may be sent back to prison. After rebuilding their lives, and being contributing members of society, how is being returned justice?". Here are excerpts (links from original):

This spring, as more Americans are able to get vaccinated, there’s hope the pandemic is nearing its end and life is slowly returning to normal.  But for 4,500 Americans, the end of the pandemic could instead mean returning to prison. 

The March 2020 CARES Act allowed the Federal Bureau of Prisons to expand the period of home confinement, which usually comes at the end of a sentence.  As a result, thousands of incarcerated individuals convicted of nonviolent crimes were released from prison – where COVID-19 swept through cramped facilities – to home confinement. Many were able to reunite with their families and find jobs.   

But earlier this year, the Justice Department ordered that individuals under home confinement due to COVID-19 must return to prison when the emergency is lifted, putting 4,500 lives in limbo, awaiting an uncertain date when their return to normalcy is taken away.  Inmates near the end of their sentence may be able to stay home if the Bureau of Prisons grants permission, according to a recent USA TODAY report.  And while the Biden administration extended the length of the COVID emergency declaration, that still might not help people with years left to serve.   

The administration could get into a legal back-and-forth over the interpretation of the CARES Act.  But a simpler path would be for President Joe Biden to grant clemency to those on home confinement who pose no threat to public safety.  Reviewing the cases will be another step toward reducing unnecessary incarceration in America, which imprisons more people than any other democratic country with no added benefit to public safety.  

The two of us experienced the justice system, and clemency in particular, up close.  One of us worked as a senior adviser to former President Donald Trump on criminal justice and other policy issues.  The other served nearly 22 years in prison for a first-time, nonviolent drug offense before returning home after Trump granted clemency, and later a pardon.  Through these experiences, we have come to know people from diverse backgrounds who have made mistakes, but still have much to offer their families and our society. That is what we are seeing with many of the individuals under home confinement due to COVID-19....

To prevent individuals like these from being sent back to prison, a congressional coalition wrote a letter to Biden, urging him to review their cases for clemency.  The letter notes that the CARES Act did not require individuals on home confinement be sent back to prison, and that the Justice Department can modify the guidance issued by the last administration.  But clemency would allow rehabilitated individuals to move on with their lives rather than serving home detention for the rest of their sentences.   

Clemency should be carefully and fairly considered.  But all the people under home confinement were released because they were determined to be safe, making them strong candidates.  The moral issue goes beyond these 4,500 Americans.  In recent years, a diverse coalition from across the political spectrum has united for criminal justice reforms. Trump signed the bipartisan First Step Act in 2018, reducing some excessive sentences and creating more opportunities for rehabilitation.  

Biden ran on a platform to build on these criminal justice reforms. As he said in a proclamation commemorating Second Chance Month, “We lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”  Biden should now extend that commitment to people under home confinement.  Reviewing these cases for clemency will not only help transform the lives of thousands of Americans, but also continue the momentum toward a more sensible and fair criminal justice system. 

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?
• New detailed polling reveals broad support for broad use of clemency power to commute sentences