Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded

As highlighted in this Hill article, headlined "Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic," a number of advocacy groups have this week made a lengthy pitch to the Justice Department seeking to undo DOJ's internal memo concluding that federal prisoners released into home confinement will have to be returned to prison after the pandemic.  Here is an excerpt: 

Civil rights groups on Wednesday urged the Department of Justice (DOJ) to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars. 

Five organizations sent a 20-page letter to DOJ critiquing a Trump-era legal memo that concluded the department is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over.  They argued that the memo from the DOJ's Office of Legal Counsel (OLC) is based on a flawed interpretation of the CARES Act....

The letter was signed by the Democracy Forward Foundation, Families Against Mandatory Minimums, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers and Tzedek Association....

"The reasoning of the Memo is flawed and potentially harmful to the credibility of the office," the organizations wrote. "It overlooks important points of law and does not address reliance or due process issues that might apply to its analysis."

The full 20-page letter is available at this link, and here are portions of its introduction and conclusion:

OLC may reasonably determine that the Memo does not reflect the best (or even a permissible) reading of the relevant statutory language.  Specifically, the Memo read into the CARES Act a new requirement to revoke home confinement — immediately, and without discretion, at the end of the emergency — that does not exist anywhere in that statutory text. Under a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant and revoke home confinement is the same as it always was under the pre-existing statutory scheme, except that BOP was authorized to “lengthen” the period of time a person may serve on home confinement.  Additionally, the Memo did not consider the affected prisoners’ reliance interests, potentially triggering a wave of hundreds or thousands of challenges when and if BOP attempts to implement the Memo’s instructions and placing BOP in legal jeopardy under recent Supreme Court precedent.

We have great respect for OLC’s non-partisan stance and the office’s general practice of stare decisis.  Consistent with OLC policy, however, we encourage you to reassess the Memo because it is incorrect and will present serious practical obstacles to BOP and the U.S. Attorneys’ Offices, not to mention the thousands of affected prisoners.  We provide the analysis below on why we believe that OLC should reconsider the Memo....

For these reasons, we respectfully request that OLC review the Memo and rescind it.  Time is of the essence. Each day that this Memo remains in place is a day that interferes with the ability of people living on home confinement to make the kinds of investments in families and employment necessary to successfully reintegrate into society.

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
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)