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December 21, 2021

New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"

Regular readers are familiar with the legal issues surrounding what I have called the "home confinement cohort," those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority — we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation...

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): "Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in "rulemaking" that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the "home confinement cohort" who may need to worry about eventually heading back to federal prison.

Some of many prior related posts:

December 21, 2021 at 09:11 PM | Permalink


When the prisoners were released initially, were they required to sign a paper saying that their entry into home confinement was a temporary measure designed to reduce the risks to them in close confinement, and that when those risks were reduced, they understood and agreed that they would be required to return to prison?

That is simply a factual question. If there was such a paper, I suspect it was a standard form, and it would be illuminating to see a copy.

Posted by: Bill Otis | Dec 22, 2021 12:04:54 AM

My understanding, Bill, is that during 2020 there was neither formal nor even informal statements that home confinement was to be temporary (I am unsure if that changed after original OLC memo was released). I have heard that from advocates and from some place on HC.

Posted by: Doug B. | Dec 22, 2021 7:14:25 AM

Doug -- My experience with the feds is that there are three levels of paperwork if you want to change the toilet paper from one-ply to two-ply, so I would be very surprised if there were not paperwork, and plenty of it, that accompanied each COVID release.

For however that may be, you might be interested in today's article in the libertarian magazine Reason by my buddy Prof. Josh Blackman: https://reason.com/volokh/2021/12/22/biden-olc-reverses-trump-olc-opinion-on-bop-home-confinement/

The article quotes leading criminal justice reform advocate (and my friend and Georgetown colleague) Prof. Shon Hopwood as saying, "In fact, if President Biden ordered AG Garland to rescind the OLC memo so that the President could avoid a politically risky move (such as commuting 4,000 sentences), it would be no different than some of President Trump’s interactions with DOJ."

The article also notes that Biden's own OLC AGREED with the prior administration's view just six months ago, in July.

So what happened? Did the law change? No. What happened is that the political pressure from interest groups got more intense.

As Josh concludes: "The litigation here will be messy. A court ruling against BOP would force people who have already embedded themselves in society to report to prison. The sorts of reliance interests at issue in the DACA case would be present here as well. This move by Biden will likely survive by the force of its own inertia. We are seeing Presidential Maladministration at its worst."

The intrusion of politics into DOJ decisions has seldom been more obvious, and more obviously result-oriented, than this. If this administration wants to release these thousands of inmates, let it take political responsibility for doing so through pardons or commutations rather than pretending that the law magically transmogrified. But Biden doesn't want to do that, because his polling is already way underwater on handling crime. So he ducks, and in so doing risks long-term damage to OLC, one of the elite offices inside DOJ and one that, up to now, has largely enjoyed a reputation for placing law above politics.

Posted by: Bill Otis | Dec 22, 2021 10:41:41 AM

I have seen all the required forms people had to sign prior to release. None of them made mention of their release being temporary or being hinged to the end of emergency declaration. History and especially recent history has shown what happens when the BOP has full discretion, just look at the chaos dealing with the Covid, The Cares Act and compassionate release. President Biden campaigned on prison reform and yet since he's taken office the prison population has in fact gone up. Lets also keep in mind the stringent criteria that had to be met before people were released.The BOP felt more than comfortable with their releases. These are low-level offenders who many of which were already in out custody camps.

Posted by: Tedrick Dibiasi | Dec 22, 2021 11:58:36 AM

Tedrick Dibiasi --

Are you aware of a site where all the release forms are set forth? I tend to want to examine original sources.

Posted by: Bill Otis | Dec 22, 2021 12:35:06 PM

Bill Oates- I'll look around, if not I can request the forms from a client who I'm sure wouldn't mind sharing them

Posted by: Tedrick Dibiasi | Dec 22, 2021 12:54:04 PM

I agree that the litigation will be messy and entangled in administrative process and procedure. Biden has the authority to grant clemency and sadly the administration did not have the courage to do so. I would hope that someone in the administration, DOJ and BOP will develop a process that is clean and efficient - I hope I'm not dreaming.

Posted by: beth curtis | Dec 22, 2021 1:47:55 PM

Bill, who do you think has standing to challenge this new OLC memo which interprets the CARES Act --- I think reasonably, though debatably --- to embrace BOP's longstanding view that the CARES Act gives BOP broad discretion to decide if and when folks should be relocated from home confinement back to prison when the pandemic ends? In addition to the standing issue, there is also a ripeness issue if this were litigation now, don't you think?

I do not know if you are a big fan of deference to agencies like DOJ -- I suspect you were when working there --- but BOP seems reasonable in thinking Congress in the CARES Act would not have wanted to dramatically restrict BOP relocation authority given public safety and prison capacity management concerns even after the pandemic concluded. (E.g., would BOP have to recall for one-month or two folks about to be eligible for home confinement when the pandemic ends? How about people with serious health conditions getting better and cheaper care from home?) Moreover, I think the real litigation mess would have arisen if/when the old OLC memo was in place and BOP felt compelled to prepare to recall everyone --- would the old OLC memo be litigation separately in thousands of cases nationwide? It would likely take 2+ years to get a SCOTUS ruling under normal litigation timelines; would that be expedited and/or would folks stay home during the litigation? (Notably, some in the "home confinement cohort" have already tried to litigate against the old OLC memo, though I heard judges have said claims were not yet ripe.) So, with the new OLC memo, I think we actually will be avoiding a good deal of "messy" litigation, though that may still turn on how BOP exercises its discretion going forward.

That all said, I do not dispute the role and imprint of advocacy and political pressure with respect to everything DOJ does under any administration. Still, I doubt this decision will do "long-term damage to OLC." I have been hearing about "long-term damage to OLC" for decades now, and it seemed to have survived the "torture memos" just fine. If declaring that waterboarding is not torture did not bring down OLC, I doubt saying BOP has some discretion under the CARES Act will.

Moreover, to the you want to place political blame, I do not think it is on Biden for failing to use his clemency power preemptively. Blame Congress for its failure to have a CARES/home confinement statutory fix incorporated to some of the many bills that have been enacted in 2021. Perhaps because I am ignorant of way things work inside the Beltway, I continue to fail to see why there could not have been an effort to clarify BOP discretion here after the OLC memo. This could have been done with just a few words as a rider to some must-pass bill (e.g., the NDAA). I have heard from various folks that this is not as easy as it sounds, but that is the exact reason everyone dislikes modern federal politics. Clarifying unclear law to give BOP explicit discretion to decide if and when folks should be relocated from home confinement back to prison after the pandemic should get near unanimous approval, and yet apparently that cannot be done without some mysterious legerdemain. Sigh.

Posted by: Doug B. | Dec 22, 2021 2:12:43 PM

Doug --

The evidence is very persuasive (and largely undenied) that this was a political not a legal decision. As I've been saying for more than 20 years, politics and law don't mix. Liberals were quick (and correct) to see this when Trump was egging Comey to "go easy" on Flynn, and it is no less true now than it was then.

When one combines this with the "parents-at-school-board-meetings-are-domestic-terrorists" memo that Garland initialed after it was very obviously drafted, not at DOJ, but at the White House (with big time input from the affected interest groups), the excessive and dangerous influence of politics with this Justice Department has become alarming.

I really expected better of Garland. This was not his reputation.

Posted by: Bill Otis | Dec 22, 2021 3:41:39 PM

Doug --

As to standing: I think there's a significant problem. As to ripeness: Wouldn't know; everything I litigated was as ripe as ripe gets. As to Chevron deference: My prediction is that it's going the way of all flesh. From what I was hearing over the last few years, the main thing the relevant Office in the White House wanted in SCOTUS candidates was people who were very concerned about the exploding power of the administrative state and were ready to take it on. Take a look at what Gorsuch, Kavanaugh and Barrett have in common.

Posted by: Bill Otis | Dec 22, 2021 3:53:34 PM

The reason the President will not invoke clemency here is because if one of the grantee's commits a horrible crime commentators like asshole Tom Cotton (who did what to him as a child to spur his vindictive views?) will smack their lips and seize as supposed evidence that the Democrats are too soft on crime. I would argue that in a country with a huge population, if we don't see that once in a while, it means we are over-incarcerating. There is no logical basis for "conservatives" -- except attempt to showboat and distort -- for the likes of and Cotton to start their missive with a sob story about a victim and the truism that the person would still alive if not for the parole or clemency. Unfortunately, I fear that Cotton's approach can be effective with the average voter, who lacks the skills to sift through this stuff. We could really use some better faith from Cotton and his ilk.

Posted by: Mike | Dec 22, 2021 4:47:32 PM

"The reason the President will not invoke clemency here is because if one of the grantee's commits a horrible crime commentators like asshole Tom Cotton (who did what to him as a child to spur his vindictive views?) will smack their lips and seize as supposed evidence that the Democrats are too soft on crime."

Translation: "The President is too much of a coward to stand up to blowback from meanies."

Well goodness gracious! You heard it here first!!

"There is no logical basis for 'conservatives'...to start their missive with a sob story about a victim..."

However there's LOTS of logical basis for liberals to start their missive with a sob story about Dzhokhar Tsarnaev. They might even do a gushing Rolling Stone article on him.....oh.....wait..........

"...and the truism that the person would still alive if not for the parole or clemency."

To those who suspect I'm paying Mike to make these remarks, I can only say that, while it might be a shrewd investment, I SWEAR it ain't so!

Posted by: Bill Otis | Dec 22, 2021 6:36:29 PM

Bill Otis,

It is the Holiday season. Your are 75-years-old. Do you really have nothing better to do than engage in pathetic, sarcastic sniping on a comment board and try to uphold the dated "old, mean, retributive, white guy" point of view. Give it a break. Merry Christmas to you and yours.


Posted by: Alex | Dec 22, 2021 8:02:05 PM

Alex --

I also swear I didn't pay you to toss race into the pot. Of course I didn't have to pay you, since it was a good bet that one of you from the Crime-Is-Cool contingent would toss it in for free, as usual.

Posted by: Bill Otis | Dec 22, 2021 10:09:38 PM

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