Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic

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 pandemic relief bill passed last year that authorized federal corrections officials to move inmates to home confinement as the coronavirus appeared ready to devastate prison populations.

“Time is of the essence,” the letter reads. “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.” 

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.

A DOJ spokeswoman did not immediately respond when asked for comment. 

Around 4,000 inmates currently on home confinement have been facing uncertainty about their futures as the Biden administration has said little about whether it intends to keep in place its predecessor’s legal memo. 

Last month, The New York Times reported that the administration had concluded it must abide by the OLC’s memo, which was issued just days before President Biden took office, but neither the DOJ nor the White House has announced publicly how it intends to proceed. 

Many criminal justice reform advocates have proposed ways to keep those in home confinement out of prison without revoking the memo, such as issuing clemency to everyone in the program or having the DOJ sign off on compassionate release motions. 

The groups that signed on to the letter on Wednesday said they support those alternatives, but stressed that the administration’s hands are not tied when it comes to the memo that’s currently in place.

“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.”