DOJ reverses Trump-era pandemic home confinement policy

Attorney General Merrick Garland announced on Tuesday that the Department of Justice would allow some prisoners who were released to home confinement during the pandemic to stay out of prison, reversing a legal stance adopted in the last days of the Trump administration.

 

“Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules,” Garland said in a statement. “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.”

 

Garland cited a memo from the DOJ’s Office of Legal Counsel (OLC) released on Tuesday that found that the relief bill enacted in the early days of the pandemic known as the CARES Act authorizes the department to use its discretion in allowing those on home confinement to stay out of prison.

 

The new memo overrides the legal position that had been in effect since January, which was that the thousands of inmates on home confinement must be returned to prison once the pandemic was declared over.

 

The Biden administration had been facing pressure for months to reverse the position and avoid re-incarcerating people who had spent months reconnecting with their families and integrating back into their communities. Some criminal justice reform advocates had called on President Biden to use his clemency powers to avoid a mass influx of returning prisoners.

Kevin Ring, the president of Families Against Mandatory Minimums, applauded the DOJ’s reversal on Tuesday.

“This is excellent news for thousands of people and their families to get before the holidays,” Ring said in a statement. “There is no way the people on CARES Act home confinement should have been sent back to prison, and we are very grateful to the Biden administration for fixing this mistake. We hope clemency remains on the table for those who no longer warrant home confinement. But for now, today’s decision will ease a lot of concerns and fears.”

In the memo released Tuesday, the OLC said it gave deference to the Bureau of Prisons’ (BOP) interpretation of the law and what corrections officials believed was the most practical way forward.

“BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry,” the memo reads. “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.”