In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends. I see that there are two more notable new press articles on this topic:
From The Hill, "Biden faces criticism for not extending home confinement for prisoners"
From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."
The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over. The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse. Here are excerpts:
President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic. Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends. They are frustrated that Biden's remarks this week didn’t address it....
Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....
The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus. Roughly 24,000 inmates since have been sent to home confinement.
In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence. Biden and Attorney General Merrick Garland could rescind that policy....
Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”
Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison. [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on. They are out because the Trump Administration felt it was safe enough to let them go home. What more cover does he need?” she said.
I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic. But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration. The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement. Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.
Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic. But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision! This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text. Put simply, this matter is a statutory problem that calls for a statutory fix.
I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action. But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock. Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.
Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here). Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills. But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation. But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.
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?
- Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?
- New detailed polling reveals broad support for broad use of clemency power to commute sentences
- 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
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