The question in the title of this post is what I keep wondering as days pass since I saw this FAMM press release from last Friday and yet still fail to see any updated official information from the Department of Justice or the the Bureau of Prisons. The FAMM press release, dated April 16, 2021, starts this way (my emphasis added):
FAMM President Kevin Ring released the following statement in response to the Department of Justice (DOJ) releasing a memo expanding the criteria for home confinement.
“We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement,” Ring said. “The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.
“We are extremely disappointed, however, that the administration has not rescinded or overruled the legal memo that could force people on home confinement back to prison when the pandemic subsides. Thousands of families are rightfully anxious that they will be separated again soon. We worry that today’s announcement will result in more families being in the same boat.”
I understand why the FAMM release expresses concern that the Biden Administration has not yet addressed the worrisome OLC memo discussed in this post that would require returning some folks to prison post-pandemic. But, in the short term, I am quite concerned that an important memorandum expanding the criteria for home confinement seemingly has not yet been made widely publicly available.
Notably, on this DOJ coronavirus page, there is no link to or any reference to a new DOJ memo on home confinement criteria. And this BOP COVID page still states expressly that "eligibility requirements for an inmate to be considered for Home Confinement are set forth in the Attorney General's March 26 and April 3, 2020 Memoranda." Given these webpages, one might say that DOJ and BOP are now not just guilty of a lack of transparency on an important matter of public concern, but they are actually provding misleading information about what the current home confinement criteria are right now.
Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement. It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making. And, most fundamentally, it is problematic for the American people who have every right to expect and demand that consequntial criminal justice decisions by government actors will be transparent and clear, not hidden and opaque.
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