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Last-Minute DOJ Order Clears Way for Possible Return of Home Confinees to Prison

According to the memo, if the U.S. attorney general determines that the emergency no long impacts the federal Bureau of Prisons, that agency will be “required to recall” released prisoners who have not yet reached the six month or 10% threshold of time remaining on their sentences.

Most federal prisoners released to home confinement have been fitted with ankle bracelets, and closely supervised by U.S. Probation officers, who must give approval for all prisoner movement outside their homes. Prisoners who do not comply with those restrictive requirements risk being returned to either halfway houses or prison.

According to DOJ attorney Jennifer Mascott, author of the opinion, the “BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.” This was not well-received by either affected prisoners and their families, as well as criminal justice advocates.

One of those advocates, Kevin Ring, president of Families Against Mandatory Minimums, said, “It was shocking to have them do that on their way out the door quietly,” he said “The ramifications would be enormous — not just for the families of the people, of course, but also the bureau, and the probation office, having to figure out the logistics of sending people back. It just didn’t make sense.”

The memo was released at a time the DOJ was without a confirmed attorney general, William Barr having left office before Christmas, and was being led by an acting attorney general. Although technically issued at the close of the Trump presidency, it was authored by a career employee while White House staff was preparing to leave their posts.

However, it is likely that the federal prisoners currently on home confinement may not be returned, given that thousands of them are still ill with COVID-19, and the BOP apparently is fumbling its response to the pandemic. For example, over 200 prisoners at Federal Medical Center for women at Carswell, outside Fort Worth, Texas, tested positive, and at the Federal Medical Center for men in Rochester, Minnesota, more than 400 were afflicted.

Regardless, with the Biden administration settling in, some experts think it is unlikely to permit a return of prisoners to prison. As noted by Inimai Chettiar, federal director for the Justice Action Network, “If people are already out on home confinement, and they’re home with their families, and they’re not committing new crimes, and they’re following all of the protocols of being on home confinement, then it does seem cruel and unnecessary and unreasonable to force the BOP to bring them back to prison.” 



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