by Dale Chappell

The million-dollar question lately has been whether the thousands of federal prisoners released on home confinement to reduce prison crowding would have to return to prison once the pandemic is over. While it’s not looking so good for those sitting at home waiting for the answer, let’s take a look at how things got to this point and what some of the experts are saying.

It was a smart move: release low-level, non-violent federal prisoners to home confinement in order to reduce the population of the 122 federal prisons in the wake of COVID-19 spreading among staff and prisoners at a steady pace. But the move was made possible only after Congress created the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which expanded the authority of the U.S. Attorney General to allow the Federal Bureau of Prisons (BOP) to release prisoners to home confinement, no matter how much time they had left to serve. Prior to the CARES Act, the BOP could release prisoners to home confinement only during the last six months or ten percent of their sentences, whichever was less.

But the CARES Act contains some tricky language. It says that the BOP may place a prisoner in home confinement only during the “covered emergency period,” which it defines as 30 days after whenever the declared national emergency over COVID-19 ends. The Department of Justice (DOJ) issued a memorandum just days before President Trump left office on January 19, 2021, saying that the BOP would have to return those prisoners on home confinement when the covered emergency was over. It interpreted the 30 days as Congress giving time for the BOP to return those on home confinement back to prison.

But according to over a dozen members of Congress who voted the CARES Act into law, that interpretation is dead wrong. “Obviously, if they can stay where they are, it’s going to save the taxpayers a lot of money, and it would also help people who aren’t prone to re-offend and allows inmates to successfully re-enter society as productive citizens,” Sen. Chuck Grassley said about the DOJ’s memo. He pointed out that of the nearly 24,000 prisoners released to home confinement, only 151 had violated the terms of their release. Some reports say the number is much lower. If followed, the DOJ’s memo would require the return of up to 8,000 prisoners.

Some experts say this was a “radical experiment” in prison alternatives. “This was the boldest home confinement experiment in federal prison history,” Prof. Doug Berman, of the University of Ohio Moritz School of Law, said on his popular Sentencing Law and Policy blog. “Congress should use what happened here as evidence for expanding home confinement going forward.”

President Biden stated throughout his campaign that he would work to reduce mass incarceration—which he helped fuel for decades as a senator between the 1970s until he left office in 2016, having authored, sponsored and proudly voted for hundreds if not thousands of “anti crime” bills that created more crimes, lengthened sentences and reduced prisoners’ ability to challenge their convictions or conditions of confinement. While running for president though, he gave a tepid and lukewarm repudiation to his prior half century role in building the mass incarceration machine in America. “Reducing the number of incarcerated individuals will reduce federal spending on incarceration,” his campaign website read. “These savings should be reinvested in the communities impacted by mass incarceration.” Now people are calling on Biden to live up to his word and use his clemency powers to allow these people to stay out of prison. But that’s unlikely.

As of July, the Biden legal team said that the DOJ’s memo was correct. That means those on home confinement will have to return to prison once the pandemic ends. That also means that either the Executive or Legislative Branch needs to step up and do something. The New York Times reported that the Biden Administration is “wary of a blanket mass commutation” because it would be an “extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.” In other words, Biden’s afraid of pulling a Mike Dukakis move, when the Massachusetts governor released convicted murderer Willie Horton on a weekend furlough, who then went on to commit robbery, assault and rape. Dukakis lost his bid for the presidency when Bush used this against Dukakis during the campaign after Democrat Al Gore raised it in the primary.

In August 2021, Prof. Berman suggested another approach: “Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic,” he wrote on his blog. “This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of [criminal justice reform] legislation.” He also suggested that compassionate release could be another fix to the problem, since Congress has now allowed prisoners to file compassionate release motions under the First Step Act of 2018. That, he said, could be a fix involving the Judicial Branch.

In short, there’s lots of talk about keeping the thousands of federal prisoners released to home confinement out of prison. The almost non-existent recidivism rate of the 24,000 prisoners sitting at home instead of prison shows that this “radical experiment” in prison reform worked exceptionally well, experts say. But to date, none of the three branches of government has taken any steps to fix the problem. And any of those three branches could fix the problem. Inexplicably, they choose not to. The good news is in the meantime, no one is being returned to prison. Perhaps inertia will carry the day and with the passage of time, more prisoners complete their sentences winnowing down the number that can be returned. 

Sources: reason.com, reuters.com, thehill.com, nytimes.com, sentencing.typepad.com, forbes.com

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