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Biden Administration Signals That Federal Inmates On Home Detention Will Return To Prison

The New York Times reported on Monday, citing officials, that President Joe Biden’s legal team has determined that thousands of federal inmates who are currently on home detention will be returned to prison a month after the state of emergency for the pandemic ends. Nobody knows when that will be.

Since April 2020, nearly 5,000 inmates in federal prison have been transferred from prison to home detention as part of a state of emergency established by then-Attorney General William Barr. The purpose of the initiative was to move more vulnerable inmates from the highly contagious prison environment to home. To be eligible, inmates had to meet certain security requirements, have good behavior in prison and not pose a threat to society.

Federal Inmates could be returning to prison after the pandemic is declared over.

This issue of returning inmates back to prison has been brewing for months. In October 2020 I wrote that some Assistant US Attorneys were nonchalantly tossing around the fact that those on home confinement were to return to eventually prison. After that the story went live, Family Against Mandatory Minimum’s president Kevin Ring contacted me to say that his contacts in the White House said that there was no intention of ordering inmates to return to prison and that they would be allowed to serve their remaining time of their prison sentence on home detention. Then, a few months after that in January 2021, just weeks before President Donald Trump’s presidential term was drawing to an end, his legal team issued a MEMORANDUM OPINION FOR THE GENERAL COUNSEL FEDERAL BUREAU OF PRISONS on whether inmates would return to prison. There was outrage in the legal defense community and it was almost a foregone conclusion that a more liberal-minded Joe Biden would certainly intervene. Until today, the Biden administration has remained silent on the issue.

The position of both administrations seems odd when the program has been such a success. When BOP Director Michael Carvajal testified before both the House and Senate in March and April 2021, he stated that of the 20,000 on home detention (CARES Act plus those on home confinement because they were near the end of their prison term) there had only been 20 individuals returned to prison institutions as a result of violations. That’s a 99.9% success rate.

Thousands of inmates have returned home, have jobs, have reintegrated with their families and now might have to return to prison. The real issue, heartache, is for those who have years to serve on their prison terms ... some more than 3 years. If inmates are to return, the BOP will be asked to make a judgement call on whether some will just continue on home confinement because it might not make sense to return them to prison ... too few months remaining.

The National Association of Criminal Defense Attorneys (NACDL) issued a statement from its President Christopher W. Adams, “There is absolutely nothing standing in the way of President Biden commuting the sentences of the approximately 4,000 individuals in CARES Act home confinement. The President should act with all deliberate speed to ensure that these individuals are not removed from their homes and communities in the middle of their re-entry process. While granting clemency to these individuals by commuting their sentences won’t change the fact that the United States is the world’s leading incarcerator, it would be a powerful signal that the administration is prioritizing criminal legal system reform, second chances, and the importance of a robust executive clemency power."

The issue has been lingering for months. Those inmates who are on home confinement, despite the green light given by Attorney General Barr, worked hard to get on home confinement. The BOP has pushed back on inmates, even sick inmates, from going on home confinement. This forced thousands of inmates to seek relief from the effects of COVID by asking for Compassionate Release through the federal courts, something usually reserved for those with grave, terminal illnesses. While some were successful, many were not. The American Civil Liberties Unions in regions across the country also filed civil litigation asking the BOP and some institutions claiming that agency was not doing enough to place inmates on home confinement. Little by little, the BOP has released more inmates under the CARES Act but it has not been without a fight.

U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee issued a statement on the matter stating, “Individuals on CARES Act home confinement have posed no threat, and are already reintegrating into society, reconnecting with their families, and contributing to our economy. I have repeatedly urged the Department of Justice to rescind a Trump-era legal opinion that would needlessly force thousands to return to prison. If this opinion is not withdrawn, the Biden Administration must use other legal tools – like compassionate release and clemency – to ensure that no inmate who has successfully transitioned to home confinement is returned to prison.”

U.S. Senator Cory Booker (D-NJ), Chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism said, “The Trump-era’s Office of Legal Counsel opinion that will require incarcerated individuals return to prison once the public health emergency ends serves no public health purpose and only works to unnecessarily incarcerate people who have succeeded in re-entering society. I am deeply troubled that the Department of Justice has not rescinded this opinion as we previously requested and urge the Department to reconsider our request. If the Biden Department of Justice feels this is not possible, then other legal means must be considered to ensure that these individuals are not sent back to federal prison.”

The Biden administration should act on this and allow those inmates on home confinement, who are all in compliance, be allowed to complete their sentences at home. In fact, the program should be expanded to allow even more inmates to serve their time in prison at home.

Article source: forbes.com