The Department of Justice recently determined that federal inmates on home confinement pursuant to the CARES Act must return to prison when the pandemic is over. Unless the DOJ changes its position, Congress will have to pass a law or the Biden administration will have to issue mass sentence commutations to avoid sending thousands of people back to prison after spending months back in their communities.
The CARES Act allowed the BOP to release thousands of inmates to serve their sentences at home based on the COVID-19 pandemic. The BOP implemented strict criteria for who was eligible for early release, such as requiring that eligible inmates serve a certain percentage of their sentence or have pre-existing conditions making them vulnerable to COVID-19. The BOP released almost 30,000 inmates to home confinement. While many of these inmates have since completed their sentences at home, almost 8,000 remain on home confinement.
In the last months of the Trump administration, the DOJ issued a memorandum stating that the BOP will have to recall those inmates back to prison when its emergency powers under the CARES Act end. The incoming Biden administration pledged to review the memorandum, as advocates argued that the expiration of the emergency authorization would only apply to inmates prospectively, and inmates already on home confinement could finish their sentences that way.
The Biden administration ultimately agreed with the Trump administration. As such, thousands of inmates are facing the prospect of returning to prison after, in some cases, over a year back in their communities. Many are working, taking care of dependents, and continuing their quests for rehabilitation. Unless the DOJ switches source, the only way to prevent this outcome is for Congress to pass a law expanding home confinement or for the Biden administration to start issuing mass commutations.
