Clemency

Only Biden or Congress Can Prevent 4,000 Inmates From Being Forced Back Into Federal Prison Post-COVID

The CARES Act allowed home release of nonviolent inmates during the pandemic. But after it's over, many will have to go back unless their sentences are commuted.

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Some 4,000 federal prisoners temporarily released during the COVID-19 pandemic will have to return to serve out their sentences once the emergency has ended unless President Joe Biden commutes their sentences or Congress passes a new law, administration legal experts have determined.

The New York Times reported Monday that after reviewing all its options, the Biden administration has determined there's no current legal way for these released inmates to remain free on home confinement once the pandemic emergency has officially ended. They will have to return to prison a month after the federal emergency ends.

These inmates were freed from federal prison under the 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed into law during President Donald Trump's final year in March 2020. The CARES Act allows the Bureau of Prisons (BOP) to extend the amount of time a prisoner may be placed on home confinement during an emergency that affects the prison system, and the COVID-19 pandemic certainly qualified.

That authority ends when the emergency is formally ended. The Trump administration's Department of Justice (DOJ) sent out a memo in the last days of his presidency that any inmates who were released to home confinement under this authority will eventually have to return to prison.

There's been a push by criminal justice reformers and civil rights activists to try to get Biden's DOJ to rescind this memo and allow these 4,000 inmates to remain in home confinement. But sources within the Biden administration told The New York Times that the memo is correct. The BOP does not have the legal authority to just decide on its own that felons who have been sentenced to prison terms can continue to serve at home, no matter how well they've behaved.

There are two options: either Congress can pass a law allowing these people to continue or Biden can use his presidential clemency powers to commute their sentences. Biden is now being pushed by a coalition of 20 criminal justice reform activist groups to take action. They released a letter on Monday reading in part:

President Biden, we ask that you use your power of clemency to commute the sentences of people living in home confinement due to the CARES Act and prevent this impending crisis. We ask that you issue an order that contains a presumption that all people in home confinement under the CARES Act will have their sentences commuted, unless the Bureau of Prisons can prove an articulable and current threat of violent harm.

On the campaign trail and during your presidency, you have spoken about the importance of second chances. This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.

The letter is signed by organizations that straddle the political divide, from the familiar American Civil Liberties Union and NAACP, to the more conservative FreedomWorks and Right on Crime, as well as the libertarian R Street Institute.

The Times notes people in Biden's camp are reluctant to pull off a mass commutation due to fears "it could create political risks if any recipient who would otherwise be locked up commits a serious crime."

But as the letter notes, it's been 16 months since the CARES Act was passed and less than 1 percent of the people have violated the terms of their release. The Washington Post reported in June that only five of these people had committed new crimes.

"The Biden administration can fix this," said Holly Harris, president and executive director of the Justice Action Network, in a prepared statement. "Yet for months, they've kept these 4,000 people and their families twisting in the wind, unable to fully connect with their families, find employment, and contribute to their communities. It's cruel, it's wasted tax dollars, and it doesn't make us any safer. It's time for President Biden to grant clemency to these men and women and keep them home."

The resistance to act, despite Biden's campaigning on criminal justice reform, is not unlike his silence on capital punishment since getting elected. He campaigned on a newfound opposition to executions but has remained quiet on the issue since actually getting elected. Attorney General Merrick Garland recently announced a moratorium on federal executions, but at the same time is submitting arguments to the Supreme Court to maintain the authority to seek the death penalty for capital crimes that they've prosecuted. The federal death penalty remains; they're just opting not to actually execute anybody, for now.

Biden could commute the sentences of people on federal death row but has not. It's almost as though he wants criminal justice reform to happen without him actually having to stick his own neck out at all. He wants criminal justice reform bills to be passed, and to be clear, this is good. It's much better for Congress to actually change the laws and penalties to make them less harsh so that we don't have to rely on executive discretion.

But this discretion is a legitimate expression of executive authority under the law as well. If people in home confinement aren't showing themselves to be dangerous to their communities, this should be taken as an indication that there's no actual criminal justice purpose being served by putting them back in prison cells once the pandemic is declared over.

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  1. “The CARES Act allowed home release of nonviolent inmates during the pandemic. But after it’s over, many will have to go back unless their sentences are commuted.”

    So this is a thought experiment.

    1. So this is a thought experiment.

      You’re being generous.

    2. Yeah, they’re in luck, because the emergency will never end.

  2. “He campaigned on a newfound opposition to executions but has remained quiet on the issue since actually getting elected”

    That’s because it’s a non issue with the DOJ, who have no intention of doing anything to end their sentencing powers.

    Witness the 8 month sentence for walking around the capitol and senate chamber carrying a flag, which reason koch has barely mentioned along with individuals being held as political prisoners without trial. You all spent more time worrying about terrorists at Gitmo.

    1. This is a very legitimate point. Held without bail for half a year for trespassing? Expanding capital police authority to the entire country? A military occupation of the capital? And not a peep from the libertarians?

      1. Reason had done multiple articles on all of those subjects.

        1. Not in a meaningful way. But you knew that.

        2. Oh come now. No they haven’t. They merely discussed the facts of the case. They didn’t come out with a blistering screed accusing Biden of authoritarian fascist totalitarianism. That is how you know Reason is actually pro-Biden.

          1. Are you two in competition for who can create the dumbest strawman argument?

          2. Dude, you couldn’t be more wrong. Republicans are “mere” authoritarians while Democrats are the complete totalitarians. So anyone who supports Democrats in any way supports totalitarians. I mean, if you support police reform then you support totalitarianism. But support for authoritarian Republicans isn’t support for authoritarians or authoritarianism. You see, it’s different. That’s why we should all vote for authoritarians, I mean authoritarian Republicans, I mean Republicans. Because if you don’t think “authoritarian” while you support them then you’re not actually supporting authoritarianism.

            1. It really is reverting to pure tribalism isn’t it?

            2. Please stop helping.

        3. In fact, this is the only argument that addresses it.

          https://reason.com/2021/07/08/the-capitol-police-will-open-offices-in-the-states-to-investigate-threats-to-members-of-congress/

          Far more of reason’s articles repeated the horror and insurrection and 5 deaths directly caused by the riots. And then blamed their own failure of reporting the death by fire extinguisher as being the fault of government and not their failure to do basic journalistic practices.

          But you knew that.

        4. As far as I can recall, they only mentioned the unarmed protestor who was shot by the police on public property one time, even though Reason is typically very good at publicizing when police use excessive force.

      2. And not a peep from the libertarians?

        Plenty of complaints from libertarians.

        Reason simply isn’t a libertarian publication.

  3. I’m not sure violence is the only good reason to put someone in prison.

    https://en.wikipedia.org/wiki/Bernie_Madoff

    That’s just one example. People’s lives are ruined by fraud.

    1. I wonder what the author thinks should be done about people who were non-violent offenders but still committed crimes with a whole lot of identifiable victims.

      ‘Nothing’ seems to be the answer. I guess if you don’t physically attack someone, it should just be legal across the board? Seems like a pretty juvenile way of thinking.

      1. This makes perfect sense because most of them are committing non-violent crimes.

        1. If you’re referring to Reason columnists, I’ll agree– most of their articles the last few years amount to non-violent crime.

      2. There are two options: either Congress can pass a law allowing these people to continue or Biden can use his presidential clemency powers to commute their sentences.

        The author doesn’t even consider the “option” that non-violent crimes against others should have to serve a prison sentence.

        Ken hits this dead-on. UN-Prosecuted non-violent crime is just another way of saying criminals get a free pass.

    2. (my favorite counter-argument) one man’s fraud is another’s lack of diligence.

  4. I don’t understand the “we let them out for a while because of an emergency and now it is evil to make them go back” argument at all.

    Either the sentence was just or it wasn’t. Walking around free for a bit in the middle does not change that math at all.

    1. I would argue that if they were such a non-danger that they could be released, then perhaps we should revisit the sentencing for these non-violent crimes.

      1. Revisiting sentencing in general is a great idea.

        Revisiting the sentencing for each indidivual in this situation is a great idea.

        But the ‘problem’ is not that they have to go back now that the emergency is up and the solution is not just ‘blanket pardon for everyone’.

        1. Disagree. This is exactly why the pardon authority exists. From Federalist 74

          Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

          Biden should grow a set of balls, grab them, use some political capital – and act like a President.

          1. Specifically – the outcome here is that by using that executive power of clemency, it would actually force the legislature to review sentencing. Absent that – nothing happens.

      2. If they committed non-violent financial crimes like fraud, they should be freed immediately so they can start earning money to pay restitution to their victims, instead of costing taxpayers more money.

    2. Well said Cyto..

    3. Undoubtedly many of these people were in prison for bullshit (drug war) crimes. But I don’t see how a blanket pardon of a select group that got lucky when a flu popped up during their sentence solves anything. What about those that came before and those that will come after? This is an opportunity for politicians to virtue signal while dumping a few more billion on the DEA in their next continuing resolution.

    4. Either the sentence was just or it wasn’t. Walking around free for a bit in the middle does not change that math at all.

      Given that the US has more prisoners per capita than anyone else in the world – including Cuba or Russia or Iran or China – and we are inherently NOT more violent or more ‘criminal’ than most countries – the prima facie presumption should be that all sentences in the US are unjust.

      The fact that we are seemingly incapable of really rationalizing sentences on the individual merits of a case reinforces that presumption. Our sentences are based on – because this is the sentence that’s why.

  5. But after it’s over, many will have to go back unless their sentences are commuted.

    Yes?

    I mean, you can say that any individual sentence was unjust but . . . being let out for Corona was a mercy, now that’s done, they did what they did – back to jail.

    1. But as the letter notes, it’s been 16 months since the CARES Act was passed and less than 1 percent of the people have violated the terms of their release. The Washington Post reported in June that only five of these people had committed new crimes.

      Well, let them all out then. I’m pretty sure they’ve all learned their lessons. Defund the police.

      1. If the recidivism is as purported then I’m not seeing the utility in returning them to jail. The tough on crime = longer sentencing is idiotic if not perverse.

        That said the people pushing this also excuse every parole violation so…

        All around criminal justice reform is more about appearing busy rather than addressing the problems.

      2. “…only five of these people had committed new crimes.”

        Only five have been caught.

        1. Exactly. Can they tell us that these people were in their homes during the rioting? What did they do to support themselves?

  6. they were safer from covid in jail should have kept them there. BTW there were few released her were not violent felons at least in California since we don’t jail anyone for doing anything under $900.00 no matter how many times they do it

    1. nope, jails had the highest rates of infection after nursing homes. and counties with jails at the highest rates of infection nationwide.

      1. They had the highest rates because, once infected prisoners bean to be released, the ones left did everything they could to pass it on to each other, so they would get out, too.
        There was no better place than prison to routinely screen the inmates and have the ability to quarantine an infected one, but the left used this as an excuse to put more criminals on the street, just as they have with the “no bail” policies.
        The idea that these freed criminals didn’t return to crime, and be part of the unprecedented crime wave we are seeing, is idiotic.

  7. >> he wants criminal justice reform to happen without him actually having to stick his own neck out at all.

    lol your tea leaves have a false premise.

  8. Won’t someone think of the convicted criminals!? Besides, we need that prison space available to put people who won’t get the vaccine. /s

    1. where are we going to put everyone who attempts to post misinformation then?

      1. In DC, they just refilled the jails with the “insurrectionists”, who weren’t even given the consideration they gave to real criminals.

  9. If they all end up getting commuted, that may make authorities hesitate in future when a pestilence threatens prisoners.

    “Last time, we let people out on ‘compassionate’ grounds due to an epidemic, and they never went back to prison even after the epidemic abated! Maybe we should be more hesitating about these compassionate “temporary” releases…”

  10. There was/is a push to get a guy out of prison in New York. He was touted (I heard about it on NPR) as one of those ‘non-violent’ criminals. When someone actually looked into the case, it turned out that he was the head of the largest heroin dealing gang in Harlem. And although he was not charged with the particular crimes – because they’d be hard to prove – he certainly would have given the orders to murder 8-9 people. At least. There’s your ‘non-violent offender.’

    They were put in prison for a reason. When they’ve served their time, let them out. In the meantime, either lock them up or just stop enforcing the laws.

    1. Many of the “non-violent” crimes, for which these criminals were imprisoned, were the crimes they plea-bargained down to, for a quick entry into the prosecutors’ conviction stats, while real victims were harmed by what took place.
      A non-violent crime conviction doesn’t mean the criminal wasn’t violent in what they did.
      Plea-bargaining distorts the reality of the crime.

  11. Only Biden or Congress Can Prevent 4,000 Inmates From Being Forced Back Into Federal Prison Post-COVID

    And why should Biden or Congress do that? These people are in prison for a reason.

  12. Gosh, criminals might have to serve their sentences. I’m looking everywhere for my outrage, but I can’t find it.

  13. Biden could deschedule marijuana and expunge the sentences of all in prison for non-violent drug crimes, but I’m not betting on it. I expect that Democrats are more comfortable with releasing arsonists and vandals engaged in peaceful protest.

  14. Are we really at the point of debating whether convicted criminals should go to jail?

    1. Only in the sense that some extremely online people are actively trying to open the jails and abolish the police like some sort of even-lower-writing-budget Purge derivative.

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