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.


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.