The Volokh Conspiracy

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Biden OLC Reverses Trump OLC Opinion On BOP Home Confinement

Under "intense pressure," Attorney General Garland asks OLC to reconsider its views.


During the pandemic, the Bureau of Prisons placed about 4,000 prisoners on home confinement to prevent the spread of COVID-19. But what happens when the emergency concludes (if it ever will)? On January 15, 2021, the Office of Legal Counsel concluded that BOP's authority under the CARES act does not permit home confinement after the emergency concludes. According to the OLC opinion, BOP would have to recall prisoners to correctional facilities when the pandemic ends.

This opinion was extremely unpopular among criminal justice advocates. And there was a sustained lobbying effort for the Biden administration to rescind the OLC opinion. For some time, those efforts were not effective. In July, the New York Times reported that the Biden Administration concluded that the Trump OLC got it right:

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations. Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

Still, the lobbying continued. The Times revealed that Garland was personally lobbied by Senator Dick Durbin:

Criminal justice advocates and some lawmakers — including Senator Richard J. Durbin, Democrat of Illinois Democrat and the chairman of the Judiciary Committee — pressed the new administration to reverse course. But in July, The New York Times reported that Biden administration lawyers had decided that the Trump-era memo had correctly interpreted the law.

During a trip to Chicago days later, Mr. Durbin lobbied Mr. Garland to become personally involved, according to a person familiar with the matter. The next month, administration officials characterized the previous assessment as a preliminary review and said that a more formal one was underway.

Right. A "preliminary review."

At the time, Georgetown Law Professor Shon Hopwood opined that it would be a "risky" move for Biden to order Garland to rescind the memo.

As late as Thanksgiving, the administration still had not changed positions. The President of Families against Mandatory Minimums called on Biden to rescind the memo, and his organization protested outside the White House.

On November 30, criminal justice advocates turned their focus on Susan Rice, the Times reports:

Criminal justice advocates, deeming those plans inadequate, on Nov. 30 pushed White House officials including Susan E. Rice, the domestic policy adviser, to reconsider the Trump-era memo.

At some point, presumably in the last few weeks, Garland asked OLC to reconsider its views:

A Justice Department spokeswoman confirmed that the attorney general had asked the Office of Legal Counsel to reconsider its memo.

And reconsider OLC did. Politico explains:

Under intense pressure from criminal justice reform advocates, the Justice Department has reversed a Trump-era legal opinion that could have required several thousand federal convicts to return to prison from home confinement if the Biden administration declares an end to the pandemic-related national emergency.

The new opinion explains that Attorney General Garland asked OLC to reconsider. And OLC relied on a new BOP memo, dated December 10.

You have asked us to reconsider our earlier opinion. In the course of this reconsideration, BOP has provided us with additional briefing reflecting its consistent view that the CARES Act is "most reasonably" read not to require all prisoners to be returned to correctional facilities at the end of the emergency period. See Memorandum for Christopher H. Schroeder, Assistant Attorney General, Office of Legal Counsel, from Kenneth Hyle, General Counsel, BOP, Re: Views Regarding OLC Opinion, "Home Confinement of Federal Prisoners After the COVID-19 Emergency" dated January 15, 2021, at 2 (Dec. 10, 2021) ("BOP Memo-randum"). BOP further explained that home-confinement decisions have always been made on an individual basis, and that such an individualized approach betters serves penological goals and accords with expectations about how home confinement has been administered.

The timing of the BOP memo suggests that the post-Thanksgiving push worked. Under pressure, the administration has mustered up new views that justified a presidential reversal. (I described this concept in my article Presidential Maladministration).

Now, OLC argues that the Trump Administration did not properly invoke the major question doctrine:

Our prior opinion argued that if Congress had "fundamentally altered the structure of home confinement" in a way that might permit multi-year home-confinement placements, it would have been more explicit about doing so. Home Confinement, 45 Op. O.L.C. __, at *6 (citing Whitman v. Am Trucking Ass'ns, 531 U.S. 457, 468 (2001), for the proposition that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions"). But we are less convinced that multi-year placements would entail a fundamental alteration of home confinement, and it equally could be contended that, if Congress had intended an unprecedented and penologically unjustified mass recall of prisoners from home confinement, it would have said so.

OLC explains that the office does not lightly deviate from its precedents. But here, the circumstances were warranted–especially in light of BOP's new memo.

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history—and a careful consideration of BOP's analysis of its own authority—we conclude that the better reading of section 12003(b)(2) and BOP's preexisting authorities does not require that prisoners in ex-tended home confinement be returned en masse to correctional facilities when the emergency period ends

Garland, now persuaded by the new analysis, called Durbin and others on Tuesday. According to the Times.

Mr. Garland called Mr. Durbin and inmate advocates on Tuesday to inform them of the reversal.

Holly Harris, the president and executive director of Justice Action Network, a bipartisan criminal justice reform group, hailed the change. Mr. Garland said in a conversation with her that the new opinion was the legally correct conclusion; she called it a morally correct one.

Moreover, Garland called on BOP to codify the policy in a new rule-making.

In light of today's Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.

OLC expressly stated that BOP's position was entitled to Chevron deference during litigation.

Even if the statute is considered ambiguous, BOP's view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.

The litigation here will be messy. A court ruling against BOP would force people who have already embedded themselves in society to report to prison. The sorts of reliance interests at issue in the DACA case would be present here as well. This move by Biden will likely survive by the force of its own inertia. We are seeing Presidential Maladministration at its worst.