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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.

NEXT: The Case for an "Immigration Freedom Amendment"

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  1. Really, what practical difference does it make to the prisoner whether his home confinement is extended by a legal interpretation or a Presidential clemency decree?

    (and when exactly is the end of the emergency going to happen? Or will this remain a strictly theoretical issue?)

    1. Your question was pre-answered.

    2. It makes no practical difference to the prisoner, but it would likely make a political difference to the President who commuted the sentence of someone who then committed a crime. This way some faceless bureaucrat at the Bureau of Prisons can be blamed.

      The "emergency" refers to the declaration of an emergency by President Trump in March 2020 under the National Emergencies Act and renewed by President Biden in February 2021. It will "end" when a President declares it has ended and revokes the declaration or fails renew it annually. Alternatively, Congress could do it, though this is less likely as it would probably have to override a presidential veto.

      1. Thank you - I had kind of guessed the part about not wanting his signature on a clemency order for someone who goes and commits a new crime.

    3. For one thing, a prisoner on home confinement can be returned to prison for bad behavior, while a person whose sentence has been commuted cannot (unless that bad behavior is a new crime, of course).

      1. "For one thing, a prisoner on home confinement can be returned to prison for bad behavior, while a person whose sentence has been commuted cannot (unless that bad behavior is a new crime, of course)."

        What about conditional pardons? The greater includes the less - the President can give a full pardon - why not a lesser pardon on condition the pardonee behaves well during (say) home confinement?

        1. "Pursuant to my power to grant pardons for offenses against the United States, I proclaim that [name] will serve his sentence on home confinement instead of in prison, PROVIDED, that the Bureau of Prisons may require him to go back to prison if it decides that [name] has violated any rule applying to prisoners on home confinement."


          1. I think that would be perfectly constitutional.

            I think, ultimately, this is all about politics. Progressive officials and interest groups have been relentlessly pressing Biden to commute these sentences. But rather than risk the political heat of either commuting them or sending them back to prison (after the emergency ends), the administration has concocted this cowardly middle road of getting the Justice Department to change its prior interpretation of the law, which, yet again, calls into question the integrity of the Justice Department.

  2. Chevron was wrong.

    So is DOJ here. The scum need to be returned back to prison.

    If Biden wants, he could tell BOP to reprioritize returning prisoners, hoping that most will finish out their sentences without further trouble.

    Or he could commute.

    The option he doesn’t have is to redefine Congress’ will.

    1. m4,
      What do you mean by "reprioritize?" I'm not understanding what you mean, in re to these convicted people going (or not going) back to prison.

      1. The meaning seems obvious: Biden could direct the BOP to make returning convicts to prison a lower priority than, say, flossing the cat. For the fifth time that week.

  3. No one can seriously view this "reconsidered" opinion as anything other than caving to political pressure, and not some earnest new assessment of an opinion of legal interpretation.

    This new opinion is absurd. Before the CARES Act, the Bureau of Prisons could allow a prisoner to spend the lesser of 10% of his sentence or 6 months under house arrest. The CARES Act allows the BOP to extend this past the previous maximum of 6 months, apparently without limit. So, a prisoner sentenced to 50 years today could be released tomorrow to serve his final 49+ years at home. But the same prisoner sentenced to 50 years the day after the emergency declaration ends, will have to serve 49 years and 6 months before he is eligible for home confinement. Can anyone claim, with a straight face, that was the intent of Congress?

    Sure, it may seem "unfair" to bring a prisoner back to prison, but I imagine if that same prisoner had been told, "We're going to let you go home for an indefinite amount of time, but you will have to come back here to complete your sentence. Or, alternatively, you can just stay here to serve your entire sentence," he would have enthusiastically chosen to go home.

    1. Can anyone claim, with a straight face, that was the intent of Congress?

      Who cares? What's the text of the law they enacted?

      1. Obviously, if the text were explicit on the point, no one would be debating the meaning. Perhaps the clearest hint, however, is the provision ending this new authority 30 days after the emergency is over. That would seem to create a 30-day grace period to re-integrate prisoners. If not, it would seem to serve no purpose whatsoever.

        Imagine a prison required asbestos removal, and Congress passed a statute that said, "During the period of the asbestos removal, the Bureau of Prisons shall house the prisoners in other facilities, including home confinement if necessary." Would any reasonable person read that to permit continued home confinement for decades even after the asbestos was removed? Or would it naturally be read to imply that the prisoners return after the asbestos removal, especially if the statute provided that the "BOP's authority under this provision expires 30 days after the asbestos is removed"?

  4. If you are genuinely worried about the duration of the pandemic, Prof. Blackman, instead of using that point as a partisan prop, why not use this space and your position to encourage the virus-flouting Republican hillbillies in your target audience to get vaccinated?

    1. Vaccination does nothing to prevent spread of the virus, so presumably it would not hasten the end of the pandemic. Please check your anti-science sensibilities at the door, Rev.

      1. Vaccination does nothing to prevent spread of the virus,

        False, of course.

        1. Sure, it does something. More for some diseases than others.

          Unfortunately, Covid seems to be on the "less" end of the spectrum, than the "more" end.

          I'd speculate that this is due to over-optimizing the vaccine in the case of a fairly mutable virus, but that's just speculation. The fact remains that the Covid vaccines do less to prevent subsequent infection and transmission than, say, the smallpox vaccine did.

          The problem is that it seems to be far enough on the "less" end of things that it's incapable of extinguishing the pandemic at levels of vaccination that are achievable without a major degree of coercion.

          A degree of coercion that's become politically infeasible thanks to the medical community burning through it's stock of precious credibility early on, by lying to people.

          1. This effort must extinguish the pandemic or screw it is becoming the go-to argument of conservatives.

            Never mind that it's a blatant false choice and chasing a goal that hasn't been a thing for like 8 months, since we discovered animal reservoirs.

          2. "A degree of coercion that's become politically infeasible thanks to the medical community burning through it's stock of precious credibility early on, by lying to people."

            You'll come up with any excuse necessary to avoid naming the actual reason.

            1. My favorite is the mask two-step:

              1. "I don't want to wear a mask! They don't do anything!"

              2. "The powers that be are dishonest because at the very beginning of the pandemic they lied and said that masks don't do anything!"

          3. A degree of coercion that's become politically infeasible thanks to the medical community burning through it's stock of precious credibility early on, by lying to people.

            Oh right, Brett. Blame anyone other than the idiots who won't get vaccinated.

        2. Vaccines certainly doesn't look like they're doing much to stop, or even slow down, the spread of the Omicron Variant. They do, however, seem to be making the severity of Covid-with-Omicron less than it might otherwise be (and Omicron is already pretty mild).

    2. That notorious red state of Rhode Island was highlighted on NPR this morning, reported as having a 75% vaccination rate, and yet the ER doctor they interviewed said they are being overwhelmed by COVID cases, worse than she has ever seen. I wonder what the public health authorities in that state did wrong? I thought 75% was a Fauci approved threshold.

      The interviewed doctor said patients are 30% vaxxed, 70% cases unvaxxed, deaths (numbers not reported) only among unvaxxed according to the doctor. We will never reach 100% vaccination, so I'm not sure how this will ever end, unless/until it burns itself out one way or the other over the next several years.

      1. Seems like your second paragraph answers your first.

        And you're buying into the 'who cares how many lives we save, eradication or nothing!'

      2. deaths (numbers not reported) only among unvaxxed according to the doctor.

        If that statement was correct, it must have been for an exceptionally narrow slice of time.

        Rhode Island's COVID portal doesn't appear to report so-called "breakthrough deaths" over time, but the current counts are 2967 total deaths and 120 "breakthrough" deaths.

        On September 27, the Boston Globe reported that RI had 2823 total deaths and 49 "breakthrough" deaths.

        Consulting the slide rule, that gives us 144 total deaths and 71 "breakthrough" deaths since September 27.

        So right at 50/50 over the period.

    3. Rev. Kirkland, you should be more forgiving to young Blackman Esq.. If you were to see the quirky little campus building where he teaches nestled at the base of downtown Houston's skyscrapers - home of the most powerful law firms in the city - you would better appreciate the sacrifices Blackman made by forswearing partnership in those firms to that of public service

  5. Maladministration. 🙂

    The stage is set.

  6. Regarding the last paragraph, what litigation will there be? Who would have standing to challenge the new interpretation?

    1. You beat me to it. I was wondering in all of Prof. Blackman's verbal masturbation where he came up with that idea.

  7. WOW!

    A politician doing what their constituency (or base of support in Trump terms) wants.

    I'm stunned.


    1. Sen. Durbin is Biden's constituency? Who knew!

  8. Either Prof. Blackman is unaware of how the relationship between the executive and legislative works in the modern era, or he's lying.

    Because Senators lobbying agencies for action is pretty normal. If the argument is that OLC is in somehow more independent than than organs of the executive, I'd like to see that argument rather than melodramatic panting.

    1. Sarcastr0 is typing, so he is lying. If he claims otherwise, I would like to see that argument rather than melodramatic panting.

      1. ". . . melodramatic panting."

        Why can you melodramatically pant yet Sarc0 can't?

      2. Saying something is pretty normal is kind of the opposite of melodrama actually.

        1. So make the argument that it is normal for OLC to reverse its stance on a question within a year of issuing an opinion and then affirming it, with those first two opinions being made by opposing presidential administrations.

          Otherwise, it looks like you were either blithely ignorant of what the OLC does, or were lying about it for the purposes of melodramatic panting.

          1. This would be an attack on the rule of law if this reversal had happened the other way, a Republican administration upending a Democrat OLC opinion. The one thing the norms people tell us is institutions like the OLC are not supposed to be subject to political lobbying. The law is the law, amirite?

            1. The one thing the norms people tell us is institutions like the OLC are not supposed to be subject to political lobbying

              Has anyone taken that seriously since the torture memo?

              1. Look, squirrel!

                Apparently they do take it seriously enough, since this topic is being debated here. But of course people are going to argue from their tribal position.

                Lawyers find gray areas to exploit, when there's reason to, that's just what they do (like a Geico commercial). I assume that's what is happening here that the OLC reversed itself by calling the prior opinion "preliminary". Seems like the same method was at work with the "torture" memo. We can debate morality, or we can debate legality, but the two are not always coterminous. What I have a hard time accepting is flip-flopping between them depending on which team is arguing it.

                1. I'm pointing out the current structure of the OLC. You're pointing to some ideal OLC that may or may not have existed 20 years ago.

                  You need to separate your 'is' from your 'ought'.

          2. That's normal for administrative agencies, I don't see it as abnormal for the OLC. Legal analysis is not some objective edifice that is inviolate.

            Maybe it shouldn't be that way, and the OLC should be independent, but after Bush and the right falling in love with the unitary executive, that ship sailed a while ago.

            1. Lobbying to change a legal opinion is different than policy lobbying. OLC says it is objectively reviewing the law. This is admitting its not true.

              Executive instructing subordinates is different from legislators lobbying as well. OLC answers to the AG who answers to the President who answers to the people. Congress's role is to pass appropriations for OLC and impeach.

              1. Bob, you're the one that say judicial opinions are just more politics. So legal opinions are political. Not one thinks otherwise.

                Also, you are making an ought argument and dressing it up as an is argument.

  9. Who even has standing to sue?

    Once one of them re-offends in a big way and kills people, which is inevitable, this will all go away.

    1. The States will have standing, as they will be impacted by higher crime rates.

      It's a shame that it will likely take people being murdered for this ill-conceived policy to be rescinded. But like all "reform" policies proposed by Democrats, it's less about good public policy and more about checking the diversity, inclusion, and equity boxes.

      1. I doubt a generalized increase in crime creates standing.

        1. In Massachusetts v. EPA (2007), several states challenged the EPA's determination that it did not have authority to regulate carbon dioxide emissions. The Supreme Court ruled that the states had standing. If the vague seven-degrees-of-separation claims of potential harm in that case can support standing, then a state in this case would probably have standing.

          Though I wonder if any state would bother to sue (unless one of these house arrestees kills someone or the like).

  10. "We are seeing Presidential Maladministration at its worst."

    It's almost as though Mr. Principles is ignoring the bar set by the previous administration because he's a partisan ass-clown.

    1. Watch it . . . Prof. Volokh has vanished comments and banned a commenter for far less a linguistic offense in the context of criticizing conservatives.

      Maybe the Volokh Conspiracy Board Of Censors is off the holidays, though . . .

  11. Everyone on all sides seems to concede that government is hopelessly broken. When the law is bad, every possible remedy other than actually changing the law is considered.

    When rights need expansion, every possible remedy other than amending The Constitution is considered.

    Where are the attorney protests? "The rule of law." is becoming increasingly meaningless.

    1. It's much easier and cheaper to convince a single, forum-shopped Federal judge than it is to convince millions of Americans and their elected representatives.

  12. "A court ruling against BOP would force people who have already embedded themselves in society to report to prison."

    REembedded. Report BACK to prison.

    It's not like they're taking people who had served their sentences, rounding them up, and throwing them in prison for no good reason. Rather, they're taking people who got a break from their sentences on account of an emergency, and requiring them to finish the remaining portion of the sentences they'd already been lawfully required to serve.

    If you evacuated a prison on account of a fire, would it make sense to say that the prisoners shouldn't be returned to it after the fire was extinguished? They should be satisfied they got a break!

    Oh, and maybe we should just admit that the "criminal justice advocates" are just "criminal advocates", unconcerned with justice.

    1. "If you evacuated a prison on account of a fire, would it make sense to say that the prisoners shouldn't be returned to it after the fire was extinguished?"

      Depends on whom you ask. Most "criminal justice" activists would object to putting someone in prison in every instance.

      1. I think you're nutpicking criminal justice activists. That's not an unknown position, but it's not like the main position of reformers.

        1. Which reformers? The ones who are in power, or the ones who aren't?

          The ones in power seem to fall into the "let them go" camp.

          1. Which is why there is no one in federal or state prison anymore.

            What reality do you live in?

            1. Which is why there is no one in federal or state prison anymore.

              Spare us, Mr. "oh, look at the dimwits arguing it has to be all or nothing"!

              You're such a situational contrarian clown.

              1. Find me someone in power who wants to stop putting people in prison, and just let them go.

                Because that's the thesis you're defending.

    2. Formalism without any thought of mercy is just cruelty under color of law.

      What function of justice would be served here? Sentences are already arbitrary, and the penal institutions we have are already crueler than they need to be for deterrence, removal, or reform.

      Oh, and the fire is still going on in your analogy.

      1. Biden can exercise mercy through his power to commute (federal) sentences, or to altogether pardon offenders, if he wants. The courts can exercise it during sentencing.

        The job of the Bureau of Prisons isn't mercy. It's carrying out the sentences handed down by the courts. Mercy is literally not part of their job. Exercising it is usurping the authority of the people whose job it is part of.

        They're doing it this way because Biden wants to exercise mercy, but he doesn't want any of the consequences pinned on himself.

        He's using the BoP as a designated fall guy, means for them to take the heat if this goes bad, if crime victims get mad about the people who victimized them not having to accept their penalty.

        Mercy is an option here, but it's not supposed to be the BoP or OLC's option.

        1. It further drags the BoP and OLC into the political mud. The OLC was transparently lobbied by Democrats into rescinding a policy they previously affirmed (under Biden no less!). The OLC then transparently told those same Democrats that they would be rescinding their previous decision as part of their lobbying.

          Even if you think that the new policy is wise and the old one is wrong, this is a bad look for the DOJ, BOP, and OLC. Being seen as toadies of the Democratic Party undermines what little trust remains in our federal legal system.

        2. Mercy is literally not part of their job

          Mercy is part of *everybody's* job. If there is discretion, using it to be humane is not an affront against justice - it is justice.

          That doesn't mean let out psycho killers, but it means you get to ask the question. I don't see how you can cut that out of any institution. That used to even be part of the brief of corporations till the 1980s.

          I don't see how this evades consequences. If something happens, do you not think this would be pinned on him?!!

          1. No, mercy is NOT literally part of everybody's job. Everybody's life, sure, but not job.

            As a prison guard, are you entitled to commute somebody's sentence? As a waiter, to hand out free meals to the homeless?

            This is the BoP usurping the rightful authority of other agents who ARE charged with this authority.

            1. If there is discretion I said. And you're now talking about a prison guard not doing their job. There are lots of ways a prison guard can be merciful in the course of their normal duties, that most would see as a way to do their job well. Rise above the temptation to dehumanize, and all that.

              Are you arguing the OLC here is acting outside their authority?

              1. Yeah, I'm saying that this is beyond their discretion.

                Sending the prisoners home when the prison catches fire is within the prison's discretion.

                Saying they don't have to come back when the fire is put out? Not within their discretion.

                As an emergency measure it could be justified. Emergency is over. That's why you've got to justify it as "mercy", if they still had an emergency justification you wouldn't have to resort to that.

                1. You've looked at the CAREs Act and concluded OGC doesn't have an argument here?

                  There is a law at issue here *grants* discretion. That's the legal issue here. Not your generalized bromides what BoP should be able to do based on your feelings.

                  1. This isn't really a difficult question. The CARES act says that BOP can ignore the normal time limits during the declared emergency period. Thst doesn't give it discretion ignore them after the emergency period, even if people now think that it would have been better to let them do so.

                    1. Having read the new opinion, it looks like they rely on existing discretion more than the CARES act, and that the CAREs Act ending of authority is specifically the authority to lengthen home confinement.

                      But yes, it is a pretty tangled analysis. And not how I would read it.

                      But that doesn't mean it's legally insufficient.

                    2. The BOP can most certainly decide to transfer all their prisoners to home confinement if they wanted to

            2. "As a prison guard, are you entitled to commute somebody's sentence? As a waiter, to hand out free meals to the homeless?"

              Your understanding of what "mercy" might entail is a strawman fallacy, and you know it.

              1. No, it is not the straw man fallacy, because it does not assign the straw man argument to the opponent.

              2. The argument here is that, for a given case, some people are entitled to extend mercy, and some people aren't. That it's part of some jobs, and not others.

                So long as the argument was that home confinement in place of the actual sentence was a medically necessary accommodation to an emergency, it was well within the BoP's proper reach.

                As an exercise of mercy, not so much, because the system explicitly assigns THAT to somebody else.

      2. Sentences are already arbitrary

        The primary source of arbitrariness comes from judges capriciously distributing the "mercy" you're extolling.

        I would gladly support a legislative effort to reduce their prerogative to do so.

        1. Those have not worked well in the past.

          1. "Those have not worked well in the past."

            Crime rate says otherwise.

            Judges can't be trusted with discretion. They proved that over decades. So it was partially taken away.

        2. "Truck driver Rogel Aguilera-Mederos was sentenced on Dec. 13 to 110 years in prison for a 2019 fiery crash just outside Denver that killed four people and injured several others – a sentence that the judge in the case said he wouldn't have chosen if he had the discretion."

          What you want is mandatory minimum sentences. Something which you'd know by now (if you cared enough to look) doesn't work well at all.

          1. In Texas, for example, the punishment for most first-degree felonies is 5 to 99 years or life imprisonment. This obviously gives the judge a great latitude in sentencing.

            The Federal Sentencing Guidelines, giving federal judges little discretion in sentencing, first came into force in 1987. The chief ostensible reason for them was to avoid charges of racial discrimination and favoritism in sentencing.

            Broad sentencing discretion or narrow discretion. Pick one, because you can't have it both ways.

          2. They seem to work quite well at ensuring that judges don't arbitrarily sentence criminals to inappropriately low prison terms, which is the problem they were designed to combat.

            1. Instead you get needless cruelty as judges are forced to hand down sentences that don't fit the facts of the crime, but do fit the one-size-fits-all policy document.

          3. "doesn't work well at all."

            Says who? It puts criminals in prison, so it works well.

            1. Yes, there are criminals and there are good people. And criminals should be in prison forever.

              Sometimes I wonder how you function in society.

  13. Hey, lawyer dipshits. How about going out and getting a few data? What was the rate of recidivism of the home confined prisoners versus the recidivism of a matched imprisoned group? Crimes in prison should be counted. If the home confined were able to get work at home jobs, what was their productivity? What were their tax payments?

  14. Prof. Blackman quotes Hopwood's tweet that it would be risky for Biden to order Garland to rescind the memo, then when it happens characterizes the action as "presidential reversal", but Biden's involvement appears to be purely speculative. What supports the theory that it was Biden rather than Garland who folded under the pressure?

    1. Blackman's partisanship is the basis for everything he writes.

  15. "We are seeing Presidential Maladministration at its worst."

    Because when you're a partisan hack, only your own team's interpretation of the law is the correct one.

    Garland has avoided politics to a fault, absolutely refusing to investigate countless crimes by the previous administration simply to stay out of politics. Yet now you baselessly assume he's doing Biden's political bidding, simply because he reviewed a decision and arrived at a conclusion that you disagree with.

    The CARES Act lacks any provision for adjusting sentencing component lengths after the emergency ends; that's not in dispute. Why would you, besides your typical partisan hackery, presume the better reading is that means any adjustments made before that expire at that boundary? The argument no such mass disruption of a recall was intended is the stronger one; you'd think it would have been made crystal clear so that reliance interests wouldn't become a barrier.

    Presumably, you would also argue that anyone sentenced to home confinement initially (never having been sentenced to prison) in light of covid can now be resentenced to incarceration after the emergency ends? After all, no specific provision was made otherwise right?

    Changing sentences during covid in no way implies they're meant to be resentenced after covid. That presumably another carcerally minded conservative agreed with the last one until a more fair minded higher up requested a review doesn't make it a correct decision.

    "may lengthen" does not inherently include "must then shorten", and suggesting otherwise barely approaches reasonable.

    That your post lacks a straightforward explanation of why and instead resorts to ad hominem underscores how low you'll sink to use motivated reasoning to do whatever it takes to justify how conservatives are always right about the law to yourself.

    "During the covid emergency period, we're going to pay for vaccines providers would normally pay for."

    Your logic: "That means everyone has to pay the federal government back when the emergency ends."... Not without a provision stating that it doesn't.

    1. Who knows what these statutes mean, but I noticed this:

      "Garland has avoided politics to a fault, absolutely refusing to investigate countless crimes by the previous administration simply to stay out of politics."

      No, he hasn't avoided politics, and if he's failed to "investigate countless crimes by the previous administration" (and assuming that didn't simply decide the special-prosecutor investigations had done what work they could), then the nonprosecution is part of a political pattern, but because it's bipartisan you assume it's not political.

      The usual pattern is that each new administration sweeps the other administration's crimes under the rug. The point is not to avoid politics but to practice duopoly politics. Obama didn't prosecute the Bush-era torturers, Trump didn't punish Clapper's behavior in the Obama administration, etc. The duopoly wants to avoid a cycle of retaliatory prosecution, and each part of the duopoly wants to be able to skirt the law like their counterparts do. Don't heed their rhetoric, look to what they tolerate in each other and in their "opponents."

      1. Trump is an exception to this as to many rules. The duopoly doesn't like him (though some of them pretend to so as not to lose votes), and they'd be willing to see him behind bars.

  16. We are seeing Presidential Maladministration at its worst.

    Oh come off it. That's ridiculous.

  17. What it says is this:

    [d]uring the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the function-ing of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

    I don't think the new interpretation is at all unreasonable. In fact, the original OLC opinion isn't all that convincing. It basically says that the because the BOP's authority to lengthen home confinement expires when the emergency ends, so must home confinements.

    Is that right? Do the President's executive orders go out of force automatically when he leaves office? Do statutes become invalid when a new Congress is elected?

    It seems to me that just because the BOP authority disappears actions taken when it was in effect can still be considered valid.

    1. The most relevant difference is that the President is exercising the powers of the office, as head of the executive branch, whereas an extended home confinement is motivated by the particular emergency. A better analogy is whether the government can continue to use any other state-of-emergency declaration to expedite aid or bypass normal limits on discretion, even after that state of emergency ends. I don't think any serious person would say the government could.

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