Prisoners sent to home confinement because of the pandemic might remain free

Updated December 21, 2021 at 4:44 PM ET

The Justice Department has reversed course in a legal analysis, which could allow thousands of people released from prison at the start of the pandemic to remain free once the coronavirus emergency ends.

In a rare reconsideration, the department's Office of Legal Counsel issued a new legal opinion concluding the Bureau of Prisons "has discretion to permit prisoners in extended home confinement to remain there."

Attorney General Merrick Garland asked the OLC to reconsider the issue after personally reviewing the law. The move comes after months of intense pressure from a coalition of advocates across the political spectrum, who had urged the Department of Justice and the White House to reconsider.

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a written statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison."

Earlier Tuesday, Garland met with a small group of people on home confinement to learn more about their experiences and challenges, the Justice Department said.

Kevin Ring, who advocates for people in prison and their families at the group FAMM, recently told NPR the issue was a "bellwether" for the Biden administration's criminal justice efforts.

"For somebody who isn't sure whether they can get a lease, start a family, start a relationship, begin college courses, get on with their life, it's incredibly callous to say, 'Oh, we haven't made a decision yet and we don't have to because there's a pandemic still going on,'" Ring said earlier this month.

The new memo, authored by Assistant Attorney General Christopher Schroeder, said the office did not "lightly depart from our precedents" but concluded that a prior opinion issued at the close of the Trump administration "failed to address important and persuasive counterarguments."

Schroeder wrote that the best reading of the law did not require thousands of people released to home confinement earlier in the pandemic to be returned "en masse to correctional facilities when the emergency period ends." He added that the Bureau of Prisons typically makes decisions about home confinement on a case-by-case basis, avoiding what he called a "blanket, one-size-fits-all policy."

The news arrived only days before the Christmas holiday, which prompted Holly Harris, president of the group Justice Action Network, to tweet, "I screamed into the phone but who cares it's A CHRISTMAS MIRACLE!!! "

Udi Ofer, director of the Justice Division at the American Civil Liberties Union, commended the Justice Department for its action. But Ofer said there's still plenty of room for prison authorities to return some people to prison. And he called on the White House to help them.

"We also recognize that the threat of eventual return to prison is still present, so we ask President Biden to use his clemency powers to provide permanent relief to families," Ofer said in a statement. "A future administration can still force people back to prison, and families will not have permanent closure until their cases are permanently resolved."

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