WASHINGTON – The Biden administration legal team has ruled that thousands of federal convicts who have been returned to house arrest to reduce the risk of the spread of covid-19 will be required by law to return to jail one month after the official state of emergency for the pandemic is ending, officials said.
The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo from the Justice Department’s legal counsel’s office that said detainees whose sentences lasted beyond the “pandemic emergency period” should return to prison.
But Biden’s legal team concluded the memo correctly interpreted the law, which applies to around 4,000 non-violent inmates, according to officials who spoke on condition of anonymity of sensitive internal deliberations. Several officials characterized the decision as an assessment of the best interpretation of the law, and not as a matter of political preference.
The official state of emergency is not expected to end this year due to an increase in new infections caused by the delta variant of the coronavirus. But determination means that whenever it ends, the hands of the department will be tied.
This leaves two options if these prisoners are not to be returned to cells: either Congress could enact a law to extend the authority of the Department of Justice to keep them at home beyond the emergency, or President Joe. Biden could use his powers of pardon to commute their sentences. home confinement.
The Biden team would be wary of global mass switching, however, both because it would represent an extraordinary intervention in the normal functioning of the justice system and could create political risks if a recipient who would otherwise be locked up commits a serious crime. Another option is the case-by-case assessment for switches, but the amount of work required to assess so many people individually is intimidating.
Biden pledged to make overhauling the criminal justice system a crucial part of his presidency, saying his administration could cut the prison population by more than half and expand programs that offer alternatives to detention.
Prison reform advocates have argued that the release of non-violent prisoners during the Covid-19 crisis offered Biden a test case to show he is determined to make real change.
The disclosure of Biden’s legal team’s internal ruling came amid a broad and ideologically broad spectrum of advocacy groups – nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition – stepped up the pressure on Biden. administration not to recall detainees from house arrest when the emergency ends.
Notably, however, these organizations issued a letter framing their request in terms of Biden using his leniency powers to resolve the issue.
“On the election campaign and during your presidency, you spoke about the importance of second chances,” according to the letter.
“This is your opportunity to give a second chance to the thousands of people who have already been safely released from prison, reintegrating into society, reconnecting with loved ones, finding jobs and returning to school. We urge you to grant leniency now to people under CARES Act home confinement. “
Wendy Hechtman, who is serving a 15-year sentence for conspiring to distribute some form of fentanyl, said she still has hopes the Biden administration will grant her and other inmates clemency . She tried to show she deserved such a reprieve by following the rules of her sober home in New Haven, Connecticut, and attending weekly therapy sessions. But for now, she said she felt stuck in limbo.
“It’s like waiting to be sentenced again,” she said.
Under normal circumstances, the law allows Federal Bureau of Prisons officials to send federal inmates home near the end of their prison term – the shorter of six months or 10% of their sentence – to facilitate a longer transition. gentle in society.
But in March 2020, as part of the CARES Act, a set of laws responding to the pandemic, Congress gave the Justice Department the power to extend the length of time the office can place an inmate in house arrest. during the “covered emergency period”, which he defined as ending 30 days after the end of the national emergency declared during covid-19.
Later last year, the office asked if it should plan for the eventual recall of inmates who had been sent to house arrest and were not yet close enough to the end of their sentences to qualify under normal circumstances. .
On January 15, five days before the Biden administration took office, the Office of the Legal Counsel produced a 15-page memo concluding that the office’s authority to keep inmates in house arrest beyond the Normal length of time “evaporates” when the emergency ends, and so such convicts should return to federal prison.
This spring, various lawmakers and advocates began pressuring Biden’s Justice Department to overturn that position, prompting an administrative review.
Senator Charles E. Grassley, R-Iowa, joined with several Democrats in criticizing the Justice Department’s memo. He noted that very few homebound inmates over the past year had broken the rules or been arrested in connection with a new crime, while calling the Office of the Legal Adviser’s finding “policy”.
And later this month, two Democratic senators on the Judiciary Committee – Richard J. Durbin of Illinois, chairman of the panel, and Cory Booker of New Jersey, including former chief of staff and longtime adviser Matt Klapper , is now Garland’s chief of staff. – sent Garland a letter urging him to rescind the advice from the Office of Legal Counsel.
Their letter argued that the law could be interpreted differently. Basically, the idea was that the law only restricts when the Bureau of Prisons can make the decision to “place” a particular inmate in house arrest.
According to this view, after the expiration of the official emergency period, the office could not send home additional detainees who would not otherwise be entitled to such treatment, but nothing would require recall to prison. those already placed in house arrest.
The January 15 memo, however, addressed this alternative interpretation and dismissed it as not “defensible”.