Good News: The Biden Administration Agrees To #KeepThemHome

It’s not very often that criminal justice reform news is good. But this news is: The Biden Administration has officially agreed to #KeepThemHome.

For months, incarcerated people, their loved ones and advocates have been pleading with the Biden Administration to allow those released under the CARES Act’s home-confinement provision to stay home when the COVID-19 pandemic comes to an end. And for months, the news has been frustrating — and sometimes worse.

Yesterday, the Biden Administration announced that it would allow those released under the CARES Act to stay home.

That all changed yesterday afternoon when U.S. Attorney General Merrick Garland announced that the Department of Justice will allow those released under the CARES Act’s home-confinement provision to stay home when the COVID-19 pandemic comes to an end.

“Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules,” Garland said in a press release on the DOJ’s website. “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.”

In the opinion referenced by Garland, which is authored by Christopher H. Schroeder, Assistant Attorney General for the Office of Legal Counsel, the DOJ opines “that section 12003(b)(2) [of the CARES Act] and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.”

Kevin Ring was one of the first to announce the DOJ’s decision. “Attorney General Garland just called!!!! DOJ will be issuing a new OLC memo today, clarifying that people on CARES act home confinement don’t need to return to prison at the end of the pandemic,” he tweeted. “I told him thousands would be grateful for this news before the holidays.” Ring is absolutely right.

FAMM was one of the leading voices when it came to asking the Biden Administration to #KeepThemHome on social media. And it’s beyond fitting that Ring, FAMM’s president, was one of the first ones to break the news.

Yesterday’s opinion and press release are a welcome reversal of the DOJ’s prior plan to send thousands back to prison.

The opinion issued by the DOJ yesterday represents a complete reversal by the DOJ when it comes to the issue of whether those released under the CARES Act’s home-confinement provision must return to prison at the end of the COVID-19 pandemic.

Pursuant to a January 2021 memo drafted during the Trump Administration, the DOJ originally planned to order everyone released under the CARES Act back to prison when the pandemic ended. This plan led to anger and confusion on multiple levels.

Nearly all formerly incarcerated people released under the CARES Act’s home-confinement provision were promised that, so long as they followed the rules of their release, they would never have to return to their BOP facility. Based on the Trump-era memo, these assurances became lies. Understandably, the deception led to anger. The reversal by the DOJ yesterday solves that issue.

In addition, those released during the pandemic felt left in a state of never-ending confusion for months. Initial reporting suggested that the order to return after the pandemic would be a bright-line rule: Everyone must return. Later reporting had releasees applying for clemency. But that only applied to nonviolent drug-related offenders with four years or fewer remaining on their sentence. The reversal by the DOJ yesterday solves that issue, too.

The Biden Administration’s agreement to #KeepThemHome isn’t flawless. But let’s be clear: It’s great news all the way around.

It’s important to emphasize what yesterday’s opinion is as well as what it isn’t. Yesterday’s opinion by the DOJ is not flawless. And It’s not a guarantee that everyone released under the CARES Act’s home-confinement provision will be able to stay home. Frankly, expecting a government agency to paint with such a broad brush is unrealistic.

Instead, as Garland explained in his press release, the new opinion merely gives the BOP discretion. Put differently, it indicates that the BOP can choose whether or not to #KeepThemHome. “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.”

The BOP isn’t great when it comes to exercising its discretion. Look no further than when it comes to its flaw-filled implementation of the First Step Act’s time-credit system. But, for now, this is great news. And we should treat it as such.