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DOJ Won’t Make Inmates Sent Home During COVID Go Back To Prison

Thousands of inmates sent home during the COVID-19 pandemic will be able to complete the rest of their sentences there as long as they remain compliant, the Department of Justice (DOJ) announced Tuesday.

A final DOJ rule released Tuesday clarifies that inmates placed on home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act will not be automatically sent back to prison when the Biden administration lifts the public health emergency, though the Bureau of Prisons retains discretion to impose sanctions on or return inmates who commit infractions. After multiple extensions, the Biden administration announced in January it would allow the public health emergency to expire on May 11.

“[The] Department’s interpretation is that any ambiguity in the CARES Act should be read to provide the Director with discretion to allow inmates placed in home confinement who have been successfully serving their sentences in the community to remain there, rather than require the Director to return such inmates to secure custody en masse without making an individualized assessment or identifying a penological, rehabilitative, public health, or public safety basis for the action,” the rule states.

The Trump administration’s DOJ Office of Legal Counsel (OLC) found in January 2021 that inmates must be recalled to prison at the end of the public health emergency. Following lobbying from criminal justice advocates and lawmakers, Attorney General Merrick Garland asked the OLC to reconsider, which it did in December 2021 by issuing a new opinion.

Senate Democrats previously pushed the Biden administration to ensure prisoners would not be transferred out of home confinement after the pandemic. In an August 2021 letter to the president, Democratic Illinois Sen. Dick Durbin and Democratic New Jersey Sen. Cory Booker urged him to “act immediately” to “enable those on release to move forward with their lives.”

“Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison,” they wrote.

The DOJ’s final rule cites concerns raised by inmates, their families, and members of Congress as factors in its decision. It also points to the program’s success, noting less than 1% have been returned to custody as a result of criminal conduct.

“The Justice Department is committed to protecting the safety of our communities and continuing to support the successful transition of those on home confinement back to society,” said Attorney General Merrick Garland in a statement. “This final rule makes clear that the Director of the Bureau of Prisons has the discretion to ensure that those who have made rehabilitative progress and complied with the conditions of home confinement are not unnecessarily returned to prison.”

A total of 52,561 inmates were placed on home confinement between March 26, 2020 and Jan. 23, most of whom have already finished their sentences, according to the DOJ. As of Jan. 23, 3,434 remain on home confinement under the CARES Act.

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