Durbin, Booker Urge President Biden to Use Executive Authority to Allow Federal Inmates to Remain on Home Confinement

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Cory Booker (D-NJ), Chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, today sent a letter to President Biden urging his Administration to rescind a Trump-era opinion that would force federal inmates on home confinement to return to prison following the COVID-19 pandemic.  In their letter, Durbin and Booker note that the Office of Legal Counsel’s (OLC) January 15, 2021, memorandum opinion incorrectly found that following the emergency period of the pandemic, the Bureau of Prisons (BOP) must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities.  In fact, the CARES Act does not require or permit BOP to recall these prisoners.

“Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy,” the Senators wrote.  “We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act.”

Since March 26, 2020, thousands of inmates have been released to home confinement and halfway houses, and less than one percent have been returned to BOP facilities due to rule violations.

The Senators continued, “These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement.  They have reunited with family, obtained jobs, and are abiding by the conditions of their release.”

In order to give BOP broader authority to reduce prison populations to help contain the spread of the virus, the CARES Act expanded BOP’s home confinement authority.  The Act provides that during the covered emergency period, BOP may lengthen the maximum amount of time a prisoner may be placed in pre-release home confinement under 18 U.S.C. § 3624(c)(2).  Recalling prisoners who are successfully transitioning to the community through home confinement is contrary to the requirements and purpose of § 3624(c)(2).

On April 23, 2021, Durbin and Booker sent a letter to Attorney General Merrick Garland requesting that he rescind the January OLC opinion.  As of Thursday, the Senators had not received a response to their letter.

Full text of today’s letter is available here and below:

August 12, 2021

Dear President Biden:

We respectfully request that your Administration take immediate action to ensure that thousands of individuals who have successfully transitioned to home confinement from federal prison during the pandemic are not returned to prison without cause. Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act provided critical relief from the effects of the coronavirus pandemic. In order to give the federal Bureau of Prisons (BOP) broader authority to reduce prison populations to help contain the spread of the virus, the CARES Act expanded BOP’s home confinement authority. The Act provides that during the covered emergency period, BOP may lengthen the maximum amount of time an otherwise eligible individual may be placed in prerelease home confinement, if the Attorney General finds that the pandemic materially affects the functioning of BOP. Attorney General William Barr made the necessary finding on April 3, 2020, and BOP began exercising this authority. Thousands were released, and almost all have been successful—less than one percent of the more than 24,000 prisoners released to home confinement and halfway houses during the pandemic have been returned to BOP facilities due to rule violations.

On January 15, 2021, in the last days of the Trump Administration, the Department of Justice Office of Legal Counsel issued a memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (“OLC opinion”). The OLC opinion incorrectly found that following the emergency period of the pandemic, BOP must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act does not require or permit BOP to recall these prisoners.

On April 23, 2021, we asked Attorney General Garland to rescind the OLC opinion, and are awaiting his response. However, the opinion does not prevent you from acting. We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act. These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement. They have reunited with family, obtained jobs, and are abiding by the conditions of their release.

Additional executive authorities are also available. BOP can provide relief for certain individuals through prerelease home confinement, under 18 U.S.C. § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 U.S.C. § 60541(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.

Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison. The uncertainty of the current situation unnecessarily interferes with the efforts of those on home confinement to rebuild their lives and participate in our economic recovery. With the goal of facilitating successful community reentry, we urge you to act immediately to resolve this issue and enable those on release to move forward with their lives.

Thank you for your time and consideration.

Sincerely,

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