Biden White House will send thousands of cons back to prison after COVID state of emergency ends

Thousands of federal convicts released to home confinement during COVID will be sent BACK to prison when the pandemic ’emergency’ is over, Biden administration says

  • The White House’s move underscores a Trump-era memo written in late January
  • It states that inmates released on home confinement under the CARES Act must return to prison up to 30 days after the pandemic state of emergency ends
  • Officials reportedly said the decision is based on legal interpretation, not policy
  • The decision applies to roughly 4,000 nonviolent inmates
  • Democrats in Congress and groups including the ACLU have put pressure on Biden to use his presidential powers to reverse the Trump DOJ policy
  • A nationwide spike in COVID cases fueled by the Delta variant means the emergency declaration will likely last through the rest of the year

The Biden administration is reportedly sticking by a Trump-era policy to send thousands of federal convicts released to home confinement during COVID back to prison a month after the pandemic is over.  

A memo from the DOJ’s Office of Legal Counsel sent a week before Biden took office states that inmates whose sentences last beyond the official state of emergency declared for the pandemic have to go back behind bars. 

‘We understand that approximately 40 percent of those prisoners would not have been eligible [for home confinement] absent the emergency authority,’ the order reads. 

More than 7,000 inmates are currently under home confinement including those not sent home under pandemic rules, according to the BOP. 

The Biden legal team’s decision backs a memo written by the Trump DOJ during the ex-president’s last days in office. It states that federal convicts must return to prison no more than 30 days after the official pandemic emergency declaration ends

The CARES Act allowed about 4,000 nonviolent offenders to temporarily leave prison, the New York Times reports.

Recent surges in COVID cases and concerns over the Delta variant mean the emergency period, declared in March 2020, likely won’t end this year.

The CARES Act directed the DOJ to allow lower-level cons released on home confinement to help slow the virus’ spread. Then-AG Barr sent the Bureau of Prisons (BOP) a memo with strict eligibility standards.

Officials reportedly pressed that the decision was made based off of law, not policy. 

The Biden team is reportedly hesitant to issue a blanket commutation over the potential political risk and concerns on intervening with DOJ policy on such a wide scale.

Former Attorney General Barr outlined strict standards for who could be released by the CARES Act directive (pictured August 2020)

Democratic Senators sent Attorney General Merrick Garland a letter urging him to rescind his predecessor's policy (pictured June 25)

Officials familiar with talks on the matter reportedly said the decision was a matter of law, not  administration policy

But as an administration that has championed prison reform, Biden has come under intense pressure to revoke the Trump-era directive. 

A letter signed by 20 advocacy groups including the ACLU and NAACP begged Biden to commute thousands of prisoners’ sentences.

‘This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back to society, reconnecting with their loved ones, getting jobs and going back to school,’ the letter sent Monday read.

As an administration that has championed prison reform, the Biden White House is under intense pressure to revoke the Trump-era directive

As an administration that has championed prison reform, the Biden White House is under intense pressure to revoke the Trump-era directive

More than two dozen House Democrats and one Republican urged Biden to ‘reverse the Trump administration’s cruel and misguided decision to require thousands of people currently on home confinement to return to federal prison.

‘Such a move would harm families, waste tax dollars, and undermine public safety.’  

Democratic Senators Dick Durbin and Cory Booker also sent Attorney General Merrick Garland a letter in late April urging him to rescind the Trump DOJ policy.

Iowa Republican Senator Chuck Grassley also supported the reversal during a hearing in April, citing statistics that say less than 1% of the criminals sent home under the CARES Act violated the terms of their home confinement.

When asked for a statement, the White House did not mention any pandemic-specific regulation.

‘President Biden is committed to reducing incarceration and helping people to re-enter society,’ White House spokesman Andrew Bates told the New York Times. ‘As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.’


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