In the last days of the Trump administration, the Department of Justice’s Office of Legal Counsel issued a memo that requires individuals placed on home confinement due to the COVID-19 pandemic to be returned to prison once the public health emergency ends. When the CARES Act passed in March 2020, it granted the Bureau of Prisons authority to lengthen the portion of prisoners’ sentences that can be served on home confinement, which is an end-of-sentence option for reintegrating someone back into society. The statute helped reduce dense prison populations susceptible to COVID-19 transmission.

The Trump-era memo is incorrect as a matter of law: its conclusion is inconsistent with the plain text of the CARES Act, as well as the pre-existing authority for home confinement, and—in tension with existing case law—ignores that thousands of people are relying on the promise of home confinement. DOJ’s conclusion that the Bureau of Prisons must revoke home confinement for individuals—immediately, and without discretion, at the end of the emergency—cannot be found anywhere in the language of the statute. Under a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant or revoke home confinement remains just the same as before, except for the explicit authorization to “lengthen” the period of time a person may serve on home confinement.

Although it is clear that the Bureau of Prisons will no longer have authority to continue granting home confinement for prisoners with more than six months remaining on their sentences once the COVID-19 emergency is declared over, the DOJ memo made an unsupported leap to conclude that an anticipated expiration of the Bureau of Prisons’ CARES Act authority will affect the people who’ve already been approved for and placed on home confinement.

If this legally faulty memo is not reversed by the Department of Justice and the Office of Legal Counsel, thousands of individuals who were allowed to safely serve the rest of their sentences in home confinement could be forced to return to prisonRequiring as many as 4,000 people placed on home confinement to return to prison would disrupt jobs, housing, relationships, and family responsibilities they may have acquired in an effort to reintegrate into society—in direct opposition to the stated goals of the home confinement statute.

The memo also poses dramatic logistical complications for the government, which will have only 30 days to arrange staff, facilities, and transportation to re-incarcerate thousands of individuals, all while likely having to divide resources to defend against scores of legal challenges. And it is harmful from a constitutional perspective because it requires the Bureau of Prisons to re-incarcerate people without regard for the due process of individuals.

We sent a letter to the Department of Justice and the Office of Legal Counsel—along with FAMMJustice Action NetworkThe Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and Tzedek Association—making it clear that the Trump-era memo is full of legal errors and should be rescinded. The letter was sent on August 4, 2021.

Jessica Morton

Senior Counsel

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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Samara Spence

Senior Counsel

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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