Memo Incorrectly Determined Thousands of Individuals Must Return to Prison After COVID-19 Emergency

“Time is of the Essence” as Groups Explains That, Consistent with OLC Policy, “Reversal of Course is Appropriate”

Washington, D.C. — Today, Democracy Forward, FAMM, Justice Action Network, The Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and Tzedek Association sent a letter to the Department of Justice (DOJ) and the Office of Legal Counsel (OLC) requesting that it review and rescind a Trump-era memo on home confinement that OLC issued on January 15, just days before President Biden took office. The groups explain that the Trump-era memo reached a conclusion that is contrary to the plain text of the CARES Act and contains assumptions that are contrary to well-settled law, and therefore reversal of the memo’s position is the appropriate course of action.

To address the COVID-19 pandemic, the CARES Act expanded the number of individuals eligible for home confinement during the COVID-19 emergency by authorizing the Bureau of Prisons (BOP) to lengthen the portion of prisoners’ sentences that can be served on home confinement. But the Trump-era memo wrongly concluded that BOP must revoke home confinement for many prisoners once the public health emergency ends.

As the organizations explain, the memo interprets the CARES Act to include requirements that are not contained in the law. For example:

  • The memo reads into the CARES Act a new requirement to revoke home confinement—immediately, and without discretion, at the end of the emergency—that does not exist anywhere in the Act. Rather, the groups explain that the CARES Act authorizes BOP to lengthen an end-of-sentence home confinement period and makes no other changes to BOP’s pre-existing authority. Indeed, “[u]nder a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant and revoke home confinement is the same as it always was under the pre-existing statutory scheme, except that BOP was authorized to ‘lengthen’ the period of time a person may serve on home confinement.”
  • There is agreement that, as of thirty days after the COVID emergency ends, BOP will no longer have authority to continue granting home confinement for prisoners with more than six months remaining on their sentences. However, the memo “makes an unsupported leap by inferring that the anticipated expiration of authority to grant home confinement for longer periods of time has any effect on whether people who previously received home confinement may continue as they are.” 

The groups explain, moreover, that: “[t]he Memo goes beyond statutory interpretation to instruct BOP ‘to recall the prisoners to correctional facilities,’” and in doing so, the memo included “no consideration of reliance interests.” Yet BOP is required to abide by the Memo regardless of any reliance interests engendered by prior policy,” which is contrary to existing case law.

Many of the organizations sending today’s letter are among those that have urged the use of the clemency power to address the impending crisis created by the Trump-era memo. However, the fact that the Trump-era memo itself is based upon flawed legal analysis and misinterpretation of the CARES Act affords DOJ another option to resolve this issue.

The Trump-era memo is not only potentially harmful to OLC’s credibility, but it is interfering with the ability of potentially as many as 3,800 individuals living on home confinement to successfully reintegrate into society. Requiring people on home confinement to return to prison would disrupt their reintegration, affecting jobs, housing, relationships, and family responsibilities they may have acquired during their period of home confinement in direct opposition to the stated goals of the home confinement statute. And it poses dramatic logistical complications for BOP and DOJ. The memo gives BOP only 30 days to arrange staff and transportation to re-incarcerate thousands of individuals, likely while defending scores of legal challenges.

Upon sending the letter, the organizations had the following to say:

 

“The Trump-era memo is legally flawed and harmful to thousands of individuals. It incorrectly interprets statutory text and intent, is contrary to case law, and ignores other critical legal considerations,” said Skye Perryman, Democracy Forward President & CEO. “Our letter today provides the government with a path forward to review the memo and reverse course. We urge swift consideration of this analysis.”

“President Biden campaigned on an aggressive criminal justice reform platform. Forcing people on home confinement to live under constant threat of returning to prison is just cruel, and needlessly sending thousands of people back to prison would directly contradict Biden’s campaign promises,” said Inimai Chettiar, Federal Director of the Justice Action Network. “The Biden Administration can still fix this. First, Administration officials must rescind the memo that would force people on home confinement back to prison, and then issue new guidance that would keep these people home. Additionally, we urge the President to grant clemency to people who have shown they can safely complete their sentences on home confinement. Biden has the executive authority and the moral obligation to avoid a tragically unnecessary increase in incarceration, and we urge him to take action soon.”

“Incarcerated individuals are exceptionally vulnerable to the COVID-19 pandemic due to overcrowding, unsanitary prison conditions, and a lack of access to quality healthcare services. These conditions have not improved during the COVID-19 crisis, so no one who was released to home confinement under the CARES Act should be returned to prison,” said Wade Henderson, interim president and CEO of The Leadership Conference on Civil and Human Rights. “The Office of Legal Counsel memo issued under the previous administration represents a flawed legal analysis and should be rescinded immediately. The Biden-Harris administration must demonstrate their commitment to racial justice by commuting the sentences of everyone released to home confinement.”

“The very idea that thousands of people might be returned to federal prison from CARES Act Home Confinement shocks the conscience,” said NACDL President Martín Antonio Sabelli. “The Department of Justice is not legally required to rip people from their homes, families, and jobs. Moreover, President Biden is legally empowered to commute the sentences of all of these individuals, and he should do so categorically.”

Sending these people back to prison–a population with a very low risk of recidivating–would be going backward at a time when we should be going forward in the realm of criminal justice reform,” said Rabbi Moshe Margaretten, President of Tzedek Association. “My heart especially goes out to the families, especially the children, who would be devastated if their loved ones were to, G-d forbid, return to prison. The OLC memo is wrong as a matter of law, but also as a matter of basic human compassion.”

The letter was sent to the Department of Justice and Office of Legal Counsel on August 4, 2021.

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Democracy Forward is a nonprofit legal organization founded in 2017 to litigate challenges to unlawful executive branch action on behalf of organizations, individuals, and municipalities. The organization has taken 650 legal actions and reversed dozens of harmful policies. Democracy Forward is expanding its work, building on its success to confront unlawful threats to democracy and social progress.

FAMM is a national nonpartisan advocacy organization that promotes fair and effective criminal justice policies that safeguard taxpayer dollars and keep our communities safe. Founded in 1991, FAMM is helping transform America’s criminal justice system by uniting the voices of impacted families and individuals and elevating the issues all across the country.

Justice Action Network is the largest bipartisan 501(c)(4) organization in the country advocating for criminal justice reform at the state and federal levels. From state houses to the White House, Justice Action Network and its partners from the right to the left have paved the way for life-changing criminal justice reforms that safely reduce incarceration, provide second chance opportunities, save taxpayer dollars, and make our communities safer. For more information on their work, visit www.justiceactionnetwork.org.

The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 220 national organizations to promote and protect the rights of all persons in the United States. The Leadership Conference works toward an America as good as its ideals. For more information on The Leadership Conference and its member organizations, visit www.civilrights.org.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.

Tzedek Association is a faith-based national organization that focuses on religious liberty, criminal justice reform and humanitarian cases. Among other accomplishments, Tzedek was instrumental in the drafting and passage of the First Step Act, and later the provision in the CARES Act that expanded home confinement in the federal prison system.

Press Contacts

Democracy Forward
Megan Uzzell
202-701-1784
[email protected]

FAMM
Rabiah Alicia Burks
323-440-2063
[email protected]

Justice Action Network
Carrie Glenn
202-246-0548
[email protected]

The Leadership Conference on Civil and Human Rights
Janessa Sambola-Harris
[email protected]

National Association of Criminal Defense Lawyers
Ivan Dominguez
202-465-7662
[email protected]