Washington, D.C. – Last week, Democracy Forward, the American Civil Liberties Union, Color Of Change, Due Process Institute, Federal Public & Community Defenders, Justice Action Network, The Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and Tzedek Association submitted a comment in response to the Department of Justice (DOJ)’s recent Proposed Rule interpreting the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to permit individuals placed on home confinement pursuant to CARES Act authority to remain on home confinement once the emergency ends. 

The groups commend the DOJ for its ongoing use of its CARES Act authority to place imprisoned individuals on home confinement and for its efforts to use this authority in a manner consistent with the law.

The coalition’s comment argues that DOJ’s Proposed Rule correctly concludes that the CARES Act does not require the Bureau of Prisons to recall individuals on home confinement to a correctional facility once the COVID-19 emergency period ends. 

The coalition strongly recommends that after this rule is finalized, BOP  establish clear criteria and procedures—through notice-and-comment rulemaking—for how it will assess individuals subject to potential return to a federal facility.  Specifically, the coalition explains that there is no possible penological justification for returning individuals to a correctional facility absent a serious violation of the terms of their home confinement.  The coalition further explains the process due to any individual whose home confinement is at risk of revocation.

The Trump administration’s legal analysis, which could have resulted in thousands of individuals being returned to correctional facilities without justification, was incorrect as a matter of law, did not support public safety, and was simply cruel,” said Jessica Morton, Senior Counsel at Democracy Forward. “We support the DOJ’s now-correct interpretation of the bipartisan CARES Act, and encourage DOJ and BOP to clarify the limited circumstances under which a person on CARES Act home confinement could be subject to reincarceration, so that these individuals have the stability they deserve to continue thriving as they reintegrate into their communities.”

“Those on home confinement have already proven that people will always be safer and have a better chance to thrive at home in their community rather than in a cage. The DOJ is right to continue to use its CARES Act authority to ensure that individuals on home confinement are not wrongfully sent back to correctional facilities. The final rule should ensure due process protections in cases where return is under review,” said Sakira Cook, co-interim vice president at Color Of Change. “At the end of the day, home confinement is an extension of a cruel and inhumane criminal legal system that continually threatens to rip people apart from their homes and loved ones if they violate draconian restrictions. Ultimately, granting clemency can be an important and necessary step forward for ending racialized mass incarceration.”

“It has been clear from the beginning that there was no public safety reason to require people to go back to prison when they had safely returned home, reunited with their families, and were contributing to their communities,” said Inimai Chettiar, Federal Director at Justice Action Network. “After more than two years of living in limbo, we hope to finally see clear and consistent criteria and procedures that presume individuals who have successfully transitioned to home confinement will remain in their communities. We will continue to press the Department of Justice and the Bureau of Prisons to fully and faithfully implement reforms, including the CARES Act, that can make our justice system smarter, fairer, and more effective.” 

“We are pleased that the Department of Justice recognized that the CARES Act does not compel the return of those released to home confinement after the COVID-19 public health emergency ends,said Kanya Bennett, managing director of government affairs at The Leadership Conference on Civil and Human Rights. “After more than a year at home, people have re-established themselves with families, loved ones, and communities. The mere prospect of re-incarceration is destabilizing, as it interrupts one’s ability to plan for the future, secure employment, and build-up relationships with family. The Bureau of Prisons must establish clear guidance for anyone subject to return, only using incarceration as a last resort.”

“The Department of Justice is right to conclude that the CARES Act was intended to give incarcerated people the opportunity to rebuild their lives outside of prison. Thousands of individuals have succeeded in finding jobs, starting college, and rekindling family ties, and adoption of this proposed rule will give them the certainty they need to continue to succeed,” said Aamra Ahmad, senior policy counsel at the American Civil Liberties Union. “We will continue to work to ensure that DOJ develops procedures to ensure that individuals who have safely returned home will not be sent back to prison. We will also continue to call upon President Biden to use his clemency powers to help people on home confinement and keep families together.”

“The Bureau of Prisons rightly released thousands of vulnerable individuals from prison under the CARES Act to address the very real threat of COVID-19 to their lives. We applaud the Department of Justice for agreeing that those who have been released through CARES Act Home Confinement should not be returned to custody.  The Department of Justice’s correct interpretation of the CARES Act ensures that these individuals can stay safe and allows them the opportunity to continue successfully reintegrating into society.  To ensure that these individuals, their families, and their communities have clarity and certainty for their futures, we encourage the Department of Justice and Bureau of Prisons to establish clear guidance for anyone subject to return to custody and that incarceration should be considered only as a final recourse,” said Martin A. Sabelli, President of The National Association of Criminal Defense Lawyers. 

“Tzedek Association greatly appreciates and agrees with the determination that individuals out on home confinement under the CARES Act need not be returned to prison following the end of the emergency period,” said Rabbi Moshe Margaretten, President of Tzedek Association. “However, we are concerned that language in the recently proposed rule is too generic and broad, giving the Bureau of Prisons (BOP) complete discretion to leave someone on home confinement or return them to custody. Returning somebody to prison for any other reason other than a very serious violation would severely disrupt their reentry, unnecessarily tear apart families and would literally defy and contradict the very purpose of a human being‘s existence, which is to give back to society, according to our values.”


When the CARES Act passed in March 2020, it granted the Bureau of Prisons (BOP) authority to lengthen the portion of prisoners’ sentences that can be served on home confinement, which is an end-of-sentence option for reintegrating individuals back into society. The statute helped reduce dense prison populations susceptible to COVID-19 transmission. Despite the success of individuals on CARES Act home confinement, in the last days of the Trump administration, DOJ’s Office of Legal Counsel issued a memo that would have required individuals placed on home confinement pursuant to CARES Act authority to be returned to prison once the public health emergency ends–completely disrupting the lives of people who had been successfully reintegrating into their communities in the meantime.

The Trump-era memo was incorrect as a matter of law: its conclusion was 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—ignored the reality that thousands of people on home confinement need the security of knowing that they will not be sent back to prison after the pandemic. 

In December 2021, the Office of Legal Counsel rescinded the prior flawed analysis, and this Proposed Rule will codify the correct interpretation of the CARES Act:  that people placed on home confinement pursuant to that statute can remain there, including even after the pandemic emergency ends.

Additional information is available here.

Contact: Jacob Weinberg, Democracy Forward  jweinberg@democracyforward.org