During the Trump administration, lawyers at the Department of Justice said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends.

They got the law wrong, and DOJ should say so.

By Jessica Morton & Samara Spence for The Inquest

“Right now, thousands of people across the country are wondering if the end of the pandemic will mean the end of their freedom. All of them were allowed to leave federal prison over the past year and a half under an emergency law called the CARES Act, which was enacted as COVID was tearing through jails and prisons at rates five times worse and more than twice as deadly as what was happening in the broader public. The new law expressly authorized the Bureau of Prisons to place people in federal prison in home confinement instead, where they could protect themselves from infection and begin the process of reintegrating into society. The goal was to reduce overcrowding in prisons, making the environment safer for everyone, including people who remained incarcerated and corrections officers alike. Invoking the act, the Bureau of Prisons placed thousands of people whom it deemed ‘low risk’ on home confinement. It did not expect to bring any of them back to prison. In fact, the Bureau of Prisons director told Congress it was sending these people home ‘for service of the remainder of their sentences.’

“But in the last week of the Trump administration, a group of lawyers in the Department of Justice’s Office of Legal Counsel, known for short as OLC, wrote a memo telling the Bureau of Prisons that when the pandemic ends, BOP will have to recall to prison most people with more than six months remaining on their sentence. The memo said this is what Congress’s emergency law requires. And according to recent reporting in the New York Times, some officials in the Biden administration think this Trump-era memo correctly interprets the law.

“It doesn’t. The memo’s legal analysis is wrong, and following it would be a grave injustice. The Department of Justice can and should rescind the memo. Until it does, between 2,000 and 3,800 people who have spent the past year at home, reconnecting with their families and communities, with the understanding that they would remain home for the rest of their sentences, will live in fear that they will be sent back to federal prison as soon as the pandemic ends…”

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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