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 in 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In December 2021, the Office of Legal Counsel rescinded the prior flawed analysis, and DOJ has issued a proposed rule to codify the correct interpretation of the CARES Act: that people placed on home confinement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.
On July 21 a coalition of organizations submitted a comment to this rulemaking. The coalition includes: 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.
- The groups commend the DOJ for its ongoing use of its CARES Act authority to move imprisoned individuals to 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 in 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 full comment is available here.
Democracy Forward’s body of work on this subject includes:
- Letter to DOJ OLC urging withdrawal and reconsideration of the Trump era OLC memo.
- “Keeping Them Home.” – August 17, 2021 publication in Inquest. This piece emphasizes that “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.”
- “Home Rule” – February 4, 2022 publication in Inquest. This piece emphasizes that “In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities.”