In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities.


By Jessica Morton & Samara Spence for The Inquest

February 4, 2022

“In late December, thousands of people serving federal sentences on home confinement received welcome news. The Department of Justice rescinded a legally erroneous Trump-era memo that would have required the federal Bureau of Prisons to recall them to prison 30 days after the pandemic emergency is declared over — no matter how much they may have reestablished ties to their communities in the interim and how much they have demonstrated that they pose no threat. As we explained previously here in Inquest, home confinement is typically the final step in a person’s sentence, and is intended to help that person readjust to life outside — reestablishing relationships, securing jobs, locating housing, finding medical care, and applying for educational opportunities. Each of these goals was frustrated by the constant threat of reincarceration erected by the prior administration. As Attorney General Merrick Garland testified before the Senate, “It would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations.”

“In announcing DOJ’s reversal of the Trump-era memo, Garland announced a rulemaking process “to ensure that the Department lives up to the letter and spirit of the CARES Act,” the 2020 law that made it possible for thousands to serve out the remainder of their federal sentences in home confinement. He explained that DOJ will “exercise [its] authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

“What DOJ’s press release didn’t mention was that in a December 10, 2021 memorandum, obtained by the American Civil Liberties Union through a Freedom of Information Act request, BOP — the agency supervising people placed on home confinement — had different criteria in mind: “Sentence length,” which is to say, the amount of time that remains on a person’s sentence, “is likely to be a significant factor” in determining who would be re-imprisoned.

“Sentence length is not a reason to re-imprison anyone on home confinement. As we demonstrate below, a rule that includes sentence length as a “significant factor” for reincarceration, as well as other factors mentioned in the BOP memo, would likely not be legally defensible — and it would be simply unfair…”

Read the full piece here.