July 20, 2021

Durbin, Booker: We Should Not Force Individuals on Home Confinement to Return to Prison

Following new reports that the Biden Administration will enforce a Trump-era opinion, Senators note that the CARES Act does not require or permit BOP to recall prisoners serving their sentences at home under supervision during the COVID-19 pandemic

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Cory Booker (D-NJ), Chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, today responded to reports that the Biden Administration has decided that thousands of nonviolent inmates who were released on home confinement to reduce the spread of COVID-19 will be required to return to prison one month after the official state of emergency for the pandemic ends.

“Individuals on CARES Act home confinement have posed no threat, and are already reintegrating into society, reconnecting with their families, and contributing to our economy,” said Durbin.  “I have repeatedly urged the Department of Justice to rescind a Trump-era legal opinion that would needlessly force thousands to return to prison.  If this opinion is not withdrawn, the Biden Administration must use other legal tools – like compassionate release and clemency – to ensure that no inmate who has successfully transitioned to home confinement is returned to prison.”

“The Trump-era’s Office of Legal Counsel opinion that will require incarcerated individuals return to prison once the public health emergency ends serves no public health purpose and only works to unnecessarily incarcerate people who have succeeded in re-entering society,” said Booker.  “I am deeply troubled that the Department of Justice has not rescinded this opinion as we previously requested and urge the Department to reconsider our request.  If the Biden Department of Justice feels this is not possible, then other legal means must be considered to ensure that these individuals are not sent back to federal prison.”

In April, Durbin and Booker sent a letter to Attorney General Merrick Garland requesting that he rescind the Office of Legal Counsel’s January 15, 2021, memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (OLC opinion).   In their letter, Durbin and Booker noted that the OLC opinion, issued during the Trump Administration, incorrectly finds that following the emergency period of the pandemic, the Bureau of Prisons (BOP) must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities.  In fact, the CARES Act does not require or permit BOP to recall these prisoners.

In order to give BOP broader authority to reduce prison populations to help contain the spread of the virus, the CARES Act expanded BOP’s home confinement authority.  The Act provides that during the covered emergency period, BOP may lengthen the maximum amount of time a prisoner may be placed in pre-release home confinement under 18 U.S.C. § 3624(c)(2).  Recalling prisoners who are successfully transitioning to the community through home confinement is contrary to the requirements and purpose of § 3624(c)(2).

As of Tuesday, July 20, the Senators had not received a response to their April letter. 

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