Justice

Refill Our Federal Prisons? Say It Ain’t So, Joe.

The administration is on track to reincarcerate thousands of people deemed low-risk and sent to home confinement

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(Image via Getty)

President Joe Biden is about to preside over the fastest expansion of the federal prison population in history – as well as the cruelest and most unnecessary. His administration is on track to reincarcerate thousands of people that the Trump administration deemed low-risk and sent to home confinement when COVID-19 was spreading in the prisons. What in the world is the president thinking?

Some history: In March 2020, as the threat of COVID-19 became clearer, Congress passed legislation to provide emergency assistance to the states and individuals. The law included a smart, life-saving provision to allow the attorney general to expand the amount of time people in federal prison could spend on home confinement.

Under normal circumstances, the Bureau of Prisons (BOP) is authorized to send someone to home confinement only at the very end of their sentence, i.e., six months or 10 percent of a sentence, whichever is less. But with COVID-19 spreading among people in prison – sitting ducks who have no way to social distance – Congress wisely gave the attorney general the power to reduce the population.

Then, Attorney General William Barr responded by establishing criteria for who should be released. Priority was given to those who had no violence in their record, had scored the lowest on the prison system’s risk assessment tool, had no disciplinary infractions in the past year, and had one or more of the factors that the CDC determined made them vulnerable to COVID-19.

There were some problems with the criteria – the risk assessment tool was not designed for this kind of emergency purpose, to name one – and implementation by wardens around the country was uneven. Yet the home confinement provision undoubtedly saved lives.

Roughly 7,400 individuals are currently serving the remainder of their sentences at home, most with electronic monitors on their ankles. Between 2,000 and 3,000 of them are serving extended home confinement terms, thanks to the authority Congress gave to the attorney general. All of them were told when they left prison that they would serve the duration of their sentences at home unless they violated the rules or re-offended.

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And then the government reneged.

On January 15, 2021, with just four days left in the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a legal memo that concluded that everyone serving an extended term on home confinement will have to return to prison when the pandemic emergency period is declared over. No new home confinement grants, OLC said, but also the grants already made will expire.

The OLC memo makes no sense. First, the home confinement provision passed by Congress did not say anything about sending people back to prison. If that is what Congress intended, it could have said so, especially since people on home confinement are never required to return to prison unless they mess up.

Second, if the Justice Department thought the law required people to return to prison, why did the BOP, which is a part of the department, tell people they were releasing over the past year they were not expected to come back? The BOP has a different mechanism to send people home temporarily, called furloughs. Home confinement is different.

The OLC memo has panicked the people and families whose loved ones would be forced to return to prison. I have talked to several of them. They have done everything the public would want of them. They found work, started paying taxes. Some are taking college courses and learning new skills.

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All are reconnecting to their families and communities. A 74-year-old woman in Maryland, Gwendoyn Levi, who served more than 16 years for a drug offense, is now taking care of her 94-year-old mother. She knows that if she has to return to prison, she won’t see her mother alive again.

Almost all of them are wearing ankle monitors that track their every movement. One man I spoke with, Chad Ducey, has to drive seven hours roundtrip every Saturday for a urinalysis. He gets tested more now than he did inside. These folks know if they violate the rules of their supervision they will be sent back to prison.

Two things are clear. First, forcing these people to return to prison will not increase public safety. They were already considered the lowest of low-risk people in the system. They were serving in prison camps, which have no walls or fences around them. And they were chosen for home confinement by Bill Barr, the man who released a white paper titled, ”The Case for More Incarceration,” during his first stint as attorney general.

Second, hauling Gwendolyn and Chad and the thousands like them back to prison would be unspeakably cruel. I can say from personal experience that saying goodbye to one’s children and family to go to prison is one of the most difficult things a person can experience. Making them do it twice, unless absolutely necessary, is torture.

I talked to a man whose 10- and 12-year-old children asked him when he was placed on home confinement if he would have to go back. “No,” he promised them, relying on what prison officials told him. He now waits anxiously for the Biden administration to keep the government’s word so that he can keep his.

President Biden has been in office for nearly three months. During that time, his Justice Department has wisely rescinded the harsh prosecutorial charging memo issued by former Attorney General Jeff Sessions. It also has reversed the Trump Justice Department’s misguided stance in an important federal drug sentencing case. The president clearly understands the importance of reversing policies that lack justification.

So why not here? All the president has to do is rescind or overrule the OLC memo issued in the final hours of the Trump administration. If he does, he can keep the government’s word to the families that have been reunited – and keep his campaign pledge to reduce incarceration.

But if he fails to act, his administration will have to accept responsibility for refilling the federal prison system with thousands of people who were deemed safe enough to be sent home by Bill Barr. As the president himself might say, “C’mon, man.”

Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

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