At the beginning of the pandemic, states gave thousands of prison inmates home confinement to reduce the risk of spreading COVID-19 in prisons. The home confinement was only supposed to last until the health emergency was over.
Judicial reform activists have been urging Joe Biden and the Justice Department to revoke a Trump-era memo laying out the legal basis for home confinement, which said that inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.
But on Monday, the Biden administration said that DOJ lawyers had determined the memo was legally sound and couldn’t be unilaterally revoked.
But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations. Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.
The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.
That leaves two options if the prisoners are to be set free. Congress can pass a law to expand the Justice Department’s authority to revoke the memo or Biden could issue blanket commutations. Neither option appears likely. Congress will never agree to increase the authority of the Department of Justice and the political risks of a mass commutation from Biden are too great.
The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.
Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue.
“On the campaign trail and during your presidency, you have spoken about the importance of second chances,” the letter read. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”
This is more a matter of reform advocates wanting to willy-nilly release thousands of inmates simply because they’re already out of prison rather than any sensible legal or public safety issue being at stake. The government should only release felons — violent or not — on a case-to-case basis and only after a thorough evaluation of the inmate’s fitness has been completed.