Durbin, Booker Call On AG Garland To Rescind Trump-Era OLC Opinion That Would For Individuals On Home Confinement To Return To Prison Following Pandemic

04.23.21

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 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 note 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.

'For the reasons above, the OLC opinion incorrectly interprets the CARES Act, and we ask you to rescind it,' the Senators wrote.

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 prerelease home confinement under 18 U.S.C. § 3624(c)(2).

According to the OLC opinion, those on home confinement under the CARES Act authority must be returned to custody when the emergency period of the pandemic ends. The CARES Act, however, contains no such requirement, and recalling prisoners who are successfully transitioning to the community through home confinement is contrary to the requirements and purpose of § 3624(c)(2).

Since March 26, 2020, BOP has released more than 24,000 inmates to home confinement. This includes inmates who were near completion of their sentence and eligible for home confinement under § 3624(c)(2) prior to the CARES Act and those released pursuant to the expanded authority under the CARES Act. Most of these inmates have completed their sentences, and almost all have been successful on home confinement.

Full text of today's letter is available here and below:

April 23, 2021

Dear Attorney General Garland:

We respectfully request that you 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'). The OLC opinion 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.

On March 27, 2020, Congress passed and the President signed the CARES Act, providing critical relief from the effects of the coronavirus pandemic. 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 prerelease home confinement under 18 U.S.C. § 3624(c)(2).

Section 3624(c)(2) provides that BOP must ensure that prisoners serving terms of incarceration spend the final months of that term 'under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.' Ordinarily, prisoners may be placed 'in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.' Under the CARES Act, if the Attorney General found that the pandemic materially affected the functioning of BOP, the Director of BOP was authorized to expand this period and place prisoners on home confinement earlier than otherwise authorized. Attorney General William Barr made the necessary finding on April 3, 2020, and BOP began exercising this authority.

From March 26, 2020 to date, BOP has released 23,637 inmates to home confinement. This includes inmates who were near completion of their sentence and eligible for home confinement under § 3624(c)(2) prior to the CARES Act and those released pursuant to the expanded authority under the CARES Act. Most of these inmates have completed their sentences, and almost all have been successful on home confinement. On March 18, 2021, at a hearing before the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies, BOP Director Michael Carvajal testified that BOP returned just 21 of the more than 23,000 prisoners released to home confinement during the pandemic to BOP facilities due to rule violations, and just one of those was for a new criminal offense.

According to the OLC opinion, those on home confinement under the CARES Act authority must be returned to custody when the emergency period of the pandemic ends. The CARES Act, however, contains no such requirement, and recalling prisoners who are successfully transitioning to the community through home confinement is contrary to the requirements and purpose of § 3624(c)(2). The plain text of the CARES Act provides BOP with authority to lengthen the amount of time a prisoner may serve in home confinement. It is that authority (the authority to make a placement decision), not the consequences of those decisions, that is limited to the emergency period of the pandemic. As long as BOP exercises its authority during the covered emergency period, the consequences of those decisions-prisoners serving time in home confinement-continue beyond that period. The purpose of § 3624(c)(2) is to allow prisoners to finish the remainder of their sentence in home confinement to allow 'a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.' Recalling prisoners, absent a violation of the terms of release, is contrary to that goal.

For the reasons above, the OLC opinion incorrectly interprets the CARES Act, and we ask you to rescind it. In addition, we ask that you provide us with the number of prisoners on home confinement who would not qualify for home confinement absent the authority of the CARES Act.

Thank you for your time and consideration. We look forward to your prompt response.

Sincerely,

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