May 7, 2021 - Politics & Policy

Home confinees face imminent return to prison

Illustration of a man standing in a dark cell looking up towards a tiny window in the shape of a house casting light inside his cell.
Illustration: Aïda Amer/Axios

Thousands of prisoners who've been in home confinement for as long as a year because of the pandemic face returning to prison when it's over — unless President Biden rescinds a last-minute Trump Justice Department memo.

Why it matters: Most prisoners were told they would not have to come back as they were released early with ankle bracelets. Now, their lives are on hold while they wait to see whether or when they may be forced back behind bars. Advocates say about 4,500 people are affected.

What they're saying: Chad Ducey, a 45-year-old from Indiana, said he would have been more guarded with his 10- and 12-year-old kids after being released had he known there was a chance of going back to prison.

  • "I would have handled the whole situation completely different, but I came back and went full bore into reestablishing that relationship and being the best Dad I can be," Ducey told Axios.
  • He said it seemed cruel to force a family to be separated twice for one crime.

Between the lines: People like Ducey, advocacy groups and members of Congress have pleaded with the current administration to rescind the DOJ Office of Legal Counsel memo opinion issued just days before Trump left office.

  • It found that the 2020 CARES Act — which gave the Bureau of Prisons authority to release inmates early — also requires it to recall people to prison to serve the rest of their sentence when the emergency period ends.
  • Senate Majority Whip Dick Durbin (D-Ill.) and Sen. Cory Booker (D-N.J.) sent a letter to Attorney General Merrick Garland last month, asking him to rescind the memo.

Criminal justice reform groups at least want the memo reviewed, new guidance issued or for the Justice Department to find other ways to allow people who've been released to serve the rest of their time at home.

  • Groups like Justice Action Network, Families Against Mandatory Minimums and the ACLU are now calling on Biden to use his clemency powers to commute the sentences of people who would be forced back to prison.
  • '"Just the thought of me having to go back — I've had to stop and take my medicine," said Miranda McLauren, a 43-year-old Black woman.
  • She served multiple Army tours in Iraq before being convicted of low-level drug charges. She said she struggles with PTSD and depression.

BOP spokesperson Randilee Giamusso told Axios the bureau can use discretion for people whose sentences are almost over, but for others, "this will be an issue only after the pandemic is over."

  • The national emergency was recently extended, and the bureau "is focused right now on expanding the criteria for home confinement."

The big picture: Biden has faced criticism for his role in the 1994 Crime Bill, which substantially increased prison populations.

  • "This is potentially a larger increase in the federal prison population," Justice Action Network federal director Inimai Chettiar told Axios.
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