Right now, thousands of people across the country are wondering if the end of the pandemic will mean the end of their freedom. All of them were allowed to leave federal prison over the past year and a half under an emergency law called the CARES Act, which was enacted as COVID was tearing through jails and prisons at rates five times worse and more than twice as deadly as what was happening in the broader public. The new law expressly authorized the Bureau of Prisons to place people in federal prison in home confinement instead, where they could protect themselves from infection and begin the process of reintegrating into society. The goal was to reduce overcrowding in prisons, making the environment safer for everyone, including people who remained incarcerated and corrections officers alike. Invoking the act, the Bureau of Prisons placed thousands of people whom it deemed “low risk” on home confinement. It did not expect to bring any of them back to prison. In fact, the Bureau of Prisons director told Congress it was sending these people home “for service of the remainder of their sentences.”
But in the last week of the Trump administration, a group of lawyers in the Department of Justice’s Office of Legal Counsel, known for short as OLC, wrote a memo telling the Bureau of Prisons that when the pandemic ends, BOP will have to recall to prison most people with more than six months remaining on their sentence. The memo said this is what Congress’s emergency law requires. And according to recent reporting in the New York Times, some officials in the Biden administration think this Trump-era memo correctly interprets the law.
Read the OLC MEMO
OLC Home Confinement MemoPDF
It doesn’t. The memo’s legal analysis is wrong, and following it would be a grave injustice. The Department of Justice can and should rescind the memo. Until it does, between 2,000 and 3,800 people who have spent the past year at home, reconnecting with their families and communities, with the understanding that they would remain home for the rest of their sentences, will live in fear that they will be sent back to federal prison as soon as the pandemic ends.
The Trump Administration’s Parting Surprise
Home confinement in the federal system is a stepped-down form of incarceration where people are no longer held in prison and often return to their homes and families. People on home confinement are generally granted some level of personal autonomy to reintegrate into their communities and many obtain jobs or pursue education, even though they are significantly limited in their ability to leave their residence. Typically, BOP can place people on home confinement only for the last six months of their sentence. During the COVID emergency, however, people with more than six months remaining on their sentences became eligible for home confinement, and BOP used that authority for thousands of people. Those people are now at risk due to OLC’s conclusion that the CARES Act requires many people on home confinement to return to prison at the end of the pandemic, because OLC memos are binding within the executive branch. That means that unless the memo is rescinded, agencies like the Bureau of Prisons must follow it.
read the coalition memo
Coalition Home Confinement MemoPDF
Recognizing the severe injustice that would flow from reincarcerating people who have complied with the rules of home confinement, a diverse and bipartisan coalition has asked President Biden to use his clemency power to prevent that result. But clemency is not the only option. As our organization, Democracy Forward, recently explained in a detailed memo coauthored with FAMM, the Justice Action Network, the Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and the Tzedek Association, DOJ and OLC can and should reconsider the Trump-era OLC’s analysis and rescind the memo, because it is simply incorrect on the law.
Start with the Text
There is a cardinal rule of statutory interpretation: begin with the text. And in this case, the text is clear. Here is what it says:
During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau [of Prisons], the Director of the Bureau may lengthenthe maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.
This means that during the pandemic state of emergency, if the Attorney General concludes that the pandemic is adversely impacting federal prisons (which has occurred), the BOP “may lengthen” the six-month window at the end of a person’s sentence during which the person would ordinarily become eligible for home confinement. Indeed, the word “lengthen” suggests that Congress expanded home confinement, rather than curtailed it. Moreover, the verb “place” denotes a one-time event, rather than an ongoing exercise of authority. Taken together, the statute thus describes a single event—a placement on home confinement—that can take place at any point within an expanded period of time. The CARES Act expands the pool of people whom BOP can decide to place on home confinement. That is all.
Equally notable is what the statute does not say. Nowhere does it contain any indication whatsoever that Congress planned for thousands of people to have to return to prison when the pandemic emergency ends. There is no textual basis for OLC’s reading. And that’s a problem. Remember that the preexisting home confinement statute—the one the CARES Act slightly altered—makes clear that home confinement is meant for the end of a person’s sentence. That means there is typically no return to prison, absent some violation of the home confinement rules. It’s a classic legal principle that if Congress wants to upend a settled understanding (like the idea that home confinement comes at the end of a sentence, not in the middle) it will do so explicitly, in clear language. But nothing in the text of the CARES Act suggests that Congress meant to change the usual procedure other than by “lengthen[ing]” the six-month cut-off.
Next Consider the Purpose
OLC’s interpretation doesn’t just contravene the statutory text; it also makes no sense in light of the statute’s purpose. The preexisting home confinement statute (which the CARES Act lengthened) says that home confinement is intended for the “final” part of a person’s sentence to “afford th[e] prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” Put in plain language: home confinement helps a person preparing to reenter society with the hard task of readjusting to life outside. It’s an opportunity to reestablish relationships, apply for jobs, secure housing, locate sources for medical care, and reintegrate into a community that may have changed dramatically during their absence.
These are not hypothetical ideas: take, for example, the story of Wendy Hechtman, who has spent her time on home confinement reconnecting with her children, participating in drug counseling, and working at a part-time job helping formerly incarcerated individuals. All of these important goals—and progress made towards them— will be nullified if she were abruptly sent back to prison, severing the connections she so painstakingly made. The same is true for thousands of others.
The purpose of home confinement becomes even clearer once you contrast it with a separate tool that the BOP can use to transfer people from prison: something called a furlough. Unlike home confinement, the statute authorizing furloughs allows BOP to “release a prisoner from the place of his imprisonment for a limited period” to engage in certain activities. In other words, unlike the home-confinement statute, the furlough statute expressly provides for a temporary release from a federal facility, with the expectation that the person placed on furlough will return to a federal facility at the end of the furlough period.
If Congress had actually meant for the CARES Act to create a form of temporary transfer, contemplating a return to prison at some point, it could have (and presumably would have) expanded BOP’s furlough authority, not its home confinement authority. Or Congress could have simply stated outright that home confinement terms would end with the termination of the national emergency created by the pandemic. The fact that Congress did neither tells you all you need to know.
Indeed, elsewhere in the CARES Act, Congress proved that it knew exactly how to draft a temporary benefit for people in prison: the statute includes a provision giving BOP authority to allow certain video and telephone calls for free—but only during the emergency period. That section says:
During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau [of Prisons], the Director of the Bureau shall promulgate rules regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates, during the covered emergency period.
You’ll see that this provision begins with language identical to the home confinement provision: the opening phrase “[d]uring the covered emergency period” indicates when the Director of the Bureau of Prisons is permitted to enact a rule or a policy. But then the language diverges. The no-cost telephone-call provision uses the phrase “during the covered emergency period” a second time: to explain when those no-cost telephone calls can occur—that is, only until the pandemic emergency ends. But the home confinement statute doesn’t repeat that critical phrase. And as the Supreme Court has explained in other contexts, the fact that Congress used express language to create a temporary benefit elsewhere in the CARES Act but not in the home confinement provision means the two provisions should be read differently. But the OLC memo simply ignored this other section of the statute, and didn’t account for the textual distinction in its analysis.
Ignore the Red Herrings
To reach its incorrect conclusion, the OLC memo placed a lot of weight on the fact that the CARES Act’s expansion of home confinement ends thirty days after the official pandemic state of emergency. Focusing on this thirty-day period, the memo concluded that the lag time must mean that Congress wanted to give BOP time to recall thousands of people to prison.
This conclusion is nothing more than speculation. The OLC memo could not and did not point to anything in the statute’s text, structure, or legislative history suggesting that the thirty-day period relates to terminating home confinement already granted. OLC’s proposed explanation for the thirty-day lag time doesn’t even make sense. The leader of the union representing BOP employees recently testified before the Senate Judiciary Committee that the current “staffing crisis” at BOP “creates a clear and present danger to every employee, inmate, and the community at large.” Particularly in light of that staffing shortage, it would not be practical—and likely not even possible—for BOP to arrange the staff, facilities, and transportation to reincarcerate thousands of people in less than a month’s time, all while likely defending hundreds or thousands of legal challenges from affected people.
Moreover, there are other, more plausible, explanations for the thirty-day grace period, all of which the OLC memo ignores. For one, the thirty-day window gives BOP time to complete home confinement placements already in progress on the day the emergency ends, and thus avoids the abrupt cruelty of telling someone who was slated to go home that their placement has been canceled. Just as plausibly, the lag-time could be a concession to the tragic reality that the pandemic has been dramatically worse and more deadly inside of prison. Recognizing that this uniquely severe public health emergency may not be resolved as quickly in prisons as outside of them, Congress may have created the thirty-day window to afford itself—or BOP—time to create prison-specific health and safety rules once the broader state of emergency outside of prison ends.
A Broken Promise
Setting aside the errors in statutory analysis, the Trump-era OLC memo is also missing a key discussion: it doesn’t address the fact that the people BOP placed on home confinement organized their lives, jobs, and relationships based on BOP’s statements that they would be able to serve out the rest of their sentences at home as long as they abided by the rules. Brian Carr, one such person who came home to his family from prison, has spoken about the difficulty of explaining the situation to his young children: “They’re gonna feel like I did something wrong again, and I actually didn’t.”
Automatically sending someone like Mr. Carr back to prison isn’t just immoral (though it is that, too). It also may well be unconstitutional—a point the OLC memo never even considers. People placed on home confinement have a constitutional right to due process before they are reincarcerated. OLC’s memo did not address whether that constitutional requirement, or BOP’s independent obligation to consider reliance interests before making a policy change, would impede BOP’s ability to comply with the memo’s instruction. And this conflict also reveals why OLC’s statutory analysis is incorrect in the first place: statutes are typically interpreted to avoid any conflict with constitutional rights.
A Necessary Rescission
The Trump-era memo is legally flawed multiple times over. It incorrectly interprets the statutory text; it is divorced from all discernible Congressional intent; it rests on dubious red herrings; and it ignores critical constitutional considerations. And the human cost of this flawed legal analysis is enormous. Requiring thousands of people on home confinement to constantly fear a return to prison—or even worse, actually sending them back—is not only antithetical to the goals of home confinement; it is cruel. Fortunately, that need not happen here. Rescinding an OLC memo should never be taken lightly. But here, where the legal analysis is demonstrably incorrect, and the consequences dire, the rare exception is warranted.
Keep them home
Requiring thousands of people on home confinement to constantly fear a return to prison—or even worse, actually sending them back—is not only antithetical to the goals of home confinement; it is cruel.