The Biden Administration Should Not Send Thousands of People Back to Prison

The Point

Last year, thousands of incarcerated people were returned to their families and communities in order to reduce the spread of the coronavirus in federal prisons. The Biden administration should reverse the last-minute Trump administration policy that would send them back.

The Biden administration should ensure that people returned home from federal incarceration during the pandemic are not arbitrarily forced back into prison: 

• The Department of Justice should rescind the Jan. 15 Office of Legal Counsel (OLC) opinion from the Trump administration requiring that many of those released to home confinement because of the pandemic return to prison once the health emergency is over. Leaving the opinion in place would mean that people like 71-year-old Dennis Alba, would be reincarcerated, despite having secured a job, housing, and basic necessities and already serving 19 years in prison.
• Further, President Joe Biden and Attorney General Merrick Garland should protect the long-term stability of these returning residents by granting clemency or compassionate release to those who have “demonstrated that they no longer need to be under federal supervision,” as a bipartisan group of federal lawmakers recently proposed. 
• The administration must continue to take steps to reduce the still-massive federal prison population. Biden pledged to reduce the number of people incarcerated in this country; he can start with the federal prisons. 

Keeping people at home and out of prison makes our communities safer and stronger: 

• Over 25 organizations recently sent an open letter to Garland, calling for the OLC opinion’s rescission, emphasizing that “[r]e-incarcerating thousands of individuals who are safely completing their sentences under home confinement while they reunite with their children, establish employment, and build ties to their community would undermine public safety and justice.” 
• As the bipartisan congressional letter pointed out, this Trump-era policy would “harm families, waste tax dollars, and undermine public safety.” Every person who was released was deemed “low risk” and many were also elderly or in poor health. According to the organizations’ open letter, only 1 person out of the 23,000 people who were released on home confinement has committed a new crime. 
• At a recent committee hearing with the Bureau of Prisons director, Republican Senator Chuck Grassley questioned the logic of reincarcerating people who have demonstrated they can be safely released from prison: “Obviously, if they can stay where they are, it’s going to save the taxpayers a lot of money, and it would also help people who aren’t prone to re-offend and allows inmates to successfully re-enter society as productive citizens.”
• Recent polling from The Appeal Lab and Data for Progress shows strong public support for even broader use of clemency power, even outside of the context of the pandemic. For example, 67 percent of likely voters—including 75 percent of Democrats, 68 percent of independents, and 56 percent of Republicans—support commuting the sentences of people with chronic illnesses that require long-term care. Similar numbers of people support commuting the sentences of people aged 55 or older as a means to reduce prison populations.

Dive Deeper

• Unless the Biden Administration Acts, Thousands Could Go Back to Federal Prison. A Department of Justice memo from January could have a devastating effect on many federal prisoners who have been released on home confinement.

• Pressure Grows on Biden To Rescind Memo That Would Send Thousands Released on Home Confinement Back to Federal Prison. (Reason) More than 4,000 people released on home confinement could be sent back to federal prison after the pandemic. Senators and advocacy groups say it’s cruel and unnecessary.

• Inmates Sent Home amid Pandemic May Have to Return under Trump-Era Policy. (Washington Post) Thousands of federal inmates serving their sentences at home under supervision during the coronavirus pandemic might have to return to prison when the pandemic ends, according to a Justice Department memo issued during the waning days of Donald Trump’s presidency.
• A Horrible Limbo. Families Against Mandatory Minimums shares messages it has received from those who were told they could serve the rest of their sentence on home confinement and now fear they may be reincarcerated.