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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.

SAUL LOEB/AFP via Getty Images

Unless the Biden administration intervenes, thousands of federal prisoners released on home confinement due to the COVID-19 pandemic may be sent back to prison. 

On January 15, President Trump’s Department of Justice—which notoriously rushed to execute 13 people in the last months of the Trump presidency—issued a legal memo that requires that people in federal custody on home confinement, because of the pandemic and who would not otherwise qualify, return to prison once the health emergency is over.  

The federal CARES Act, passed last year, permits the attorney general to increase the amount of time a person can serve on home confinement in order to reduce the spread of COVID-19 in prisons, a provision that has led to the release of more than 23,000 federal prisoners. This remains the case for 30 days after the state of emergency has ended, but it does not require those released to return to prison. More than 7,500 people are currently on home confinement. 

The memo’s author is Jennifer Mascott, former deputy assistant attorney general at the Office of Legal Counsel. Mascott is a former law clerk for Supreme Court Justice Brett Kavanaugh from when he was on the U.S. Court of Appeals for the D.C. Circuit. (She testified on his behalf during the 2018 Senate Judiciary confirmation hearings, telling legislators that “he would be an outstanding Supreme Court Justice.”)

Mascott’s memo is “unwarranted and unsupported by the law,” according to a letter sent on Thursday to Biden and Attorney General Merrick Garland by more than two dozen community groups. The Biden administration can and must rescind it, they wrote. The groups note that, according to the director of the Bureau of Prisons, out of the tens of thousands of people released, only one has committed a new crime. 

“You have rightly acknowledged the toll of over-incarceration and the need to reduce the size of the federal prison population,” reads the letter to Garland and Biden. “Re-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.”

FAMM, one of the letter’s signatories, has launched the Keep Them Home campaign and is collecting signatures on a petition that calls on the Biden administration to rescind Mascott’s memo. Kevin Ring, the group’s president, told The Appeal that those who were released did not expect to have to return to prison.

“These folks came home and were told, ‘You’re not going to have to come back,’” said Ring. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”