HOME FOR THE HOLIDAYS – The Biden Administration Will Allow Prisoners on Home Confinement Under the CARES Act to Stay Home After the COVID-19 Pandemic

For the second year in a row, people throughout the United States are navigating how to celebrate important holiday traditions safely with friends and family in light of COVID-19.  This year, the Biden Administration has made the age-old saying, “there’s no place like home for the holidays,” a reality for one segment of the population: federal prisoners currently serving their sentences in home confinement.  On December 21, 2021, the Department of Justice reversed a Trump-era legal opinion which would have required the Bureau of Prisons (“BOP”) to reincarcerate individuals on home confinement at the end of the COVID-19 emergency.  

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which gave the Attorney General authority to expand eligibility for home confinement normally reserved for prisoners towards the end of their sentence.  On March 26, 2020, then-Attorney General William Barr instructed the BOP to grant certain eligible prisoners home confinement to control prison populations and to protect the safety of inmates.  Since March 2021, the BOP has transferred over 35,000 eligible prisoners to home confinement.  As of December 21st, the BOP had released 4,879 prisoners to home confinement under the CARES Act. 

In the final days of the Trump Administration, the Office of Legal Counsel issued an opinion stating that inmates who had been released to home confinement through the CARES Act would be required to return to prison within 30 days after the end of the COVID-19 emergency declaration (the “Trump OLC Opinion”).  Prisoners on home confinement were made aware for the first time since their release that they faced possible reincarceration if, and when, the COVID-19 pandemic emergency authorization ended. 

The Biden Administration faced several options: (1) to reverse the Trump OLC Opinion to allow individuals to remain on home confinement; (2) to grant clemency to some or all individuals released to home confinement; (3) to reincarcerate thousands of prisoners currently on home confinement at the close of the emergency authorization, leaving individuals on home confinement to seek relief through the BOP and the courts by applying for compassionate release.

On December 21, 2021, the OLC issued a revised opinion in which it concluded that the CARES Act “does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.”  The opinion found that the BOP has discretion to permit prisoners in extended home confinement to remain there and found that such an approach avoids disrupting the lives of prisoners on home confinement who have developed community connections necessary to successful reentry.

Until the December announcement, the Biden Administration had offered mixed messages on whether and to what extent it would carry out the Trump OLC Opinion and reincarcerate those released to home confinement.  In September 2021, the Biden Administration committed to granting relief to a subset of prisoners on home confinement under the CARES Act.  Specifically, the Administration asked for formal commutation applications from individuals who could meet certain, limited criteria: nonviolent drug offenders released to home confinement under the CARES Act with four years or less remaining on their sentence.  Under that proposal, individuals on home confinement with more than four years remaining on their sentence or who were incarcerated for other offenses would still be subject to reincarceration, notwithstanding that they met the strict criteria for home confinement eligibility and complied with the terms of their home confinement.  But the Administration already faces a backlog of thousands of clemency petitions.  Inviting a subset of individuals to apply for clemency would only have increased that backlog by requiring Administration officials to wade through thousands more applications to ensure compliance with the limited criteria.

The Biden Administration contemplated that, in addition to relief for some individuals on home confinement through clemency, others could seek a sentence commutation through compassionate release under 18 U.S.C. § 3582.  The statute permits a court to reduce an inmate’s sentence if (1) “extraordinary and compelling reasons warrant such a reduction”; and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”  But compassionate release has historically met with limited success and remains fraught with uncertainty in courts.  Between 1984 and 2018, an average of just 24 prisoners each year were released under the compassionate release statute, which at that time required the BOP to move on an inmate’s behalf.  In 2018, with the passage of the First Step Act, inmates are now permitted to seek compassionate release on their own behalf.  Even with that change, obtaining compassionate release remains difficult, in part because Courts are split on what constitutes an “extraordinary and compelling” circumstance to warrant release.  Nearly 80% of compassionate release motions were denied in 2020.

Testimony from Attorney General Merrick Garland further muddled the Administration’s approach and suggested the Biden Justice Department disagreed with the mass reincarceration contemplated by the Trump OLC Opinion. On October 27, Garland told the Senate Judiciary Committee that it would be a “terrible” policy to return prisoners released on home confinement to prison at the end of the COVID-19 emergency and stated that the Justice Department was “reviewing” the Trump OLC Opinion.  Shortly after Attorney General Garland’s statements, a prosecutor in the Eastern District of Michigan opposed a motion by a prisoner on home confinement seeking compassionate release, arguing the defendant’s potential return to prison was speculative based on the Attorney General’s statements1.

Those mixed messages and lack of a clear path for relief have had significant consequences for those on home confinement, who are at once establishing lives outside of prison by finding employment, reconnecting with loved ones, and reintegrating into their communities, while simultaneously facing the stress and uncertainty of a possible return to prison.  Now, those released to home confinement have finally received some clarity.   After months of mixed messages and uncertainty, the Administration has taken an important step in demonstrating its commitment to meaningful criminal justice reform.

1 United States v. Patel, No. 2:11cr20468, ECF No. 1715 at 2 (E.D. Mich.) (filed Oct. 29, 2021).

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.


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As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.