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Biden Justice Department reverses on returning federal convicts on home detention to prison

Under intense pressure from criminal justice reform advocates, the Justice Department has reversed a Trump-era legal opinion that could have required several thousand federal convicts to return to prison from home confinement if the Biden administration declares an end to the pandemic-related national emergency.

With the rise of the Omicron variant, such a milestone seems remote, but the new opinion from the Justice Department’s Office of Legal Counsel meets demands from reformers and lawmakers that officials find a way to allow prisoners who’ve typically been living at home for a year or more under pandemic-related legal authorities to remain at home to serve out the remainder of their sentences.

The new opinion also reversed an opinion issued by DOJ lawyers five days before former President Donald Trump left office.

“We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration,” Assistant Attorney General Christopher Schroeder wrote in the new 15-page ruling.

According to the Bureau of Prisons, about 36,000 federal inmates were released early due to the pandemic, largely based on authority Congress included in the CARES Act passed in March 2020. Most have finished serving their sentences, but about 4,500 faced the threat of being returned to prison when the pandemic emergency terminates.

“Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority—we conclude that the better reading of and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends,” wrote Schroeder, who was confirmed to his post in October.

That was about two months after criminal justice and racial justice reformers expressed outrage about press reports that Biden administration lawyers had concluded that the legal opinion OLC issued in the waning days of the Trump administration was correct. Democratic lawmakers regularly pressed Attorney General Merrick Garland and other Biden appointees at DOJ to reverse course as Schroeder did Tuesday.

“BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy,” Schroeder added in the new opinion.

Schroeder’s opinion relied heavily on the views of the Bureau of Prisons. The current OLC chief repeatedly noted that before the Trump-era opinion was issued in January 2021, BOP officials said their view was that they have the legal flexibility to use their discretion to decide whether individual prisoners should remain

Many of those who leaned on the Biden administration to reverse course celebrated the new opinion.

“We thank Attorney General Garland for responding to our request to rescind this Trump-era opinion and look forward to continuing to work with the Biden Administration on community-based strategies to improve our criminal justice system,” said Sens. Dick Durbin (D-Ill.) and Cory Booker (D-N.J.).

“Thousands of people can now breathe a sigh of relief knowing they will be able to remain in their communities where they have been living and working,” said Udi Ofer of the American Civil Liberties Union. “The ACLU and allies on the right and left asked the DOJ and President Biden to keep people home, and today the Justice Department delivered. We commend Attorney General Garland and President Biden for listening to thousands of families who asked not to be separated from their loved ones.”

Ofer also said Biden should still take up advocates’ suggestion that he issue commutations to the convicts involved so that they can’t be sent back to prison if a new administration decides to return to the Trump-era legal view.

“We also recognize that the threat of eventual return to prison is still present, so we ask President Biden to use his clemency powers to provide permanent relief to families. A future administration may force people back to prison, so families will not have permanent closure until their cases are fully resolved,” the ACLU official said.

Sam Stein contributed to this report.

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