Prisoners Freed During COVID are ‘Twisting in the Wind,’ say Reformers

During the height of the pandemic, the CARES Act allowed nonviolent federal inmates to be released home to lower the prison population and stop the spread of the coronavirus. Now that the national emergency is ending, many must go back behind bars — unless President Joe Biden or Congress heed growing calls to keep them out of prison, argues Scott Shackford in an opinion piece for Reason.

Shackford cites a letter published by 20 criminal justice reform activist groups that says Biden has the authority to commute the sentences of 4,000 federal prisoners who were temporarily released under the Donald Trump administration.

The letter reads in part:

President Biden, we ask that you use your power of clemency to commute the sentences of people living in home confinement due to the CARES Act and prevent this impending crisis. We ask that you issue an order that contains a presumption that all people in home confinement under the CARES Act will have their sentences commuted, unless the Bureau of Prisons can prove an articulable and current threat of violent harm.

The origins of the present crisis date to the last days of former President Trump’s term in office, when the Justice Department’s Office of Legal Counsel issued a detailed note outlining the strict interpretations of the law’s new pandemic home-confinement provision.

According to the memo, “once the government declares the pandemic has ended….many of the inmates will have to return to prison. ”

Typically, the Bureau of Prisons releases federal inmates to carry out the rest of their nearly-fulfilled sentences at home, and only forces them back in custody if they violate the terms of the early release.

Under the CARES Act, federal inmates needed to be eligible for release — meaning they had to be nonviolent offenders, have served half their sentences, and have good behavior or have high vulnerability to COVID-19.

Despite these strict requirements, advocates and former inmates alike worry that once the federal government signals the end of the pandemic’s state of emergency, these inmates will all be re-housed in their carceral facilities.

Reformers note that in the 16 months since the CARES Act was passed , less than 1 percent of freed incarcerees have violated the terms of their release.

The Washington Post reported in June that only five of these people had committed new crimes.

“The Biden administration can fix this,” Holly Harris, president and executive director of the Justice Action Network, said in a prepared statement. “Yet for months, they’ve kept these 4,000 people and their families twisting in the wind, unable to fully connect with their families, find employment, and contribute to their communities.”

“It’s cruel, it’s wasted tax dollars, and it doesn’t make us any safer,” Harris continued.

The letter from justice reformers has found support among legal experts in the Biden administration, claims Shackford.

As Biden comes under heavy fire over charges that he has failed to live up to earlier pledges for a criminal justice overhaul, the reformers argued in their letter that this was an opportunity to prove the critics wrong.

“On the campaign trail and during your presidency, you have spoken about the importance of second chances,” the letter declared.. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school.”

The advocacy groups conclude, “We urge you to provide clemency now to people under CARES Act home confinement.”

The letter to President Biden on behalf of advocacy groups can be accessed here.

This summary was prepared by TCR staff writer Andrea Cipriano.