Justice Department’s Office of Legal Counsel, which issued a previous memo under the previous administration that inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison, maintains its position (article available here). Previous coverage available here.
The current Office of Legal Counsel team has concluded that the previous memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations. Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.
The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.
That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.
When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown.