Published on: Tuesday, December 21, 2021

The Justice Department has reversed course in a legal analysis, which could allow thousands of people released from prison at the start of the pandemic to remain free once the coronavirus emergency ends (article available here).

On January 2021, then-President Donald Trump’s Justice Department’s Office of Legal Counsel issued an opinion that inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison. Previous coverage available here. Today, that was reversed and a new opinion will give the BOP discretion of leaving those transferred to home confinement at home until the end of their sentence.

The department's Office of Legal Counsel's new legal opinion concluded the Bureau of Prisons "has discretion to permit prisoners in extended home confinement to remain there." The Office of Legal Counsel’s letter stated that, “Having been asked to reconsider, we now conclude that section 12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.

Attorney General Merrick Garland asked the OLC to reconsider the issue after personally reviewing the law. The move comes after months of intense pressure from a coalition of advocates across the political spectrum, who had urged the Department of Justice and the White House to reconsider.

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a written statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison."

The memo added: “We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. 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 section 12003(b)(2) 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. Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.”