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The federal prison in San Pedro, California

Exterior view of the federal prison at Terminal Island in San Pedro, California. At least 10 inmates have died of Covid-19 at the prison. (Photo: Los Angeles Times/Getty Images)

Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic

"As a candidate, Mr. Biden said he recognized the problems and injustices of mass incarceration, and he promised to reduce the federal prison population," wrote the Washington Post editorial board. "Here is a chance for him to keep that promise."

Julia Conley

Legal advocates are calling on the Biden administration to reverse a plan to return thousands of federal inmates to prison once the coronavirus pandemic ends, after the incarcerated people will have spent months if not years at home with their families in home confinement.

"While granting clemency to these individuals...won't change the fact that the United States is the world's leading incarcerator, it would be a powerful signal that the administration is prioritizing criminal legal system reform."
—Christopher W. Adams, NACDL

Officials at the U.S. Department of Justice concluded last week that about 4,000 people who have been serving their sentences in home detention since the CARES Act was passed last March will be legally required to return to prison after the state of national emergency is lifted following the pandemic.

The Biden administration said that former President Donald Trump's Office of Legal Counsel was correct in its analysis that the government's authority to keep the inmates in home detention "evaporates" after the pandemic ends.

Advocates say the cases of the inmates, who were incarcerated for nonviolent offenses, represent an opportunity for President Joe Biden to demonstrate a commitment to his campaign promise to expand programs that would offer alternatives to incarceration. Over the weekend, the hashtag #KeepThemHome went viral on social media as public defenders, progressive journalists, and legal experts demanded Biden reverse the policy.

"Six months into your administration, you're on the verge of separating thousands of families, sending 4,000 people released during Covid back into your federal prisons," public defender Scott Hechinger tweeted, addressing Biden. "They're working. Taking care of family. Going to school. And you're going to throw them away."

Advocates say the White House has the authority to keep the inmates in home confinement and that Biden could take executive action to commute the sentences.

"It's simple. And it is fair, given that these are people who have not given anyone any reason to doubt their safety," said Emily Galvin-Almanza, founder and executive director of Partners for Justice. "Keep them home."

The people who were eligible to be released into home detention had to meet certain security requirements. Congress included the prison releases in the CARES Act as Covid-19 was spreading rapidly through the prison system. More than 2,700 deaths from Covid-19 have been officially recorded within U.S. prisons, jails, and immigration detention centers but as the New York Times reported earlier this month, the actual toll may be far higher. 

According to testimony earlier this year by Michael Carvajal, director of the Bureau of Prisons, out of 20,000 people currently serving home confinement sentences—including people who were released under the CARES Act provision and those who are serving the end of their prison sentences at home under a law that pre-dates the pandemic—only 20 have been returned to prison for committing offenses, representing a 99.9% success rate.

"There is absolutely nothing standing in the way of President Biden commuting the sentences of the approximately 4,000 individuals in CARES Act home confinement," Christopher W. Adams, president of the National Association of Criminal Defense Attorneys (NACDL), said in a statement last week. "The president should act with all deliberate speed to ensure that these individuals are not removed from their homes and communities in the middle of their re-entry process."

"While granting clemency to these individuals by commuting their sentences won't change the fact that the United States is the world's leading incarcerator, it would be a powerful signal that the administration is prioritizing criminal legal system reform, second chances, and the importance of a robust executive clemency power," Adams added.

The NAACP, ACLU, and Amnesty International are among the organizations that have called on Biden to use his clemency powers to commute thousands of sentences. In April, Sens. Dick Durbin (D-Ill.) and Cory Booker (D-N.J.) sent a letter to Attorney General Merrick Garland arguing that the Trump-era guidance could be interpreted to mean only that more inmates can't be sent home—not that the federal government is required to send people back to prison.

"As a candidate, Mr. Biden said he recognized the problems and injustices of mass incarceration, and he promised to reduce the federal prison population," wrote the Washington Post editorial board on Sunday. "Here is a chance for him to keep that promise and to allow people who have started to rebuild their lives to continue."

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