After the COVID pandemic struck in March 2020, tens of thousands of federal prisoners were allowed to serve their sentences at home.
Many have rebuilt their lives, but are now in legal limbo, unsure of whether they’ll have to head back to prison.
Biden says he regrets his role as an architect of mass incarceration. If so, the president should make sure these people can stay home.
This is an opinion column. The thoughts expressed are those of the author.
Sign up for 10 Things in Politics newsletter for the biggest stories in politics & the economy.
Something is loading.
By clicking ‘Sign up’, you agree to receive marketing emails from Insider
as well as other partner offers and accept our
Terms of Service and
Americans know we’re experiencing a mass incarceration tragedy. We lock up more people — both per capita and in raw numbers — than even the world’s worst human rights abusers.
But it appears that at long last, we’re no longer subscribing to the idea that imprisonment automatically equates to “justice.”
Recent polling by the progressive-leaning firm Data for Progress shows that a majority of Americans, regardless of political affiliation, agree with the statement that they “somewhat” or “strongly” support presidents and governors who commute the sentences of non-violent offenders.
And even President Joe Biden — the once-boastful architect of the nation’s most destructive and counterproductive “tough on crime” laws — said he’d work to cut incarceration rates by more than 50%.
That’s why it’s both befuddling and outrageous that the Biden administration has taken no action to protect the thousands of people who were released to home confinement early in the pandemic — and who are now at risk of being sent back to prison once the federal government officially ends the COVID emergency — which could happen at any time.
The sweeping Coronavirus Aid, Relief, and Economic Security Act (CARES Act) l, signed into law by then-President Donald Trump on March 27, 2020, included a provision authorizing the attorney general to increase the number of people permitted to serve their sentences in home confinement, as a means of decreasing the spread of COVID in federal prisons.
Then-Attorney General Bill Barr sent a memo that same week instructing the Bureau of Prisons (BOP) to lower the thresholds required for inmates to serve their sentences at home.
In normal times, the maximum time a person can serve in home confinement is 10% of their sentence or six months, whichever period is shorter. Barr’s March 2020 memo removed the six month limit during the COVID public health emergency, and placed a priority on people who had served at least 50% of their sentence, or if they had served 25% with less than 18 months remaining.
Barr’s guidelines led to about 27,000 people being reunited with their families and given a new lease on life, according to the Bureau of Prisons. They were never told they would have to return to prison. In fact, they were told the opposite, legal experts familiar with the situation told me.
These were non-violent offenders, the “model” prisoners incarcerated in the lowest-security facilities, many of them nearing the ends of their sentences. And about 99% of them haven’t violated the terms of their home confinement or since been arrested, USA Today reported in May.
”They’re doing well. They’re working and going back to college. They were told they were going to be able to stay home, so they told their families that. If they’ve made it through six months or a year [of confinement] and they’re doing okay, why in the world would you send them back?” Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums (FAMM) told me.
Barr resigned in December 2020, but on January 15, 2021 — with just five days remaining in the administration — Trump’s Justice Department (DOJ) issued a new memo stating the BOP can and should order a substantial number of these people back to prison once the federal government officially ends the COVID emergency.
That means thousands of people who have rebuilt relationships, secured employment, and otherwise abided by the terms of their release may be headed back to lockup.
While more than 7,000 people are still in home confinement, roughly 3,000 have met the qualifications to serve out the rest of their sentences at home. But that still leaves about 4,000 people’s lives dangling by a string.
BOP Director Michael Carvajal told the Senate Judiciary Committee in April that “there’s no rush” to return these people to prison, adding that the agency plans to “use good judgment and common sense and work within the law” and doesn’t seek to “arbitrarily” disrupt anyone’s lives.
Biden’s DOJ and Attorney General Merrick Garland haven’t shown any indication that they will rescind the Trump DOJ’s January memo. And President Biden hasn’t publicly said a word on the topic.
That leaves thousands of people — as well as their loved ones, employers, and others who count on them — in an indefinite state of limbo.
”I am thankful that I have been home, [but] it is horrific not knowing what lies ahead, even though I’m doing everything that I’m supposed to be doing,” said Malissa Myles, a 53-year-old grandmother from Georgia said in a video testimonial.
Myles has been working full-time at night while home-schooling her granddaughters — one of whom has special needs — during the day while their mother works.
”It should be time for me to find my own place nearby so that my life can move forward, and my grandchildren can visit at Granna’s house, as it should be. But under these circumstances, I can’t even entertain the idea,” Myles said.
”I know that I had to be punished for the poor choices that I made, and I feel that I have adequately and successfully learned my lesson and paid my dues,” she added. “I was never told that there might be a chance that I would have to return … the not knowing is torture!”
This is what a non-violent, first-time offender is doing with a second chance at life: abiding by the terms of her home confinement, earning a living, re-establishing a relationship with her family, and helping children in need.
It’s stories like Myles’ that FAMM is elevating through its “Keep Them Home” campaign.
FAMM also organized over twenty advocacy groups — including the American Civil Liberties Union (ACLU) — to co-sign a letter urging Garland to rescind the Trump DOJ’s memo which the letter argued was “incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety.”
I reached out to a number of people, some of them through FAMM, who are directly affected by this legal limbo.
Their specific circumstances differ, but they’ve all abided by the terms of their home confinement and are walking demonstrations of people who’ve owned their mistakes and are making the most of a second chance at life. Nothing would be gained by sending them back to prison, but many would suffer terribly, and needlessly.
Jackie Broussard, whose 32-year-old daughter, Steph, served more than seven years for drug conspiracy with intent to distribute heroin. Now Steph is reconnecting with her son, working in a warehouse (with health insurance!), and making plans to go back to school. She’s also clean and sober, according to Broussard.
Broussard is proud of Steph’s resolute determination to stay sober, but adds it doesn’t make sense to send people back to prison — where drugs are prevalent.
Wendy Kraus-Heitmann, 46, was convicted of conspiracy of manufacturing and distributing fentanyl. She served about three years of a 15-year sentence before being released to home confinement via the CARES Act.
Kraus-Heitmann told me, “Even if you’re really conservative, tough on crime or whatever, there’s more accountability and supervision out here” than in prison.
”Out here I have to get a job, I have to pay my bills, I have to get regular drug and alcohol counseling,” Kraus-Heitmann said.
David McMaster, 56, served about half of a 15-year sentence for bank fraud before being released to home confinement. He’s re-established a relationship with his wife and kids, and is working as the vice president of business development for a beverage manufacture and distribution company. He’s also mentoring youths at his local church, and pursuing a doctorate in Christian theology and counseling.
”We were told specifically we are on home confinement for the duration of our sentences,” McMaster told me, echoing a common sentiment by those on home confinement. All of those I spoke with said the prison wardens and case managers told them they wouldn’t be coming back.
Now, no one knows for sure, because the Biden administration isn’t providing clarity on what lies in their futures.
President Biden declared April 2021 to be “Second Chance Month,” which he claimed would “lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions,” in part by “eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be.”
This is one of those rare instances where Biden actually has the power to put his money where his mouth is, because as president he can commute federal sentences and advise the DOJ to abide by his guidance.
And there’s bipartisan support for increasing the scope of government mercy.
Twenty-five members of the House — representing both parties — sent a letter to Biden in April urging him to halt “the Trump administration’s misguided scheme to send people back to prison.”.
Democratic Sen. Dick Durbin of Illinois and Republican Sen. Chuck Grassley of Iowa introduced a bill — cosponsored by a bipartisan group of senators — calling for the BOP to expand the eligibility criteria for home confinement, particularly for nonviolent offenders, the elderly, and those who have served at least half of their sentences.
But to date, Biden has done nothing.
A BOP spokesperson told me in an email that the agency “will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences. For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”
The spokesperson added the BOP “is taking steps to ensure individualized review of more inmates who might be transferred.” (The DOJ did not respond to my requests for comment.)
It remains possible that no one released to home confinement will be sent back to prison. But it is a legitimate concern, one which is causing mental and emotional “torture” for those whose lives hang in the balance — as well as for their loved ones.
Biden says he’s learned the error of his ways, after having spent a long career in the Senate crafting laws that contributed to mass incarceration.
Rescinding the Trump DOJ’s memo would only affect the sentences of about 4,000 people, but it would positively affect the lives of many more.
And it would be a hell of a good start for Biden to prove his contrition is genuine, and that he understands that punishment is not a synonym for justice.
(Correction: The headline and text of this column originally indicated that 7,000 people are potentially at risk of being sent back to prison. While more than 7,000 people released via the CARES Act are still serving time in home confinement, only about 4,000 remain at risk of returning to prison. We regret the error.)
Something is loading.