Reversing Trump policy, Biden's DOJ says federal inmates released into home confinement during COVID won't need to return to prison when the state of emergency ends

• Federal inmates released to home confinement during the pandemic won't have to go back to prison, DOJ says.
• Criminal justice advocates and Democratic lawmakers wanted Biden's DOJ to reverse the Trump policy.

The Justice Department on Tuesday said thousands of federal inmates released to home confinement to reduce the risk of spreading COVID-19 will not be required to return to prison once the Biden administration lifts the pandemic-related state of emergency.

The decision marked a reversal from a Trump-era legal memo that criminal justice advocates and Democratic lawmakers had pressured the Biden administration to revoke.

DOJ's Office of Legal Counsel determined, in a 15-page memo, that federal law "does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends."

The office made the determination based on its review of the CARES Act, a law passed in response to the pandemic that allowed for the release of federal inmates into home confinement. In its reconsideration of the Trump-era opinion, the Justice Department found that the CARES Act gave the federal prison system "discretion to permit prisoners in extended home confinement to remain there."

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," said Attorney General Merrick Garland, in a prepared 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," he added.

The new legal opinion was signed by Assistant Attorney General Chris Schroeder, a former Duke University law professor who led the Biden transition team that focused on the Justice Department. In the opinion, Schroeder wrote, "we not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration."

With the emergence of the omicron variant, the end of the state of emergency seems distant. But the new opinion gives hope of continued home confinement for more than 4,000 prisoners who face the threat of being returned to prison once the state of emergency ends.

About 36,000 inmates were released to home confinement during the pandemic, according to the Bureau of Prisons, and most have finished serving their sentences.

In recent months, Garland had come under pressure from Democrats to revoke the previous legal memo, which DOJ's Office of Legal Counsel issued in the waning days of the Trump presidency. Sen. Dick Durbin, the top Democrat on the Senate Judiciary Committee, said in July that inmates released to home confinement in light of the pandemic "have posed no threat, and are already reintegrating into society, reconnecting with their families, and contributing to our economy."

The Justice Department said that the new interpretation of the CARES Act will avoid requiring the Bureau of Prisons "to disrupt the community connections these prisoners have developed in aid of their eventual reentry."

"Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy," DOJ added in the memo.