CARES Act Returning Individuals to Prison
The CARES Act has received a great deal of coverage regarding the release of individuals and, now, the possible return to prison.
CARES Act History
As you know, the CARES Act, among other things, increased the amount of time that the BOP could send an inmate to home confinement during the pandemic:
“But in March 2020, as part of the CARES Act, a package of legislation responding to the pandemic, Congress gave the Justice Department the authority to lengthen the time the bureau may place an inmate in home confinement during the “covered emergency period,” which it defined as ending 30 days after whenever the declared national emergency over Covid-19 ends.
Many individuals were sent to serve their sentences on home confinement.
DOJ: Inmates Must Return to Prison
“On Jan. 15, five days before the Biden administration took office, the Office of Legal Counsel produced a 15-page memo concluding that the authority of the bureau to keep inmates in home confinement beyond the normal time “evaporates” when the emergency ends, and so such convicts would have to return to federal lockup.”
Current Administration Also Intends for CARES Act Relief Individuals to Return to Prison
While the memo was painted as a “Trump-Era Policy,” the Biden Administration has recently opined that the law was correctly interpreted:
“Essentially, the idea was that the law only restricts the moment when the Bureau of Prisons can make a decision to “place” a particular inmate in home confinement.
Under that view, after the official emergency period expires, the bureau could not send any additional inmates home who did not otherwise qualify such treatment, but nothing would require recalling back to prison those already placed in home confinement.
The Jan. 15 memo, however, had addressed that alternative interpretation and rejected it as not “tenable.” Among other things, it noted, Congress recognized that the end of the emergency period would have operational consequences for the inmates already in home confinement because it gave the bureau an extra 30 days.”
Further, the idea of a mass commutation for CARES Act individuals is also unlikely as “The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime. Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.”
Return to Prison is Disappointing
I am disappointed but not surprised. When we first read the CARES Act in our office, we believed that it was temporary. There was even talk of this being the equivalent of a furlough.
The ultimate authority of the BOP to return individuals back to prison at any time during the pandemic or immediately after meant that further action from the President or congress would be required. That was furthered when Director Carvajal indicated in his testimony before the Senate Judiciary Committee. The BOP had the tools in place to re-house inmates who were out on CARES Act relief to places like minimum-security prisons.
Further, the Attorney General’s office has continued to representing former President Trump in a defamation lawsuit. There are other matters that Attorney General Garland stated that he did not agree with:
"The job of the Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people," Garland said during testimony before a U.S. Senate appropriations panel.
"Sometimes it means that we have to make a decision about the law that we would never have made and that we strongly disagree with as a matter of policy."
The Justice Department, which Garland leads, has been criticized by some Democrats over decisions to continue to back positions taken by the Republican Trump administration in pending litigation.
Writer E. Jean Carroll in a lawsuit alleges Trump defamed her when he called her a liar over her rape allegations, and said he could not have raped her because she was not his "type."
Under previous Attorney General William Barr, the department defended Trump, arguing it was appropriate to do so because he was a government employee entitled to immunity under federal law from Carroll’s claims and said he spoke about her in his capacity as president.
During the April 15, 2021 Senate Judiciary Meeting, Dick Durbin, Chairman of the Senate Judiciary Committee and Chuck Grassley, ranking member, indicated that they would look to work together for a solution and that inmates returning to prison was not intended.
Next Steps for Individuals Currently in Prison
Obviously the pandemic is far from over. This is true especially given the transmissibility of the delta variant. There is a rise of “breakthrough cases.” If your love one is in person and at risk for covid then I suggest the following:
- Get vaccinated. The BOP has been vaccinating individuals and boasts over 200k vaccines administered. Vaccination is the best chance against all strains and variants of the virus. Further, the BOP keeps records of those who refuse vaccination. The BOP can turn around and use those denials in the government’s compassionate release responses. The United States sentencing commission indicated that the overwhelming majority of compassionate release motions were denied in 2020 making vaccination against the virus even more critical.
- Ask for CARES Act relief. I do not quite know what the BOP’s policy is on granting CARES Act relief to cases at this time. I strongly encourage your loved ones continue to ask for CARES Act relief. This is especially if they have preexisting risk factors.
- Continue to engage in safety measures. The rise of the breakthrough cases is largely anticipated. By most standards the vaccines are between 60-95 percent effective against the delta variant. But those numbers can increase when the user takes special precautions. Specifically the wearing of masks should still be happening in the prison and as much social distancing as possible.