DOJ Says Inmates Released Due to COVID Can Remain on Home Confinement

DOJ Says Inmates Released Due to COVID Can Remain on Home Confinement merrick garland speaks to press Attorney General Merrick Garland holds a press conference at the Robert F. Kennedy Main Justice Building on Nov. 08, 2021, in Washington, D.C. (Chip Somodevilla/Getty Images)

By Charlie McCarthy | Wednesday, 22 December 2021 10:27 AM

Federal inmates released to limit the spread of the coronavirus can remain at home, Attorney General Merrick Garland said Tuesday.

Garland's order to the Bureau of Prisons reverses a Trump administration decision that would have required many of those who had been released to return to their prison cells.

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a statement. "In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.

"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 Justice Department's Office of Legal Counsel said in January that federal law required many of those inmates to return. An OLC memo issued Tuesday, though, said a better reading of the law is that it "does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends," NBC News reported.

More than 36,000 prisoners were released to home confinement since Congress expanded the program at the start of the pandemic to help reduce the spread of the coronavirus in its jails, The Washington Post reported.

Nearly 8,000 remain on home confinement, according to BOP statistics, with the rest either having been sent back to prison for violating rules of the program, or having finished their sentences.

The Post reported advocates estimate that about 3,000 would be at risk of being returned to prison if the Trump-era order was not lifted.

Federal officials told the Post that all of the released prisoners were deemed "low risk," with many being elderly and in poor health.

In passing the CARES Act, Congress allowed the release last year of some prisoners based on their age, health, and length of remaining sentence. Then-Attorney General William Barr acted to allow the release after five inmates died of COVID-related illnesses in Louisiana and Ohio, NBC News said.

So far, 262 inmates and seven staffers have died from COVID at BOP-managed facilities, along with 11 inmates who were on home confinement, according to the agency.