Whenever the government declares the pandemic is officially over, thousands of nonviolent, low-level offenders  may be sent back to prison. The Biden administration claims it is legally required to send the offenders back, but there’s nothing stopping it from using mass commutations to stop this from happening.
Approximately 4,000 low-level, nonviolent prisoners who were released to home detention during the pandemic will have to return to prison when the Coronavirus Aid, Relief, and Economic Security (CARES) Act expires and the official state of emergency ends (which seems unlikely to happen in 2021 due to the delta variant). The law  gave the Bureau of Prisons (BOP) authority to allow certain inmates, with more than six months or 10 percent of their sentences remaining, to serve their time on home detention. When the CARES Act expires, however, the BOP’s authority to allow these prisoners to serve out the rest of their sentences on home detention likewise expires.
These offenders represent the absolute minimum in risks to public safety. To qualify for home detention under the CARES Act, prisoners had to meet stringent criteria  and rigorous screening requirements. Anyone convicted of a violent crime, sex offenses, or terrorism-related offenses was automatically disqualified, as was anyone subject to deportation. Anyone who engaged in violent or gang-related activity while incarcerated, or was considered risky using a risk assessment tool , was also disqualified. Further, BOP officials, exercising prudent correctional discretion , declined to release many otherwise eligible prisoners on the basis that their criminal history, conduct in prison, or lack of a viable reentry plan increased their risk of recidivism. As a result, many legislators, prisoners’ rights advocates, and judges actually condemned  the BOP for being overly cautious in refusing to release more prisoners to home detention.
The preliminary data  are quite promising: The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners  allowed on home detention last year, only 151 individuals , less than 1 percent, violated the terms of their confinement. Only one person has committed a new crime. Additionally, research  on technical parole and probation violations shows that removing people from community supervision and reincarcerating them when they have not committed an offense increases the likelihood of criminal recidivism and makes future reentry into society more difficult.
In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price  of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.
Those released into home confinement are currently living in fear—they have no idea what their futures hold. They have reintegrated into society, and many have reconciled with their families, enrolled in school, and found employment. Alina Feas , who was serving an 11-year sentence for a nonviolent offense, is plagued with anxiety every day. Since being placed under home confinement over 15 months ago, she has rejoined her family, has not violated any conditions of her release, and demonstrated she deserves to remain at home. Brian Carr , who has already served five years of a seven-year sentence, decided to strive for success by enrolling in school with the hopes of starting his own business. This, of course, would be impossible if he is forced to return to prison.
Like the BOP, many states  have implemented a variety of early release mechanisms to quell crowding in the face of the pandemic, including granting furloughs, sentence commutations, community supervision, electronic home monitoring, and early parole to nonviolent, low-level offenders whose risk assessments show them to be of little risk to public safety. State data on recidivism rates of those granted early release under these mechanisms are limited at this point, but some preliminary results are encouraging. In Hawaii , initial findings show low rates of recidivism for inmates granted early release—approximately 8 percent have reoffended compared to around 50 percent released on parole pre-pandemic.
It’s important to understand that serving a sentence on home confinement is not a “get out of prison free” card; it is still punishment. Prisoners in home confinement are closely monitored and subject to strict behavioral rules. They are allowed only limited movement during certain hours to participate in rehabilitative activities such as school, drug treatment, job skills training, and religious events. If they break any of these rules, they are sent back to prison. But, at least to the BOP’s knowledge, the vast majority of prisoners on home detention who now face incarceration have not broken any of these rules. They have proven that they can do well under home detention; they should not be punished by the Biden administration.
There’s broad agreement across the political spectrum that our criminal justice system should cost less and achieve better results—commuting these sentences would do exactly that. In the interest of public welfare, public safety, and fiscal responsibility, President Joe Biden should utilize his constitutionally granted powers and commute these sentences rather than send 4,000 nonviolent offenders back to prison.
Image credit: Corona Borealis Studio
- “offenders”: https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf
- “law”: https://www.bop.gov/policy/om/001-2019.pdf
- “criteria”: https://www.fd.org/sites/default/files/news/2021.4.13_-_bop_home_confinement_cares_memo.pdf
- “tool”: https://www.fd.org/sites/default/files/news/2021.4.13_-_bop_home_confinement_cares_memo.pdf
- “discretion”: https://www.justice.gov/olc/file/1355886/download
- “condemned”: https://www.forbes.com/sites/walterpavlo/2021/07/21/federal-inmates-eligible-for-home-confinement-under-cares-act-pled-for-their-release-from-prison/?sh=6bd678634afc
- “data”: https://thehill.com/homenews/administration/552447-doj-faces-big-decision-on-home-confinement
- “prisoners”: https://www.bop.gov/coronavirus/faq.jsp
- “individuals”: https://www.bop.gov/resources/news/pdfs/20210318_hearing_statement.pdf
- “research”: https://www.uscourts.gov/news/2018/10/22/just-facts-post-conviction-supervision-and-recidivism
- “price”: https://www.federalregister.gov/documents/2019/11/19/2019-24942/annual-determination-of-average-cost-of-incarceration-fee-coif
- “ Alina Feas”: https://www.turnto23.com/national/newsy/thousands-in-home-confinement-due-to-covid-19-could-be-headed-back-to-federal-prison
- “ Brian Carr”: https://www.bloomberg.com/news/articles/2021-07-08/prisoners-sent-home-early-by-the-cares-act-dread-the-pandemic-s-end
- “ states”: https://www.law.nyu.edu/centers/adminofcriminallaw/COVID-19
- “ Hawaii”: https://www.staradvertiser.com/2020/05/29/hawaii-news/special-master-defends-early-release-of-inmates-says-recidivism-rate-low/