Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency

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.

This spring, a range of lawmakers and advocates began pressuring the Biden Justice Department to reverse that position, which set off an administration review.

On April 8, for example, more than two dozen members of the House — nearly all were Democrats, but they included one Republican, Kelly Armstrong of North Dakota — sent Mr. Biden a letter urging the White House to reverse the decision.

Their letter portrayed the Justice Department’s position as a Trump-era “policy,” a word that suggested it could be reversed at will, as opposed to an analysis of legal limitations.

A week later, during a Senate Judiciary Committee oversight hearing, Senator Charles E. Grassley, Republican of Iowa, joined several Democrats in criticizing the Justice Department memo. He noted that very few inmates on home confinement over the past year had broken the rules or been arrested in connection with a new crime, while also characterizing the Office of Legal Counsel’s conclusion as a “policy.”

And later that month, two Democratic senators on the Judiciary Committee — Richard J. Durbin of Illinois, the panel’s chairman, and Cory Booker of New Jersey, whose former chief of staff and longtime adviser, Matt Klapper, is now Mr. Garland’s chief of staff — sent Mr. Garland a letter urging him to rescind the Office of Legal Counsel opinion.

Their letter argued that the law could be interpreted a different way. 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.

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