DOJ Announces Continued Home Confinement Orders for Federal Prisoners

Statement by Attorney General Merrick B. Garland

Attorney General Merrick B. Garland issued the following statement in reference to today’s Office of Legal Counsel opinion on home confinement [by the Bureau of Prisons (BOP)]:

“Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. 

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.”

In re:

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there. Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation. It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement. BOP’s interpretation avoids requiring the agency 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. We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).5

CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel

Earlier Decision .pdf Download

QUOTE: "Since late March 2020 and as of December 6, 2021, BOP (Bureau of Prisons) has placed 35,277 inmates in home confinement through use of all its authorities. - As of that same date, 4,879 prisoners were in extended home confinement under the CARES Act, and at least 2,8301 of this group would have to be returned to a correctional facility under the view expressed in our prior opinion if the emergency were to end immediately."