DOJ Reverses, Decides Inmates on Home Confinement Can Remain Free When Pandemic Ends

The Federal Docket

January 10, 2022

In a new memorandum issued late in December, the DOJ has reversed its prior position regarding what happens to federal inmates on home confinement when the pandemic ends. As recently as August of this year, the DOJ’s position was that all inmates on home confinement under the CARES Act would have to go back into custody when the emergency period under the CARES Act expires.

Under the DOJ’s latest guidance, the BOP has discretion to keep inmates on home confinement even after the emergency period ends. Of course, the BOP also retains the discretion to send them back, en masse or individually. The memo only refers to the scope of the BOP’s power. For now, inmates will only be revoked from home confinement “where penologically justified.”

The DOJ’s position was criticized in a letter to the Biden administration by a diverse group of organizations, including Families Against Mandatory Minimums (FAMM), Faith and Freedom Coalition, and Amnesty International. Critics include Senator Tom Cotton, who opposes the change.

Click here to read the DOJ’s latest memo.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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