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NYT: Justice Department says some detainees can stay homebound

WASHINGTON – The Justice Department ruled on Tuesday to allow some federal inmates to remain housebound when the government declares the Covid emergency over, overturning a Trump-era legal opinion that the Bureau of Prisons should recall them to federal institutions.

The unusual change was a rare case when the Department of Attorney General Merrick B. Garland overturned a high-profile Trump-era decision. It was also a victory for defenders of criminal justice.

“Thousands of people confined to their homes have reconnected with their families, found paid employment and followed the rules,” Garland said in a statement.

Congress gave the Bureau of Prisons the power to release federal inmates from house arrest under the Coronavirus Help, Relief and Economic Security Act, passed in March 2020 to address threats posed by the coronavirus pandemic, including the risks to people in overcrowded prisons.

But five days before President Biden took office in January, the Justice Department Office of specified legal counsel that nearly all of these people would have to return to prison once the government declares the pandemic no longer an emergency.

Criminal justice advocates and some lawmakers – including Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Commission – have urged the new administration to back down. But in July, the New York Times reported that lawyers for the Biden administration had ruled that the Trump-era memo correctly interpreted the law.

During a trip to Chicago a few days later, Mr. Durbin pressured Mr. Garland to get personally involved, according to a person familiar with the matter. The following month, administration officials called the previous assessment a preliminary review and said a more formal review was underway.

As an alternative to preventing some housebound inmates from returning to prison, the White House has been working on a leniency program for some non-violent drug offenders and has considered using compassionate release for others.

Criminal justice advocates, deeming the plans inadequate, urged White House officials, including domestic policy adviser Susan E. Rice, to reconsider the Trump-era memo on November 30.

Of the approximately 4,900 inmates placed in home confinement under the CARES law, around 2,800 would return to prison if the coronavirus emergency ended, according to estimates by the Justice Department.

“We will exercise our authority so that those who have made progress in their rehabilitation and have complied with the conditions of home confinement, and who, in the interests of justice, should be given the opportunity to continue their reintegration into society, not be sent back to jail unnecessarily, ”says Garland.

A spokeswoman for the Department of Justice confirmed that the attorney general had asked the Office of Legal Counsel to reconsider her note.

Christopher H. Schroeder, who took over the office at the end of October, signed the replacement note, concluding that this was a “better” interpretation of the law.

Mr Garland called Mr Durbin and inmate advocates on Tuesday to inform them of the overthrow.

Holly Harris, president and executive director of Justice Action Network, a bipartisan criminal justice reform group, welcomed the change. Mr. Garland said in conversation with her that the new opinion was the legally correct conclusion; she called it morally correct.

“People have found jobs and reconnected with their children,” Ms. Harris said. “The relief they must be feeling right now is overwhelming.”

The Trump-era memo had created a state of terror for people like Wendy Hechtman, who has more than eight years to go for producing a chemical analogue of fentanyl.

“There are so many families out there who were really petrified,” said Hechtman, who called her young sons to let them know about the Justice Department’s announcement. “I’m so relieved that I don’t have to hurt them unnecessarily again.”

The new memo gives the Bureau of Prisons “discretionary power to allow prisoners in prolonged house arrest to remain there,” a decision which still leaves the lives of detainees in the hands of the Justice Ministry, Udi Ofer said. director of the justice division of the ACLU.

The Justice Department has refused to overturn some high-profile Trump-era court rulings, continuing to withhold a memo related to how William P. Barr, the former attorney general, interpreted the findings of the special advocate’s report on interference in Russian elections and to defend President Donald J. Trump in a libel complaint filed by writer E. Jean Carroll.

But Mr. Garland’s Justice Department has turned the tide of the Trump administration on law enforcement and criminal justice issues. Mr. Garland has imposed a moratorium on federal executions pending a review of departmental policies and procedures. And he repealed a policy that limited the use of consent decrees to deal with police misconduct.

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