ACLU Sues Biden Administration for Data on Home Confinement Recipients Who May Be Forced Back to Federal Prison After COVID-19

November 30, 2021 9:45 am

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WASHINGTON — The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society.

Overcrowded prisons are prime sites for the spread of COVID-19. To date, more than 41,000 people incarcerated in federal prisons have had confirmed cases of COVID-19, and 267 have died. The spread of COVID-19 in prisons is also hazardous for guards; more than 8,000 federal guards have had confirmed cases of COVID-19, and seven have died.

“The BOP told incarcerated people, their families, the American public, and Congress that if people followed the rules on home confinement, they would be allowed to rebuild their lives outside of prison. Now thousands of those people are in limbo, wondering whether, when, and how they may be needlessly forced back to prison even after proving that they can safely and productively reenter society” said Emma Andersson, senior staff attorney with the ACLU’s Criminal Law Reform Project. “BOP’s lack of transparency and failure to produce records in response to the ACLU’s request has made it impossible for the public to know what the scope of this problem is.”

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread. As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020. BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.” But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding. Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions. The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.

The government failed to provide the materials by the deadline. Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

“Information about BOP’s plans is urgently needed by thousands of people whose lives will be directly affected” said Arthur Spitzer, senior counsel at the ACLU of the District of Columbia. “This is exactly why we have a Freedom of Information Act — so the people can know what their government is up to. The court should order BOP to honor the ACLU’s requests.”

The complaint is here:

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