Imagine living in home confinement after being moved out of a prison cell due to the pandemic. For more than a year, you have followed the rules. You’ve proven you’re not a threat to your neighbors or community. You have mended relationships, created new ones, and found work and a place to live. Yet in the end, the rug is torn out from under you, demonstrating that rehabilitation is irrelevant because you’re going back to prison. More than 7,400 Americans are facing exactly this because of the White House’s lack of leadership.
In 2020, as the COVID-19 pandemic raged across the country, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act. A provision of the CARES Act authorized moving federal prisoners who were at particular risk of COVID-19 from Federal Bureau of Prisons facilities to home confinement. The goal was to reduce the risk of contagion to other inmates, BOP employees and contractors, and communities adjacent to federal prisons. According to the Justice Department, 28,881 people qualified for home confinement under criteria set forth by then-Attorney General William Barr in a March 26, 2020, memo. Many of those have completed their sentences. As of today, approximately 7,400 remain at home under federal supervision.
Because of rigorous screening, few people who benefited from the CARES Act committed new crimes while outside BOP facilities. Indeed, in recent testimony, the BOP director said that only 21 people violated the terms of their home confinement and just one committed a new crime. That is a 0.07% recidivism rate. By comparison, the U.S. Sentencing Commission has found the recidivism rate for BOP as a whole to be 49.3%.
Clearly, these 7,400 individuals are no longer threats to public safety. Unfortunately, the Department of Justice Office of Legal Counsel interpreted the CARES Act to apply only while the federal pandemic emergency is in effect. 30 days after the emergency declaration is rescinded, the expanded authority for BOP to place people in home confinement ends. All 7,400 will be required to return to prison.
These people have done all we ask to demonstrate rehabilitation. Returning them to a cell will do little to improve public safety. But it will wreak havoc, not just on the offenders themselves, but their families and employers. Most have secured good jobs and housing and reconnected with their loved ones and their communities. Most importantly, they have complied with the law and the terms of their home confinement because those who fail to do so are re-incarcerated.
According to the latest BOP Federal Register notice, the average cost to incarcerate one person is $37,449 per year. At a time when the federal government is hemorrhaging red ink, the idea of needlessly locking up 7,400 offenders at an overall cost of $277,122,600 per year is ridiculous. That quarter of a billion dollars of tax money could be better used each year to fund proven crime reduction programs, violent crime task forces, additional police on the streets, or even a tax cut. But to spend it on incarceration with almost no public safety value is lunacy.
As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.
Over the past six years, the American Conservative Union has worked to bring a more tailored approach to our criminal justice system and fix what Biden broke. One of our biggest wins was former President Donald Trump’s 2018 First Step Act. With strong support from both parties, this landmark legislation made the BOP more accountable for reducing recidivism, which makes us all safer. It also ameliorated some of the harsh sentences under the Biden bills.
Now, we face the unnecessary re-incarceration of thousands of people. This can be fixed, but it requires leadership. The Biden administration was willing to overrule a Trump-era OLC memo dealing with Trump’s tax returns. Yet, as the New York Times reports, Biden refuses to overturn OLC’s CARES Act guidance. As a senator, he helped create the problem of over-incarceration. As a candidate, he promised to rectify it. But as president, he has delivered only words, not deeds.
It’s time for Congress to take action. Any proposal should include Barr’s screening criteria in his March 26, 2020, memorandum. In doing so, we can reduce incarceration, save taxpayers a quarter billion dollars, and ensure that public safety is never compromised.
Matt Schlapp is the chairman of the American Conservative Union, the nation’s original grassroots conservative organization. David Safavian is the general counsel of the American Conservative Union.
