Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison
The case for allowing the 4,500 prisoners now at home because of COVID to serve the remainder of their terms at home.
If President Joe Biden doesn’t act soon, he could oversee one of the largest increases in the federal prison population ever. Worse yet, the people who would be sent to prison are individuals who have proven over the last year and a half that they are not a threat to public safety.
With the passage of the CARES Act last year, more than 4,000 individuals, serving time for nonviolent crimes, were allowed to leave prison and instead serve time in home confinement. The goal of this program, according to a memo from then-Attorney General Bill Barr, was the “transfer of inmates to home confinement where appropriate to decrease the risks to their health” as the COVID-19 pandemic raged on. This was particularly pressing for those in vulnerable communities, such as elderly individuals and people with pre-existing medical conditions.
By the public health metric, the home-confinement program was largely a success. While COVID did spread in prisons, leading to 242 inmate deaths and 4 deaths among Bureau of Prison (BOP) personnel, things likely would have been much worse if more individuals were forced to stay in tightly confined prison quarters. Further, those released under the CARES Act were much safer at home. From March of last year to present, there were more than 29,000 people put in home confinement, and only 5 reported COVID-19 deaths for those individuals. Currently, there are 7,457 individuals under Bureau of Prison home confinement, including the approximately 4,500 released under the CARES Act.
There is a case to be made—on grounds of justice, on grounds of cost savings, and on grounds of humaneness—that these nonviolent offenders should not be returned to prison. As Democratic Sens. Dick Durbin and Cory Booker pointed out in a letter to President Biden last week: “These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement. They have reunited with family, obtained jobs, and are abiding by the conditions of their release.”
However, as Barr’s memo spells out, unless the president or Congress takes action, these individuals will be sent back to prison when the “pandemic emergency period” concludes. Last month, Biden’s legal team came to the conclusion that Barr’s memo correctly interpreted the CARES Act. Congress can pass a law extending the release or President Biden can use his pardon power to issue commutations; otherwise, they are going back behind bars.
With vaccination rates stagnating and the Delta variant picking up steam, it isn’t expected that the “pandemic emergency period” will be declared over this year. That buys Congress and Biden additional time to act, but with many other priorities—including infrastructure and Afghanistan—this issue has been pushed to the backburner and is at risk of being lost.
Not only has the home-confinement program been a success in terms of mitigating the spread of COVID-19, it also has not been responsible for increases in crime. Fewer than 1 percent of individuals under home confinement between March 2020 and present have violated the terms of their confinement in some way, and only one person has been identified as having committing a new crime. That’s right: Out of the 29,000 people who spent time on home confinement over the last 18 months, apparently only one committed a new crime—clearly indicating that there is no public-safety rationale for sending these individuals back to prison. Not to mention, reincarceration would also have devastating consequences for the families of these individuals, and the employers who have hired them to help recover from the economic downturn during COVID-19.
Lastly, locking these people back up would harm taxpayers by requiring all of us to foot the bill for a sudden spike in incarceration.
According to the most recent data from the Bureau of Prisons, the average annual cost of incarceration for a single federal inmate is $37,449. That means the cost to reincarcerate the 4,500 people released under the CARES Act would be almost $170 million annually.
An earlier study, conducted five years ago by the Administrative Office of U.S. Courts, had a slightly lower figure for the average cost of individual incarceration ($34,770, not adjusted for inflation), but usefully found that the average cost to place someone under home supervision was $4,392. Using those figures, we can estimate that taxpayers would see annual savings of about $137 million by keeping the 4,500 CARES Act releasees under house arrest instead of sending them back to prison.
The CARES Act home-confinement program has proven a success. The individuals released under the program are contributing to the economy, rebuilding relationships with their families and communities, and following the rules laid out in their release terms. The Biden administration would be foolish to not grant commutations or strongly back a congressional effort to keep them from returning to prison.
