Thousands of federal inmates serving their sentences at home under supervision during the coronavirus pandemic might have to return to prison when the pandemic ends, according to a Justice Department memo issued during the waning days of Donald Trump’s presidency.
The inmates transferred to home confinement — all of whom were deemed “low risk” by BOP officials, and many of whom are elderly and in poor health — left prison last spring as the coronavirus tore through the federal prison system, eventually killing 233 inmates and four staff members, according to agency figures.
White House spokesman Andrew Bates said in an email that President Biden “is committed to reducing incarceration and helping people to reenter society,” but referred questions about the memo to the Justice Department, which declined to comment.
BOP spokeswoman Kristie A. Breshears said the agency “is aware” of the memo but had no other information.
Gwen Levi, 75, is one of the inmates trying to stay out of federal prison. She was sent to home confinement in June after serving 16 years of a 24-year sentence for conspiracy to sell at least one kilogram of heroin. She lives in Baltimore with her 94-year-old mother and volunteers at prisoner advocacy organizations, hoping to get a paying job if one comes along.
Levi bounced around the federal prison system through three presidential administrations, serving time in facilities from Maryland to Texas to Alabama. She was diagnosed with cancer and beat it. She applied for clemency under President Barack Obama but didn’t get it.
Out for nearly a year, she said she fears returning to prison.
“We were vetted before we came out,” Levi said. “They did assessments on us. . . . It wasn’t just like they willy-nilly let us out.”
Still in BOP custody, Levi must wear an ankle monitor and give her work schedule to her case manager every two weeks. She rebuilt her relationships with her sons and grandchildren. And she’s thrilled that, unlike in prison, “the toilet is not in the bedroom.”
“I think I could survive it, but I don’t know if my mother could,” Levi said of a possible return to prison.
Kevin Ring, president of the nonprofit prisoner advocacy organization Families Against Mandatory Minimums, known as FAMM, said Biden’s inaction on reversing the Trump administration’s policy is “not a small thing to get wrong.”
“I thought, maybe naively, that President Biden would not preside over the fastest expansion of the federal prison system in history,” he said. “I’m scared to death. I still have to hope that when the administration sees the people and understands how horrible sending them back would be that they’ll find the courage to fix it.”
In a letter this month, 28 members of Congress — 27 Democrats and Rep. Kelly Armstrong (R-N.D.) — urged Biden to “reverse the Trump administration’s cruel and misguided decision,” saying that a return to prison “would harm families, waste tax dollars and undermine public safety.”
“The vast majority of those people on home confinement today have reunited with their families and are working and contributing to society,” the letter said. “They were not told they would have to return to prison and forcing them to do so would be cruel and devastating.”
During a Senate Judiciary Committee hearing Thursday, BOP Director Michael Carvajal said it’s unlikely any of the 4,500 people in home confinement due to the pandemic will return to prison soon because Biden extended a national coronavirus emergency. However, when the emergency ends, Congress “didn’t specify what to do with them,” he said.
Carvajal said the BOP would “use good judgment and common sense and work within the law” to place those who have succeeded out of prison in appropriate housing, including minimum-security camps, should they return. Only three inmates transferred to home confinement have been arrested on new charges, Carvajal said.
“I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let people out,” he said. “That’s not accurate. We want to let them out within our authorities and within the law.” He added: “We need to be given guidance on what to do with these individuals so we can follow the law.”
Of 152,000 people in Bureau of Prisons custody, about 138,000 are serving time in institutions with prisonlike restrictions. That leaves the federal prison population at its lowest level in two decades.
That could change, according to the memo the Justice Department issued five days before Trump left office.
“The question is what happens to these prisoners once the pandemic emergency ends,” the memo says, referring to the 4,500 people sent to home confinement during the pandemic. “At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement. Other inmates, however, may have a substantial time to go before becoming eligible” and have to go back to prison.
Members of the Trump administration — including Jared Kushner, the former president’s son-in-law and senior adviser — had objected to the idea that people sent to home confinement must later return to prison, according to a former administration official, who spoke on the condition of anonymity because he said he could not speak for the current White House.
The official said Kushner, who had pushed for changes in the criminal justice system, argued that the Biden administration should decide their fate.
Returning the inmates to prison could pose logistical challenges to the BOP and upend the lives of some who thought they said goodbye to prisons under a president who championed criminal justice changes on the campaign trail.
In October, Biden said his support for a 1994 crime bill that spurred a historic increase in the federal prison population was “a mistake.” Days after taking office, he halted new federal contracts for private prisons and pledged to “address systemic problems in our criminal justice system.” He also has proposed legislation that would ban police chokeholds and end qualified immunity for law enforcement.
Inimai Chettiar, federal director for the Justice Action Network, an advocacy group that helped to write the First Step Act, said leaving “this memo on the books is inconsistent with the president's campaign promise of bringing about criminal justice reform.”
Should prisoners return, they would be policed by guards and other BOP employees who are slow to get vaccinated. Carvajal told the Senate Judiciary Committee that, though shots were offered to all of the agency’s employees, 51 percent had been vaccinated. He said other employees might have been vaccinated by their own health-care providers.
Carvajal said he could not compel employees to get shots because the coronavirus vaccines have only been approved by the Food and Drug Administration on an emergency basis.
“It’s a personal choice,” he said. “We respect that. We don’t mandate it.”
Wendy Hechtman had served three years of a 15-year sentence for drug manufacturing when she was transferred to home confinement in December from a federal prison in Connecticut. She lives with roommates in sober housing in New Haven and works remotely for an agency that helps people with criminal histories find employment.
She said she prefers working remotely because something as trivial as a missed bus or a request from a supervisor to work late could lead to a violation that would send her back to prison.
“Every time I go outside is an opportunity for things to go wrong,” she said.
Although her children live in Canada, she can talk with them instead of being limited to calls three times each week. She must wear an ankle monitor, she said, but her children don’t have to worry about what might happen to her behind bars.
“People have an inaccurate conception of home confinement,” she said. “Everybody that you put in prison except for like the most egregious murderers are going to come out someday. If you want people to actually be productive members of society … this is how to do it.”
Matt Zapotosky contributed to this report.