Merrick Garland Prisoner Release Policy Amounts to Jailbreak

U.S. Attorney General Merrick Garland attends a news conference at the Department of Justice in Washington, D.C., June 25, 2021. (Ken Cedeno/Reuters)

The U.S. Justice Department, headed up by Attorney General Merrick Garland, announced earlier this week that thousands of federal prison inmates who were sent home due to the pandemic would not be required to return to prison to finish their terms — a reversal of an earlier opinion released by the Trump administration’s Department of Legal Counsel dictating that the federal Bureau of Prisons “must recall prisoners in home confinement to correctional facilities” if they did not meet the normal home-arrest criteria. The reversal is effectively a jailbreak, engineered by left-wing activist groups such as the ACLU and the Justice Action Network under the pretenses of public health. Reuters reports:

From March 2020 through Dec. 6 of this year, more than 35,000 inmates have been sent home under all of the BOP’s various legal powers.

As of Dec. 6, the Justice Department said that 4,879 prisoners were in extended home confinement under the CARES Act authority, and more than 2,800 would have been returned to prison once the emergency was lifted if the prior legal opinion had remained in place.

While BOP was given the power to send home low-level inmates under the CARES Act, the law was initially interpreted in narrower terms by then–Attorney General Bill Barr, whose Office of Legal Counsel said the DOJ’s release authority would expire 30 days after the pandemic emergency period had ended. Biden’s DOJ originally maintained that this was the correct interpretation of the law. But after months of pressure from activist groups, Garland arrived at an entirely different interpretation: “Based upon a thorough review of the relevant text, structure, purpose, and legislative history—and a careful consideration of BOP’s analysis of its own authority—we conclude that the better reading of . . . BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends,” a statement from the Office of Legal Counsel reads.

Most of the prisoners who are now being released are likely low-level offenders, but a significant amount of discretion is left up to prison directors in determining who is eligible. Barr’s original memo outlining the BOP’s approach to home-release asked that prisons take “the age and vulnerability” of inmates into account and give “priority” to “inmates residing in low and minimum security facilities.” The memo clarified that “crime of conviction, and an assessment of the danger posed by the inmate to the community” should also play a role in determining release eligibility, but only specified outright that “sex offenses” should “render an inmate ineligible,” maintaining that “other serious offenses should weigh more heavily against consideration for home detention.” 

That ambiguity was quickly weaponized by opportunistic decarceration activists. As Senator Tom Cotton wrote in National Review in September, “between March and June 2020, state leaders released over 200,000 inmates, including 18 percent of felons held in local jails. The federal government referred approximately 4,500 prisoners to house arrest in the communities they once terrorized. California, Illinois, and New York released dozens of convicted murderers and untold numbers of violent felons.”

To be sure, many of those violent felons have been returned to prison. (And some sooner than others: As Cotton notes, within less than four months of their release, some 13 percent of the 1,500 inmates who were released from Rikers Island in New York City had been re-arrested for new crimes). But some have not — including some convicted for “nonviolent” but nonetheless serious offenses such as selling hard drugs. And the fact that any violent criminals were released in the first place should raise serious questions about the judgment of the leniency advocates who are now touting Garland’s jailbreak as a major victory.