Prisoners in home confinement due to COVID measures can stay there even after emergency ends, says DOJ

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Thousands of people in the Federal Bureau of Prisons system who have been serving time at home due to the risks posed by COVID-19 may be able to remain under home confinement even after the Biden administration declares the COVID emergency is over, according to the Justice Department.

The DOJ was set to publish a rule Tuesday morning that says it’s up to the Bureau of Prisons (BOP) director to determine on a case-by-case basis whether home-confined federal prisoners can remain at home or whether they’ll need to do the remainder of their time in federal prison. But the rule, signed by Attorney General Merrick Garland, says the BOP has the right to allow them to stay home under current law and says the DOJ agrees with Senate Democrats who say inmates should not be forced en masse to return to federal prison after COVID.

"Inmates and their families have sought assurance that those already in home confinement will not be abruptly returned to secure custody after the end of the covered emergency period," the DOJ said in the rule. "The Department remains sensitive to these concerns and agrees with the expressions of support from some Members of Congress for expanding the use of home confinement based on the needs of individual offenders."

Sens. Dick Durbin, D-Ill., and Cory Booker, D-N.J., said in 2021 that the U.S. should "not force individuals on home confinement to return to prison."

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Attorney General Merrick Garland signed a rule that says the Bureau of Prisons will be allowed to decide whether inmates can continue serving time at home after the COVID emergency ends or whether they must return to a federal prison.  (Samuel Corum / Bloomberg via Getty Images / File)

The rule could affect more than 3,400 inmates who were placed in home confinement after COVID arrived and leaves the BOP director with decisions on how to handle these prisoners once the COVID emergency officially ends.

Those decisions are likely just weeks away – the White House has said President Joe Biden intends to end both the COVID national emergency and related health emergencies on May 11. Former

Former President Donald Trump signed the Coronavirus Aid, Relief and Economic Security Act, or the CARES Act, in March 2020. That law gave the BOP discretion to place some federal inmates in home confinement to limit the spread of COVID and spare vulnerable prisoners from the virus.

The DOJ said the law states clearly that the BOP’s discretion to place prisoners in home confinement ends when the COVID emergency ends. But it said the law is "silent" on whether those placed in home confinement can remain at home if they still have time to serve when the emergency ends.

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Garland's rule agreed with the view of Senate Democrats that inmates should not be forced into the prison system if they have already been serving time at home. (AP Photo / Carolyn Kaster / File)

The DOJ said it will interpret the law in a way that gives the BOP discretion in these cases.

"The Department has concluded that the most reasonable interpretation of the CARES Act permits the Bureau to continue to make individualized determinations about the conditions of confinement for inmates placed in home confinement under the CARES Act, as it does with respect to all prisoners, following the end of the covered emergency period," DOJ said.

The DOJ added that any ambiguity in the law "should be read to provide the Director with discretion" in this matter, instead of requiring the director to find space in a federal prison for these inmates.

The Justice Department noted that more than 52,000 inmates were placed under home confinement during COVID, and that most of them have completed their sentences from home. As of late January, there were 3,434 inmates still serving out a sentence at home.

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The DOJ said it will interpret the law in a way that gives the BOP discretion in these cases. (AP Photo / Andrew Harnik / File)

The rule stressed, however, that prisoners serving sentences at home are still considered to be under the custody of the BOP.

"An inmate placed in home confinement is not considered released from Bureau custody," the DOJ said. "Rather, the inmate continues serving their sentence at home in their community. These individuals must follow a set of rules designed to aid in their management, facilitate their reintegration into society, and support their rehabilitative efforts."

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"For example, they are required to remain in the home during specified hours and are permitted to leave only for work or other preapproved activities, such as occupational training or therapy," the DOJ added.