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Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

By Douglas Berman

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a “jailbreak” and an “under-incarceration crisis,” and now a helpful colleague made sure I did not miss this press release from the Senator’s office titled “Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement.”  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton “tough and tougher” bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

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