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New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there”

By Douglas Berman

Regular readers are familiar with the legal issues surrounding what I have called the “home confinement cohort,” those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department’s Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that “a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.” Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. 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 section 12003(b)(2) and 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.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation…

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): “Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in “rulemaking” that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the “home confinement cohort” who may need to worry about eventually heading back to federal prison.

Some of many prior related posts: