Biden faces criticism for not extending home confinement for prisoners

President BidenJoe BidenSunday shows preview: Coronavirus dominates as country struggles with delta variant Did President Biden institute a vaccine mandate for only half the nation's teachers? Democrats lean into vaccine mandates ahead of midterms MORE is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.

Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends. They are frustrated that Biden's remarks this week didn’t address it, warning that it could impact Biden’s legacy on crime.

“It’s so frustrating for me that the answer that we keep getting from the administration is we’ll cross that bridge when we come to it, when the emergency is over. It’s so tone deaf and cruel. People are reconnecting with their families and getting jobs, so they need to know if the government is going to toss them back into prison,” said Holly Harris, the president and executive director of Justice Action Network.

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Rep. Bonnie Watson ColemanBonnie Watson ColemanDemocrats urge Biden to commute sentences of 4K people on home confinement Lawmakers spend more on personal security in wake of insurrection Biden administration criticized over report that it is not extending home confinement for prisoners MORE (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said.

Advocates are considering it a misstep for Biden to not discuss the program as part of the administration’s crime portfolio.

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus. Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence. 

Biden and Attorney General Merrick GarlandMerrick GarlandGrassley calls for federal prosecutor to probe botched FBI Nassar investigation Durham seeking indictment of lawyer with ties to Democrats: reports Woman allegedly abused by Nassar after he was reported to FBI: 'I should not be here' MORE could rescind that policy.

“The major source of disappointment is we haven’t heard anything about if that memorandum will be rescinded,” said Ames Grawert, senior counsel in the Brennan Center’s Justice Program.

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“I think that’s really short sighted. I know that my student loans will resume payment after Sept. 30, and I’ve been able to make plans financially accordingly. Why shouldn’t people who are living with a federal prison sentence be able to plan their lives,” he added.

Biden and Garland spoke about the importance of reintegrating people during their speeches on crime this week, but didn’t mention the inmates who are still serving out their terms in-home. 

There are about 4,500 people who have been in home confinement during the pandemic and now face uncertainty about whether they might have to go back to prison.

The growing disappointment among progressives, who see Biden sticking to a Trump-era memo as a big mistake, could have political implications for the president.

“Under Joe Biden, people in federal prison goes up significantly by several thousand individuals because he refused to allow these people to stay home, that is something that is not palatable with the American people and definitely not his base,” Harris said.

The Biden administration didn’t comment on why the administration hasn’t said anything about rescinding the memo, despite the months of pressure to do so and the focus on crime this week. 

A White House official noted their work to help formerly incarcerated individuals reenter communities, which is one of their five areas of focus on crime, when asked about why the home confinement program wasn’t included in the crime speech.

“The timidity with which the Biden Administration has handled the home confinement issue is everything people dislike about politics. They don’t want someone to stick his thumb in the air to see which way the wind is blowing…they want strong leadership,” Harris said.

The uptick in crime in the U.S. has also complicated the situation.

Homicide rates rose about 25 percent nationally in 2020 and more in some cities, like Atlanta, where the murder rate has risen more than 50 percent year-on-year as of May. 

There is typically a sharper rise in violent incidents in the summer months, a looming threat until the fall.

The reason for the rising crime rate is up for debate, with liberals suggesting it’s in part due to trauma from the COVID-19 pandemic and conservatives attributing it to law enforcement being undermined over the last year. 

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Either way, advocates say the administration should allow certain inmates to remain at home. 

“We absolutely know that there is an uptick in crime but it's not these people that are committing it because they are on supervision and we have that information, we should not impute the guilt of a crime spike on people who are supervised and playing by the rules,” said Grawert.

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation.

“If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison. Harris calls it “bad government” to send those inmates back to prisons.

“At this point, the president just needs to grant them clemency and let them move on. They are out because the Trump Administration felt it was safe enough to let them go home. What more cover does he need?” she said.