Thousands of federal inmates released to home confinement during the pandemic are facing an uncertain future as the Biden administration stays quiet on whether to send them back to prison at the end of the emergency period.
Many in home confinement first heard what their post-pandemic fates might be when The New York Times reported last week that the Justice Department intended to keep in place a Trump-era policy requiring inmates to return to prison.
For some, such as 45-year-old Jesse Rodriguez, the move could upend lives they have established over the past year or more outside penitentiary walls.
Rodriguez was released to home confinement in July of last year from a low-security federal prison in Texas, where he was serving time for a drug distribution conspiracy charge. He was under the impression he would be able to serve the remaining seven years of his 14-year sentence in the home confinement program.
Since then, Rodriguez got a job with a heating and air conditioning company and enrolled in college, hoping to earn a degree in occupational safety. The federal Bureau of Prisons (BOP) approved his request to start financing for a new truck.
Now Rodriguez is worried he’ll be sent back to prison, leaving his family with the remaining car payments and losing all the progress he’s made toward a new life with his four children.
“I guess I'm trying to prepare them more than myself,” Rodriguez said. “There's a possibility that they could send me back and they’re actually saying that that's what's going to happen. And they're asking like, 'Why, if you're doing everything you're supposed to do?’ ”
About 4,000 people are still on home confinement under the CARES Act, the pandemic relief bill passed by Congress in March 2020. The bill authorized the BOP to transfer prisoners to home confinement in an effort to reduce the nation’s massive incarcerated population and lessen the health risks at correctional facilities.
In April, BOP Director Michael Carvajal told a House committee that of the total 23,000 people transferred to home confinement during the pandemic, only 21 were sent back to prison over rule violations.
A week before the end of the Trump administration in January, the Justice Department issued a legal memo saying those transferred to home confinement would have to report back to prison whenever the pandemic is declared over.
The Biden administration has been under pressure for months to revoke the memo, with lawmakers and criminal justice reform advocates calling it needlessly cruel and wasteful to return thousands of people to prison.
Some have proposed President Biden use his clemency powers to immediately end the sentences for those who have been living outside prison walls or push for the expanded use of compassionate release for the inmates.
With a new rise in COVID-19 cases across the country, it’s unlikely the pandemic will be declared over any time soon. But as it currently stands, thousands will have to return to prison when it ends, and the Biden administration has not offered any public guidance on whether that could change.
Last week, the Times reported that legal officials in the Biden administration had decided to stick with the Trump administration’s interpretation of the law.
Sen. Dick DurbinDick DurbinManchin keeps Washington guessing on what he wants Democrats hope Biden can flip Manchin and Sinema US gymnasts offer scathing assessment of FBI MORE (D-Ill.), the chairman of the Senate Judiciary Committee, called on Biden to come up with a solution.
“Individuals on CARES Act home confinement have posed no threat, and are already reintegrating into society, reconnecting with their families, and contributing to our economy,” Durbin said in a statement last week.
Durbin urged Biden officials to withdraw the Trump-era legal opinion or "use other legal tools — like compassionate release and clemency — to ensure that no inmate who has successfully transitioned to home confinement is returned to prison.”
Kevin Ring, president of the group Families Against Mandatory Minimums, agrees and wants the administration to make it clear to the inmates as soon as possible that they intend to keep them out of prison.
“We're in touch with hundreds of them, and the notes I get are like, 'I don't want to go back, but I just need them to make a decision. This is killing me.' And that is the most frustrating part of this,” Ring said.
“At some point, you're going to have to communicate your intentions to them," he said. "The thing I want them to do is just to say, ‘With all the authority we have at our disposal, we're going to keep you home.’ Let them know that, take the cloud out from over their heads, and let them get on with their lives.”
The White House did not respond to requests for comment.
“The BOP and the Department continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue,” Kristina Mastropasqua, a DOJ spokeswoman, said in an emailed statement on Friday.
Those currently on home confinement are subject to close supervision and onerous restrictions. Many have to wear ankle monitors to track their movements and must submit requests to travel anywhere other than work.
Last month, 76-year-old Gwen Levi made national headlines after she was sent back to prison for attending a computer class and missing calls from her home confinement supervisors. Earlier this month, a federal judge granted Levi compassionate release from prison, ending her 24-year sentence early.
Paulette Martin, a 74-year-old grandmother who is 16 years into a 30-year sentence for drug distribution, has been living with her son in West Virginia since being granted home confinement in June 2020, but she is required to make the 90-minute trip to Washington, D.C., for her regular drug tests under the program.
Martin, who was co-defendants with Levi in a major federal drug case out of Baltimore, said she can’t drive or get a job because of her health and the long trips are hard on her diabetic son.
The home confinement conditions have been hard on her, Martin says, while adding she's had an opportunity to play with her granddaughter and think about what she would like to do if she were released, like returning to teaching music lessons.
“Nobody's gonna hire me at my age with the ankle bracelet living in West Virginia,” said Martin, who was sentenced to life in prison in 2006 but later received a reduction. “And I could get a job back at a music conservatory where I used to work or somewhere, but who's going to hire somebody who has to run to D.C. two times a month?”
Martin said she was disappointed the Biden administration hasn’t decided to give any relief to those on home confinement.
“He shocked me,” she said of the president. “People had jobs for a year, doing well, they're home with their families, and they want to snatch them away again.”
Although the administration still has not made an announcement about how it will handle those on home confinement, Rodriguez said he’s found himself mentally preparing to return to prison.
Rodriguez, who was sentenced in 2013, has been living with his girlfriend in Odessa, Texas, and said he has to travel 15 miles to nearby Midland to submit to regular drug tests as part of the conditions of his home confinement.
“I got my mindset when I got my sentence that I was going to do this time, that I had to do it,” he said. “And, you know, it didn't take me long to get my mindset back again, and it sucks, because I don't want to think like that. But the reality is I have to, I have to get myself prepared if they do send me back there."
“I lost all that time, all them years with my kids, and we're just barely starting to build a relationship again,” he said. “And now you're going to take that from me again? So yeah, it's harder the second time.”
Updated on July 30.