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The case of a 76-year-old woman sent back to prison after she attended a computer class has brought much-needed attention to the question of what will happen to the thousands of federal prisoners who were placed on home confinement due to the covid-19 pandemic. And just as it made no sense to lock up Gwen Levi because of a simple misunderstanding over how she was being monitored, it makes no sense to return to jail people who have successfully rejoined their communities and pose no risk to public safety.
At issue are about 4,000 nonviolent inmates who were released from federal prisons and allowed to serve their sentences at home under a provision of the Cares Act aimed at slowing the spread of the coronavirus. The prisoners had to meet stringent requirements, including good behavior in prison and a determination that they posed no threat to society. Nearly all lived up to expectations of the program: They reconnected with their families, got jobs, went back to school and believed they would be able to complete their sentences on home confinement as long as they followed the rules. But in the final days of the Trump administration, the Justice Department’s Office of Legal Counsel issued a legal opinion saying that when the pandemic emergency period ended, those on home confinement must return to prison.
There were hopes the ruling would be revoked when President Biden took office, but, as the New York Times reported, the Biden administration has concluded that the memo correctly interpreted the law. The decision was framed as an interpretation of the law, not a matter of policy preference. Once the official state of emergency is lifted — which is not expected this year because of the rise in new infections caused by the coronavirus’s delta variant — the determination means the department will have no choice but to return these people to prison.
“A cruel and unnecessary action” was the apt characterization of Ms. Levi, the Baltimore grandmother sent back to prison for going to a computer class, writing in a Post op-ed. Ms. Levi, who had served 16 years for dealing heroin, was granted compassionate release by a judge after her situation — innocently missing phone calls from her case manager — garnered national attention. “Now that I am free,” Ms. Levi wrote, “I am more committed than ever to trying to prevent others from having their freedom snatched away for little reason.”
The Justice Department and Bureau of Prisons may well have their hands tied, but Mr. Biden has it within his authority to ensure that these people are not needlessly and cruelly reimprisoned. He can use his power of clemency to provide a presumption that all people in home confinement under the Cares Act will have their sentences commuted unless the Bureau of Prisons can prove a current threat of violent harm. As a candidate, Mr. Biden said he recognized the problems and injustices of mass incarceration, and he promised to reduce the federal prison population. Here is a chance for him to keep that promise and to allow people who have started to rebuild their lives to continue.