Biden OLC Reverses Trump OLC Opinion On BOP Home Confinement

To stop COVID-19 from spreading, about 4,000 were placed in home confinement by the Bureau of Prisons during the pandemic. What happens after the emergency ends? The Office of Legal Counsel ruled that BOP cannot be placed in home confinement under its authority under the Act on CARES. This ruling was made January 15, 2021. The OLC opinion states that BOP must recall inmates to correctional facilities after the end of the pandemic.

Criminal justice advocates were extremely supportive of this opinion. There was also a persistent lobbying effort by the Biden administration for the OLC to be revoked. These efforts were unsuccessful for some time. The July issue of New York Times Reports that the Biden Administration concluded the Trump OLC was right

According to Biden officials, the memo was correctly understood by the legal team. The law applies to approximately 4,000 nonviolent prisoners. Officials stated that the decision was an evaluation of the law’s best interpretation and not a matter for policy preference.

Nevertheless, lobbying went on. The lobbying continued. Times The revelation that Garland was personally lobbied for by Senator Dick Durbin is confirmed

Criminal justice advocates and some lawmakers — including Senator Richard J. Durbin, Democrat of Illinois Democrat and the chairman of the Judiciary Committee — pressed the new administration to reverse course. But in July, The New York Times reported that Biden administration lawyers had decided that the Trump-era memo had correctly interpreted the law.

According to someone familiar with the situation, Durbin requested Mr. Garland’s personal involvement during a Chicago trip days later. Officials from the administration described the earlier assessment as an initial review, and indicated that a more formal evaluation was being conducted.

Right. It is called a “preliminary examination”.

Shon Hopwood was Georgetown Law professor at that time opinedIt would be risky for Biden to direct Garland to cancel the memo.

Even after Thanksgiving, no changes were made by the administration. President of Families for Mandatory Minimums calledBiden must revoke the memo. Biden’s organization protested in front of the White House

Susan Rice was the focus of criminal justice advocates on November 30. Times reports:

Criminal justice advocates deemed those plans insufficient, and on Nov. 30, White House officials, including Susan E. Rice (the domestic policy advisor), asked for reconsideration of the Trump-era memo.

Garland requested OLC to reconsider its position at some time, probably in the past few weeks.

A Justice Department spokesperson confirmed that the Attorney General had requested the Office of Legal Counsel reconsider its memo.

Recall OLC’s actions. Politico explains:

Below Extreme pressureCriminal justice reform advocates have reported that the Justice Department reversed an Obama-era legal opinion which could have required federal convicts returning to prison after being placed in home confinement. If the Biden administration declared an end to the pandemic, it would require several thousand of them to do so.

According to the new opinion, Attorney General Garland requested OLC reconsider. OLC also relied upon a December 10th BOP memo.

You are now We were asked to reconsider.Our earlier opinion. Throughout this reconsideration the BOP gave us additional briefing that reflected its continued view that the CARES Act was “most reasonable” not to require all prisoner to be released to correctional facilities after an emergency period. Refer to Memorandum of Christopher H. Schroeder Assistant Attorney General Office of Legal Counsel. Re: Views Concerning OLC Opinion “Home Confinement of Federal Prisoners after the COVID-19 emergency” dated January 15, 20,21 at 2. (Dec. 10, 2021). BOP also explained that home-confinement has always been decided on an individual basis. This is consistent with penological goals as well as expectations regarding how home confinement was administered.

BOP memo’s timing suggests that post-Thanksgiving push was successful. The administration came up with new ideas that were justified by presidential resignations after being under pressure. I described the concept in my article Presidental Maladministration).

OLC claims that Trump Administration failed to properly invoke the major questions doctrine.

Our previous opinion stated that Congress could have “fundamentally changed the structure of home confinement in a manner that might allow multi-year home confinement placements,” but it should have made that clearer. Home Confinement, 45 Op. O.L.C. __, at *6 (citing Whitman v. Am Trucking Ass’ns, 531 U.S. 457, 468 (2001), for the proposition that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions”). We are not convinced multi-year placements will result in a fundamental change to home confinement. It could also be contended, however, that Congress would say so if it had intended a unprecedented penologically justified mass recall of prisoners from home confinement.

OLC explained that OLC does not take lightly deviations from precedents. But here, the circumstances were warranted–especially in light of BOP’s new memo.

Our precedents are not to be ignored. We have carefully considered the opinions in previous opinions and have not strayed too far from them. Based upon a thorough review of the relevant text, structure, purpose, and legislative history—BOP’s assessment of its authority should be carefully considered—we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in ex-tended home confinement be returned en masse to correctional facilities when the emergency period ends

Garland is now convinced that the new analysis has made him call Durbin and other people on Tuesday. According to Times.

Mr. Garland called Mr. Durbin on Tuesday and the inmate advocates to notify them of the change.

Holly Harris was the executive director and president of Justice Action Network. This bipartisan organization promotes reform of the criminal justice system. In conversation with Holly Harris, Mr. Garland indicated that she believed the new opinion to be the legal correct one. She called it a morally sound conclusion.

Garland additionally asked BOP for a codification of the policy via a new rule.

Affirming today’s Office of Legal Counsel opinion I directed the Department to engage in a rulemaking exercise to make sure that it lives up to both the letter and spirit of the CARES Act.

OLC explicitly stated that BOP was entitled to its position Chevron deference during litigation.

Even though the statute may be ambiguous, BOP believes that it is a fair reading and should not be challenged in any future legal proceedings.

It will be a messy litigation. People who are already part of society and have been ruled against by the court would need to go to prison if they were to be found guilty. This would include the reliance interests in DACA. Biden’s decision will most likely be saved by the inertia of itself. It is the worst form of Presidential Maladministration.