Responding to the Covid-19 pandemic and the great threat it posed to incarcerated people, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Federal Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’s spread. As a result, BOP has placed more than 34,000 people—including many elderly or medically vulnerable—on home confinement since March 2020. Before doing so, BOP evaluated every person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 were still on home confinement as of November 29, 2021. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP Director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.” But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, prisoners on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding. Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society. Although the Biden Administration has said that the President will consider granting clemency to a subset of this group, he has not yet granted any such petitions. The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under the CARES Act and following the rules.

Under the Freedom of Information Act, the National ACLU and ACLU-DC requested records providing information about people BOP moved to home confinement under the CARES Act, and for any DOJ and BOP policies implementing the OLC Memorandum. The government failed to provide the materials by the deadline, so we sued, asking the court to order the Justice Department and the BOP to immediately produce the records we requested.

On December 21, 2021, the Justice Department released a new analysis of the CARES Act, concluding that the Trump administration was wrong, and that the law did allow individuals on home confinement to remain at home until the expiration of their sentences, even if the Covid emergency ends before that. Under the government’s new interpretation of the law, the Bureau of Prisons will now develop rules governing when individuals on home confinement may be returned to custody, and we will have an opportunity to comment on those rules before they become final.

While this new position does not directly affect our FOIA lawsuit, which will continue, it does dramatically change the background picture.

Date filed

November 29, 2021