WASHINGTON — President Biden is considering using his clemency powers to commute the sentences of certain federal drug offenders released to home confinement during the pandemic rather than forcing them to return to prison after the pandemic emergency ends, according to officials familiar with internal deliberations.
The legal and policy discussions about a mass clemency program are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes.
The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress. Others include a broader use of a law that permits the “compassionate release” of sick or elderly inmates, and Congress enacting a law to allow some inmates to stay in home confinement after the pandemic.
Interviews with officials in both the executive branch and Congress, most of whom spoke on the condition of anonymity to discuss sensitive deliberations, suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. But officials in each branch also foresee major challenges and have hoped the other would solve the problem.
The issue traces back to 2020, when Congress included a provision in a Covid-19 relief law that empowered the Bureau of Prisons to release thousands of nonviolent federal inmates to home confinement. The idea was to reduce the risk of spreading the coronavirus in crowded settings. Since then, advocates for the inmates have denounced the prospect of eventually sending them back.
But a Trump-era memo by the Justice Department’s Office of Legal Counsel said that after the pandemic emergency period ends, the bureau’s legal authority to keep such inmates in home confinement would “evaporate” if they were not by then close enough to the end of their sentences to be eligible for such treatment in normal times.
That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest. But under normal circumstances, the law permits the authorities to allow home confinement only for inmates in the final six months or 10 percent of their sentence.
As many as 2,000 sent home during the pandemic may fall outside that limit.
Inmate advocates and some Democratic lawmakers have urged the Biden legal team to rescind the Trump-era memo and assert that the bureau can lawfully keep the prisoners in home confinement even after the pandemic ends.
But The New York Times reported last month that the Biden legal team had concluded that the memo’s interpretation of the law was correct, according to officials briefed on the internal deliberations. Officials have subsequently characterized that scrutiny as a preliminary review and said that a more formal one was underway, but suggested that a reversal of the Trump-era legal interpretation continued to be highly unlikely.
Against that backdrop, in a little-noticed comment at a press briefing this month, the White House press secretary, Jen Psaki, let slip that Mr. Biden was taking a closer look at clemency to help the subgroup who are nonviolent drug offenders.
“He is therefore exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power,” Ms. Psaki said.
In interviews, officials have subsequently confirmed that focus. As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.
It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.
The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.
Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category. She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.
In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison. Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law.
While the compassionate release law is normally used to permit terminally ill inmates to rejoin their families shortly before dying, the statute includes a broad standard for what a judge could decide warrants a sentence reduction — “extraordinary and compelling reasons” — that is not defined and might be applied to the pandemic-era home confinement population.
Kristie Breshears, a spokeswoman for the Bureau of Prisons, said additional options included expanding a pilot program that allows for the early release of older inmates in order to keep some who are over the ago of 60 in home confinement, and placing some inmates in halfway houses for 12 months.
Separately, Senators Richard J. Durbin of Illinois and Charles E. Grassley of Iowa — the top Democrat and Republican on the Senate Judiciary Committee — have also been discussing potential bipartisan legislation that would solve the problem in a simpler way by explicitly authorizing the Justice Department to extend home confinement after the pandemic.
At a hearing in April, Mr. Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there. Taylor Foy, a spokesman for Mr. Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.”
Mr. Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period. In a statement, Mr. Durbin embraced the idea of new legislation, but also said he did not think it would be easy — or necessary.
The prospects for legislation in “an evenly divided Senate are uncertain,” he said, reiterating his view that “the Biden administration has ample executive authority to immediately provide the certainty” to the inmates.
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