DIANA MARQUEZ HAS spent the last 14 months going on long walks, hitting the treadmill, and cooking with her daughter. She’s gotten to know her grandson, a fourth grader, helping him with his math homework. She has also lived with a weight hanging over her head — and an ankle bracelet strapped to her leg.
Marquez is one of roughly 4,400 people who were released from federal prison to home confinement starting in April 2020 as part of a Department of Justice directive aimed at preventing the transmission of Covid-19 in prison. Normally, the federal government allows people convicted of nonviolent crimes to serve out the last 10 percent or the last six months — whichever is less — of their sentences from home. Their time at home requires strict state scrutiny, including ankle bracelets and daily call-ins. The Department of Justice memorandum, issued under the Coronavirus Aid, Relief and Economic Security Act, asked the Bureau of Prisons to relax the eligibility standards for home confinement so that people convicted of nonviolent crimes could leave prison despite having served less of their sentences.
The status of these people has been in limbo since December, when Justice Department officials from the outgoing Trump administration issued a memo stating that people whose sentences would outlast the Covid-19 emergency order would be returned to prison.
Last week, the New York Times reported that Biden administration lawyers had concluded that the Trump administration memo correctly interpreted the law — and that thousands of people in home confinement must be returned to prison after the yet-to-be-determined end of the “pandemic emergency period.” About 2,000 people stand to be impacted, with the rest having now completed enough of their sentences to qualify for early release under the standard guidance.
The Biden Justice Department’s position is especially shocking for people like Marquez who are doing time for marijuana-related offenses. President Joe Biden, after all, campaigned on loosening drug laws and said that people with marijuana records — who comprise a relatively small percentage of the federal prison population — should be freed.