President Biden’s ‘Very Strange Decision’ That Could Send Thousands Back In Prison
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Criminal justice reform advocates are concerned that President Biden is adhering to a Trump-era directive that would send thousands of federal inmates who were released due to dangerous pandemic conditions back to prison.
Emily Galvin-Almanza, co-founder and executive director of Partners For Justice, an organization which provides support to public defenders, is among those who have raised concerns about the issue. In a conversation with The Uprising on Monday, Galvin-Almanza described it as a breach of Biden’s campaign promise to “reform” the criminal justice system and reduce incarceration.
“The thing about it that’s driving me a little bonkers is Biden was elected on this promise to cut mass incarceration and he only really has control over the federal system, which is a stark minority of cases,” Galvin-Almanza said. “In the few cases he has control over, this is like the safest group of people he could do that for.”
The memo, produced by the Justice Department’s Office of Legal Counsel on January 15, five days before Biden took office, concluded that the Federal Bureau of Prisons would no longer have authority to keep individuals in extended home confinement beyond a month after the end of the pandemic state of emergency. As of now, that means about 4,000 nonviolent offenders who were allowed to return home due to “significant levels of infection” in prisons would be sent back.
On July 19, the New York Times reported that Biden’s legal team had reviewed the memo and concluded it correctly interpreted the law. The report noted “an ideologically broad range” of “nearly two dozen organizations” had pressed the administration not to return the inmates to custody.
The White House referred questions about the home confinement program to the Department of Justice. A DOJ spokesperson told The Uprising it is “fair” to say the Biden legal team’s conclusion about the memo is not a final interpretation.
While that state of emergency remains in effect — and shows no sign of ending soon due to the Delta variant surge — Galvin-Almanza said the Times report, along with the case of an elderly woman who was sent back to prison last month, ignited worries about the memo.
“The reason there’s a lot of outcry about this right now is because a couple of things happened in close succession. One is that the news came out of the White House saying that they plan to follow this Trump-era DOJ memo that says people would have to be sent back once the pandemic is over,” Galvin-Almanza said, adding, “We’re not worried about imminent return… however, that decision — that very strange decision — to honor the memo written in the last days of the Trump DOJ was followed by this decision to return Gwen Levi and violate her compassionate release.”
Levi, who is 76-years-old and was living in Baltimore, was taken back into custody last month after not answering calls from officials monitoring her home confinement. She was taking a computer class when the calls came through. Earlier this month, a federal judge granted Levi compassionate release writing that she “has done well on home confinement, the current question of the missed call notwithstanding.”
In total, over 28,000 inmates were released to early home confinement due to the pandemic. That group includes many whose sentences expired while they were on home confinement. They are not at risk of being returned to prison. The inmates who were granted home confinement were individually evaluated and were not convicted of violent crimes or sex offenses. Overall, less than one percent of the more than 28,000 people who were released to home confinement have reoffended or violated the terms of their detention.
There are several ways the inmates could be allowed to remain at home after the state of emergency. Congress could make a law expanding the DOJ’s authority to keep them in home confinement. Biden could also use clemency powers to commute their sentences — but, according to the Times, his “team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.”
Some lawmakers also think Biden could rescind the Trump-era memo. On July 20, Sen. Cory Booker (D-N.J.), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, issued a statement responding to the Times report. The pair noted they sent a letter to Biden’s attorney general, Merrick Garland, in April urging him to rescind the DOJ memo.
“I am deeply troubled that the Department of Justice has not rescinded this opinion as we previously requested and urge the Department to reconsider our request. If the Biden Department of Justice feels this is not possible, then other legal means must be considered to ensure that these individuals are not sent back to federal prison,” Booker said in that statement.
A DOJ spokesperson confirmed to The Uprising that there has been no response to the letter from senators.
MEDICAL DRAMA: Rep. Clay Higgins (RA-LA) announced that he and his family have COVID. It’s the second time Higgins and his wife said they contracted the virus. Higgins previously claimed they had COVID in January 2020. In a Facebook post announcing the situation, Higgins pointed the finger at China and described it as “the CCP biological attack weaponized virus.” In May, CNN published a survey that found only around 45 percent of House Republicans have been vaccinated, “compared with at least 92 percent of Senate Republicans and all Senate and House Democrats.” Higgins’ office did not respond to questions from The Uprising about whether he was vaccinated prior to becoming sick again.
XENOPHOBIA, WARRIOR PRINCESS: Rep. Paul Gosar (R-AZ), one of the foremost defenders of the Capitol rioters, is sponsoring legislation that would impose “a 10-year moratorium on immigration.” As of this writing, the bill has zero co-sponsors.
NUMBERS GAME: President Biden’s approval rating has stayed between 51 and 55 percent throughout his first six months in office. While Biden’s approval is steadier than his predecessors, it’s also relatively low and only beats former presidents Trump, Obama, George W. Bush, Clinton, and Ford. CNN’s Harry Enten, who noted Biden enjoys the approval of approximately 90 percent of Democrats, attributed this to “increased polarization.”
HOUSEKEEPING: This week’s news roundups will run through Wednesday. The first live taping of The Uprising Book Club with Anna Merlan was last week. It was a great conversation! I am working on the full transcript and video and subscribers will get that in their inboxes within the next week or so. The rest of you will get a brief recap to see what you missed!
FUN FACT: The late Argentine soccer legend Diego Maradona is widely regarded as one of the greatest attackers in the history of the sport. Maradona, who passed away last year, won two league titles in Italy’s Serie A with Napoli and left the club as its all-time top scorer.
Maradona’s love of partying is almost as legendary as his exploits on the pitch. During his time at Napoli, he allegedly had a regimen that involved going on three day cocaine binges that began after matches on Sundays. On Wednesday mornings, he would begin a “cleanse” heading into the next game.
In a 2014 interview, Maradona described his addiction as a gift to other players.
"I gave my opponents a big advantage due to my illness,” he said. “Do you know the player I could have been if I hadn't taken drugs?"
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