In many ways, Jesse Ubaldo Rodriguez is just like most Americans struggling to make a living during a global pandemic. He is married, employed at a heating, ventilating and air conditioning company, and when he’s not working, Rodriguez is pursuing a bachelor’s degree from Texas’ Odessa College. But Rodriguez has one additional burden to bear: He lives in constant fear of being sent back to prison.
Rodriguez was convicted of participating in a drug conspiracy nearly a decade ago and sentenced to more than 17 years in prison. In 2015, his sentence was reduced to 14 years because of a reform approved by the U.S. Sentencing Commission. When the COVID-19 pandemic hit early last year and began spreading quickly throughout the federal prison system, the Bureau of Prisons moved thousands of people like Rodriquez (who had already served nearly eight years and was not a public safety threat) home to serve out the rest of their sentences.
This effort saved lives, reunited families, protected public safety and saved taxpayers millions of dollars on unnecessary incarceration.
But a memo issued by the Trump Justice Department’s Office of Legal Counsel in the final days of the administration threatens the new life Rodriguez has built, and could send him and thousands of other prisoners who were successfully transferred to home confinement back to prison. That’s unacceptable.
On Tuesday, President Joe Biden signed an executive order that sent a clear message to the private prison industry: Its time of profiting off of human misery is coming to an end.
Now, he can send an even stronger one by taking swift action to rescind the Trump memo and, rather than looking for ways to send vulnerable people back to prison, direct the Justice Department and Bureau of Prisons to expedite the safe release of more federal prisoners.
Typically, the Bureau of Prisons is authorized to send someone to home confinement only at the very end of his sentence — for a period of a few months. In March, however, a bipartisan majority in Congress voted to significantly expand the bureau’s discretion to grant home confinement in an effort to combat the spread of COVID-19. Since that time, the bureau reports placing more than 21,000 prisoners on home confinement. Right now, more than 7,800 are still there.
Despite these efforts, the pandemic continues to threaten the lives of those who live and work in our federal prisons. Nearly 45,000 federal inmates and 2,000 staff have tested positive for COVID-19. Of those, 209 prisoners and three staff members have been killed by the virus.
The federal system is not unique. The pandemic has devastated justice systems around the country, which is why we worked with a bipartisan COVID-19 task force made up of judges, prosecutors, public defenders, correctional officers and advocates from Washington to Tennessee to share the incredible challenges they are facing, and offer recommendations to federal policymakers. Some states, such as Kentucky, have taken bold action, but too many have done little to mitigate the spread of the disease.
The Biden administration, working with members of both political parties in Congress, has the chance — indeed, the responsibility — to lead. First, it should immediately rescind the Trump administration’s cruel and counterproductive memo that would send thousands of people back to prison. Next, it should direct the Bureau of Prisons to identify even more people who could be safely released early back to society. Priority should be given to those who are most vulnerable to COVID-19.
Former Attorney General William Barr unwisely restricted eligibility for expanded home confinement in a number of ways. For example, he excluded anyone who had even a minor disciplinary infraction in the past 12 months. Factors like that should be considered, but they should not be used to bar otherwise qualified and vulnerable people from being released. We should not let arbitrary rules continue to turn prison sentences into life-in-prison death sentences.
Finally, in order to better supervise and help the people on home confinement, Biden should use his executive clemency authority or direct his Justice Department to seek compassionate release for those people, like Rodriguez, who have demonstrated that they no longer need supervision. People who have been on home confinement for at least six months without incident should have their sentences shortened. Such a move would save taxpayers millions, reward good behavior and improve public safety.
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We believe there will be plenty of opportunities for the new administration to work with members of Congress from both parties to make deep and lasting improvements to the justice system, and we look forward to supporting those efforts.
Right now, however, the administration should move unilaterally and immediately to combat the spread of COVID-19 in prisons and improve the dangerous conditions that prisoners have endured for the past 10 months. Rescinding the last-minute, cruel Trump administration memo on home confinement would be a wise start.
Jeremy Travis is the executive vice president of criminal justice at Arnold Ventures and the former director of the National Institute of Justice.
Kevin Ring is the president of FAMM.
Inimai Chettiar is the federal director of the Justice Action Network and former Justice Program director of the Brennan Center for Justice.
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