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, reports the New York Times. 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 contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes. Officials in both the executive branch and Congress suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. 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. 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. 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