Going to use @AmesCG's post as a proxy for many criminal justice reformers who have posted similar sentiments in the past few weeks. I agree with Ames that, as a policy matter, DOJ should not place thousands of people who have done well on home confinement back in prison.
https://twitter.com/AmesCG/status/1421951436313792520
That said, the crucial question is not about policy; it is about the scope of the BOP’s authority under the CARES Act as a matter of law. And the difference between policy versus law really constrains what President Biden can do here.
I disagree that the President is saddled with an illegitimate OLC opinion even though it was published days before this President took office. I have not seen a single piece of evidence that the OLC opinion on CARES Act home confinement was prepared for any nefarious purpose.
BOP asked for an opinion and OLC wrote a memo that it concluded was the best reading of current law. The OLC is not in the business of coming up with the most defendant-friendly reading of the CARES Act. Its job was to determine the best reading of current law.
Nor is there any proof that the OLC opinion was an effort to force President Biden into a difficult political issue. It is likely that those who ran criminal justice policy at the Trump White House also would have been opposed to returning those on home confinement back to prison
OLC opinions are generally binding on the Executive branch. See bit.ly/3fkLjFe. And it appears as if AG Garland has concluded that the OLC opinion on home confinement is correct as a matter of law.
So it is not as easy as simply rescinding that opinion. President Biden would need to overrule AG Garland and the OLC on a binding opinion about the best reading of the law. I don’t see the President doing that, especially after claiming that he would not politicize the DOJ.
In fact, if President Biden ordered AG Garland to rescind the OLC memo so that the President could avoid a politically risky move (such as commuting 4,000 sentences), it would be no different than some of President Trump’s interactions with the DOJ.
The proper focus should be on moving President Biden and the DOJ to find a solution to the problem consistent with current law. There are plenty of solutions short of asking the President to order the AG to rescind an opinion that he finds is a correct reading of the law.
BOP asked for an opinion and OLC wrote a memo that it concluded was the best reading of current law. The OLC is not in the business of coming up with the most defendant-friendly reading of the CARES Act. Its job was to determine the best reading of current law.
Nor is there any proof that the OLC opinion was an effort to force President Biden into a difficult political issue. It is likely that those who ran criminal justice policy at the Trump White House also would have been opposed to returning those on home confinement back to prison
OLC opinions are generally binding on the Executive branch. See bit.ly/3fkLjFe. And it appears as if AG Garland has concluded that the OLC opinion on home confinement is correct as a matter of law.
So it is not as easy as simply rescinding that opinion. President Biden would need to overrule AG Garland and the OLC on a binding opinion about the best reading of the law. I don’t see the President doing that, especially after claiming that he would not politicize the DOJ.
In fact, if President Biden ordered AG Garland to rescind the OLC memo so that the President could avoid a politically risky move (such as commuting 4,000 sentences), it would be no different than some of President Trump’s interactions with DOJ.
The proper focus should be on moving President Biden and the DOJ to find a solution to the problem consistent with current law. There are plenty of solutions short of asking the President to order the Attorney General to rescind an opinion he finds is a correct reading of the law
I want what @AmesCG and so many others do: that those people on home confinement should not have to go back to prison. But I don't think asking for rescission of the OLC memo will or should happen.
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