WASHINGTON — Citing the case of a Baltimore grandmother who was briefly returned to prison for a technical violation, five Maryland lawmakers are urging the Biden administration to reverse a Justice Department opinion that could reincarcerate as many as 4,500 people now serving sentences at home once the COVID pandemic eases.
Under a provision of the coronavirus relief package that became law last year, the Federal Bureau of Prisons was given the authority to transfer to home confinement inmates who were near the end of their sentences and posed no risk to their communities — a move aimed at reducing the spread of COVID inside overcrowded prisons.
But a Justice Department’s Office of Legal Counsel (OLC) opinion, issued five days before President Donald Trump left office, concluded that those released to home confinement would have to go back to prison once the COVID emergency is declared over.
“…Recalling these individuals to prison does not serve the public interest,” the Maryland lawmakers wrote to Attorney General Merrick Garland on Sept. 17. They warned of “the harmful consequences of permitting the current opinion to stand and the importance of finding compassionate solutions for this group of Americans.”
The letter was signed by Democratic Sens. Ben Cardin and Chris Van Hollen and Reps. Kweisi Mfume, D-Baltimore, Dutch Ruppersberger, D-Timonium, and John Sarbanes, D-Towson.
Donald Murphy, a public affairs spokesperson for the Federal Bureau of Prisons, declined to comment to Capital News Service about whether the OLC opinion is being actively reviewed by the Biden administration.
In their letter, the lawmakers referred to the circumstances of Gwen Levi, a 76-year-old Baltimorean grandmother, who had served 16 years of her 24-and-a-half-year sentence on a non-violent drug conspiracy conviction. As the pandemic swept through prisons, Levi was released in June 2020 to live in home confinement because of her age, lower risk of reoffending and higher susceptibility to contracting the coronavirus.
She was among about 24,000 prisoners released to home confinement after a rigorous vetting process, but Levi briefly returned to federal prison on June 12, after technically violating the terms of her release by not answering a phone call during a pre-scheduled computer word-processing class in the Baltimore Inner Harbor.
Levi was released on July 6 under an order by Judge Deborah Chasanow of the U.S. District Court for the District of Maryland. Yet the Maryland lawmakers wrote to Garland that they “were surprised by the department’s opposition” to giving Levi compassionate release.
“She played by the rules. She loved her country. She cherishes her faith and because she was not available for a phone call during her class, we find there was an effort by federal authorities to send her back to prison,” Mfume told Capital News Service. “Without any kind of flexibility, we’re going to find situations like this over and over again.”
Mfume added: “Her case is instructive and we talk about it all the time because we believe if we look at that as a barometer, that the Federal Bureau of Prisons will reconstruct the way they carry out their duties with some sort of empathy for individuals, while at the same time making sure the real persons that need to be incarcerated are incarcerated.”
The congressman, who represents Baltimore, Baltimore City and Howard Counties, recalled Levi walking into his office shortly after Chasanow’s order released her. She thanked him and the rest of the delegation for helping her.
“She just in a very humble way, said that she’s so glad that somebody, meaning myself and others here in Maryland, paid attention to her case, because she’d still be where she is,” Mfume said.
Kara Gotsch, deputy director at the Sentencing Project, a Washington-based nonprofit focused on injustices in the criminal justice system, said the Justice Department opinion is “devastating” for those who are staying at home and now face the possibility of being sent back to federal prison.
“It is really a shame that the White House and DOJ appear to be standing by that OLC memo issued by the Trump administration,” Gotsch told CNS.
She’s been in communication with the Biden administration, asking for grants of clemency, an executive privilege for commuting prison time, for everybody who’s been serving sentences in home confinement, but the White House is considering granting it to only some, according to Gotsch.
“I think that’s a step in the right direction, but there’s no reason why anyone who has proven themselves to be successful on the home confinement program should be sent back,” she added.
Meanwhile, Rep. David Trone of Gaithersburg has joined with 27 other House Democrats in calling on President Joe Biden to “immediately commute the sentences” of the 4,000 people now in home confinement because of the COVID emergency but facing return to prison after the emergency is ended.
The lawmakers also urged the creation of an independent board to review a massive backlog of more than 15,000 petitions seeking clemency.
“Nearly all of those released have thrived since returning home by reconnecting with their families and communities, and by engaging actively in civic life,” Trone and his colleagues wrote to the president on Sept. 17. “Mr. President, with a stroke of your pen you could remove the threat of reincarceration that looms over thousands of people who have already demonstrated their commitment to being productive members of their communities.”
Tiheba Bain, director of coalitions at the National Council for Incarcerated and Formerly Incarcerated Women and Girls, believes Biden has a chance to show his political support as an advocate for criminal justice reform, a promise he made to Americans during last year’s presidential campaign.
“We need to come back around and revisit it,” Bain told CNS. “We believe that Biden as a progressive president, in some sense, is the right platform to actually bring more awareness to it.”
Maryland ranks fifth overall for the highest number of compassionate release petitions filed in any federal district court, according to the U.S. Sentencing Commission’s latest 2020-2021 report. A little more than two-thirds of all motions for compassionate release submitted before the U.S. District Court of Maryland were denied; only 193 petitions were granted out of 564 requests.
Gotsch said the home confinement policy is “one of the bright spots” in the federal government’s response to protecting prison inmates from the COVID pandemic.
“This has been a successful experiment that we should learn from and expand instead of retract,” Gotsch said. “We shouldn’t go back to the way things were. We should learn from this success and build upon it so that we can have a more compassionate, more fair and a safer criminal justice system.”