The Senate should codify — not reject— CARES Act’s home confinement policy

Thanks to an effort to force a vote on the matter in the Senate, nearly three thousand individuals who have remained law-abiding under home confinement for nearly three years could be returned to prison to serve the remainder of their sentences behind bars. For both public safety and fiscal responsibility, this is a bad move. 

Home confinement was initially expanded in March of 2020 under the Coronavirus Aid, Relief, and Economic Security (CARES) Act — a whole-of-government response to COVID-19. Initially intended to reduce crowding in prisons to prevent the spread of the coronavirus, its policies were only supposed to hold for the duration of the pandemic. 

In the three years of its implementation, however, expanded home confinement has proven an effective tool for reintegrating low-risk individuals back into society. Due to the widespread successes of the policy, the Biden Administration’s Department of Justice (DOJ) issued a rule less than a month prior to the formal end to the national emergency order for COVID, that the DOJ Director “has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.” To end the policy at the end of the pandemic would be counterproductive to societal flourishing and economic stability. 

It is this rule that a few senators have authored a resolution of disapproval to reject. The Senate is currently only a few signers away from action to discard one of the most effective reintegration programs our federal system has ever witnessed. Rather than fast-tracking this resolution of disapproval, they should seek feasible ways to make this provenly effective policy permanent.

Of the 13,204 individuals sent to home confinement under this policy, only 27 have committed any new crimes. This is a less than than 0.2 percent recidivism rate, which is less than 1/200th of the federal government’s overall self-reported recidivism rate of 43 percent. Put differently, a staggering 99.8 percent of those sent to home confinement under the CARES Act succeeded in establishing and maintaining law-abiding lives outside of federal brick-and-mortar custody. Advocates of public safety and the rule of law should count that as a bonafide win. 

Returning such individuals to prison would risk increasing their likelihood of recidivism, which is bad for public safety in itself. If an individual has demonstrated their capacity to be law-abiding, employed, and stable outside of cell walls, the legal system ought to support their gradual release back into society. Otherwise we risk undoing the progress they’ve made towards rehabilitation and jeopardize the supports they’ve established, making it more difficult for them to reenter and reintegrate in the future. 

Rejecting this policy would not only threaten public safety, but would also burden public resources. Law Enforcement departments nationwide are currently experiencing a recruitment and retention crisis alongside challenges with infrastructure and management in Bureau of Prisons facilities, not to mention increased violent crime rates. Incarcerating low-risk individuals is a blatant misuse of resources.   

Returning these low-risk individuals to brick-and-mortar custody would also come with a yearly price tag of nearly $40,000 per inmate. This would be akin to flushing tax dollars down the drain, as those who would be headed back to prison are currently in society contributing to their families and communities with jobs and societal engagement, not being held on government’s dime. 

Much of the opposition to the DOJ’s rule stems not from concerns that the policy is ineffective, but that the rule sets bad precedent for the expansion of executive agency overreach. Agency overreach is a long-standing issue in the separation of powers debate between Congress and the executive branch. This tension should not prevent Congress from codifying good policy in their own right. If Congress simply strikes down the DOJ’s rule, they betray the purpose of their legislative function to create and codify policies that preserve the health and welfare of the American people. 

Codifying this policy would not perpetuate agency overreach, as it would simply extend effective provisions within the CARES Act — which Congress wrote and passed. Pandemic-related policies across the nation proved hugely informative, and lawmakers have learned a lot from their effects. The results of expanded home confinement are no exception. Some policies have been done away with after being found ineffective at achieving their goals. Others, though, like expanded telehealth access, were found to be massively successful. As such, state legislatures and Congress have sought to codify them and incorporate them into the existing landscape of policy. This is what should happen with the CARES Act home confinement.

To uphold the integrity of the legislative branch, Congress should be embracing the very rule so many members now seek to reject. By instead codifying the DOJ’s rule, Congress would maintain the discretion to adjust or expand the successful policy that it put in place three years ago. This move would benefit public safety, taxpayers, and direct beneficiaries too.

Sarah Anderson is associate director of the Criminal Justice and Civil Liberties program at the R Street Institute and a contributor for Young Voices.