The cafeteria at the federal prison camp in Fairton, N.J., is rarely the site of much celebration. But one afternoon in spring 2020, the room was buzzing. A provision of the pandemic-relief package passed by Congress had given some of the inmates the chance to leave prison early and serve time under home confinement.
With dozens of prisoners gathered in the cafeteria, a Bureau of Prisons official read aloud a list of inmates who’d qualified for the new program. The names were greeted with high-fives and cheering. Among them was Robert Lustyik, an ex-F.B.I. agent who was about halfway through a 15-year sentence for bribery. “It was a feeling as if I had won the Heisman Trophy,” Lustyik says.
A few weeks later, Lustyik, 59, moved back in with his wife and two children in Sleepy Hollow, N.Y., next door to the cemetery where Washington Irving is buried. Over the past year, he’s started a personal-training business out of his garage and complied with all the rules of home confinement, wearing an ankle bracelet and checking in with prison officials every day.
But as the pandemic approaches an end, the clock is ticking for Lustyik and thousands of other federal prisoners released under the Cares Act. In the waning days of the Trump administration, the Justice Department’s Office of Legal Counsel issued a memo outlining its interpretation of the law’s home-confinement provision: Once the government declares the pandemic has ended, the memo said, many of the inmates will have to return to prison.
The memo left Lustyik “heartbroken,” he says. Typically, the Bureau of Prisons releases inmates to home confinement toward the end of their sentences — and forces them to come back only if they violate the strict terms of early release. Under expanded powers granted by the Cares Act, the Bureau of Prisons made thousands of nonviolent offenders eligible last spring, even if they’d served only half their sentences, as long as they met certain criteria, such as good behavior or high vulnerability to COVID-19. When he left Fairton, Lustyik says, a prison counselor told him he was leaving for good.
Despite the protests of prisoner advocacy groups and Democrat lawmakers, the Biden administration has so far declined to rescind the memo. According to Bureau of Prisons statistics, roughly 4,400 inmates are on home confinement under the Cares Act, with about half close enough to finishing their sentences that they probably won’t have to go back. That leaves around 2,000 inmates who may be forced to return to prison.
“The waiting is horrible,” says Kevin Ring, the president of Families Against Mandatory Minimums, an advocacy group that has fought the Justice Department policy. “Some got home and immediately got a job and started going to school. Others really have focused on reconnecting with their families and, in a lot of cases, helping take care of families.”
Over the past few months, the Justice Department has declined to say definitively what it will do with those prisoners. “This will be an issue only after the pandemic is over,” a department spokeswoman said in a statement.
That stance has left people like Brian Carr wondering how long their freedom will last. Carr, 31, was given a seven-year sentence in late 2015 after he pleaded guilty to drug dealing. His whole life had felt like a series of accumulating setbacks, he says — until he found out last year that he could leave prison. When he called his mother to share the news, his hands were shaking with excitement. “I couldn’t even remember her number by heart, and I know her number by heart,” he says.
Now living in Baltimore, Carr plans to enroll in technical school and eventually start a logistics company that transports cars to dealerships across the country. A return to prison would put all that on hold. He’d also have to figure out a way to break the news to his young children. “That’s going to be hard to explain,” Carr says. “They’re gonna feel like I did something wrong again, and I actually didn’t.”
For some of the prisoners released last year, it’s taken months to acclimate to living at home. Last December, Jackie Broussard welcomed back her daughter, Stephanie White, after she was released under the Cares Act. “She wouldn’t open a door, she wouldn’t open a refrigerator, she wouldn’t ask for anything; she wouldn’t really talk,” Broussard says.
Since then, White, 32, has slowly adjusted to her new life, getting a job operating the forklift at a warehouse near her mother’s home in Fort Worth, Texas. But two and a half years remain on her sentence for a drug conviction. “I’m going to be terrified the day the federal government says the pandemic is over,” Broussard says.
Most experts agree it’s unlikely the Biden administration will reverse the Justice Department memo. A person involved in crafting the opinion defended its conclusions, describing the analysis as a straightforward process of statutory interpretation, carefully vetted by both political appointees and career officials in the Office of Legal Counsel. The Cares Act granted the Bureau of Prisons the authority to offer home confinement to a wider swath of the prison population. But the statute’s language can be read as narrowly tailored, restricting that expanded authority to the “emergency period” of the pandemic.
The government has further options that could spare the inmates a potentially traumatizing return to federal prison. Biden could grant clemency to prisoners who’ve been on home confinement during the pandemic, or Congress could pass legislation making it clear that the inmates can stay home after the crisis ends.
“They’ve been vetted by the Department of Justice and the Bureau of Prisons as being low-risk, and most have already served a significant amount of time in prison,” says Shon Hopwood, a criminal justice expert at Georgetown University. “I don’t think anyone—DOJ included, and even the Bureau of Prisons—thinks that, as a matter of policy, it’s wise to send those people back.”
Regardless of what happens to the prisoners released last year, the Cares Act may offer a model for longer-term solutions to mass incarceration. Before the pandemic, the Bureau of Prisons had the authority to transfer inmates to home confinement for just the final six months of their sentences. But the prisoners who were released under the Cares Act have almost all followed the rules, with only 190 sent back for violations. “Somebody should be looking at broadening the BOP’s authority permanently,” Hopwood says. “Putting people on home confinement — that is still punishment. But it costs a fraction of taxpayer money that incarceration does.”
A long-term solution might come too late for Lustyik, whose sentence is scheduled to run until 2026. He so dreads the prospect of being behind bars again that he decided not to get a Covid vaccine out of fear the Bureau of Prisons is more likely to send back inmates who are fully vaccinated. “I love my freedom, and I would not do anything to put it in jeopardy,” he says. “I’m willing to sacrifice my own health.”
Lustyik has fond memories of the triumphant day last year when he learned he had qualified for home confinement. Recently, though, he had to tell his children that he might be forced to return. That conversation, he says, was more “like being at a wake.”
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