Across the US, thousands of formerly incarcerated prisoners were released from prison (albeit with the understanding that their limited freedom would likely be temporary) as COVID swept through America's prisons, sparking riots and unrest in some penitentiaries.
Now, there's probably no other group in America that is more anxious to see the Delta variant spark another wave of official paranoia. Since they were freed by a provision of the Cares Act, the second stimulus package passed by President Trump and Congress last spring, the DoJ's official interpretation of the law will eventually determine when (or if) they're returned to prison to finish out their sentences.
According to the guidance left in place by the Trump Administration - guidance that still stands - many of the inmates will return to prison when the pandemic is declared officially over.
In a story about the dilemma facing the freed prisoners, Bloomberg cited as an example a former FBI agent serving a 15-year sentence after being convicted on bribery charges.
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.
The former agent, who is currently living at home with his wife and children, was "heartbroken" by the DoJ memo, and the prospect of returning to prison, potentially for years. When he left his last camp at Fairton, a prison counselor told him he was leaving for good. And despite Democrats' reputation for being anti-police and soft on crime, the Biden Administration has so far refused to change the policy, despite lobbying from major prison advocacy groups.
And he's not alone: there are thousands of inmates convicted on non-violent crimes who will likely be returned to prison by the end of the year.
"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 DoJ has been tight-lipped: "This will be an issue only after the pandemic is over," a department spokeswoman said in a statement.
Among many concerns, these former prisoners fear being sent back will trash the good will they have built up with friends and family.
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.”
One potential issue is that many of these freed prisoners have found jobs. And with the labor shortage currently afflicting the American economy, they're incarceration could leave employers in the lurch.
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.
Still, most experts agree the Biden Administration likely won't reverse the guidance. A lucky few may receive clemency from the president or governors since they've already been officially deemed "low risk."
"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."
Many prisoners have found an interesting loophole that they believe might help them stay out longer: they're refusing to get vaccinated for COVID. The former FBI agent is one such prisoner: "I'm willing to sacrifice my own health" to stay out of prison, he said.