Would Biden Grant Clemency to People on CARES Act Home Confinement?

In May 2021, thousands of people who had been sent home from federal prison during the pandemic didn't know whether they would have to go back. Many hoped President Biden would use his clemency power to let them finish their sentences at home, or end those sentences outright. This post explains what people were asking then and why clemency looked like a possible answer.

Update (October 2026): This post was written in May 2021. Since then, two big things happened. In April 2023, the Justice Department issued a rule that lets the Bureau of Prisons (BOP) keep people placed on CARES Act home confinement at home for the rest of their sentence (BOP notice). Then, on December 12, 2024, President Biden signed a commutation for people who had been moved to home confinement under the CARES Act (Justice Department notice). The BOP's power to send new people home under the CARES Act has ended.

Clemency is the President's power to show mercy in a federal case. A commutation shortens a sentence, while a pardon forgives the conviction. Only federal convictions qualify.

The question people faced in 2021

More than 4,500 people had been sent home from federal prison under the CARES Act, the COVID-19 relief law. They had shown they were not a danger to anyone and could rejoin society. Many had found jobs, moved back in with their families and become active members of their communities. Even so, no one knew whether they would have to return to prison when the pandemic ended.

Earlier in 2021, the Justice Department had taken the position that these people must go back once the emergency was over. The BOP could let some stay home, and that seemed likely for people near the end of their sentence. But what about people with years left to serve? Would the BOP keep them confined at home for years, order them back to prison or, dare we suggest, let them go?

Why clemency looked like an answer

The administration could fight over the CARES Act in court. Or President Biden could follow President Obama's lead and use clemency to give people on home confinement who posed no threat to public safety a true second chance.

Reviewing thousands of cases would be hard, but Obama showed it could be done. It would also be a better solution than ordering everyone back to prison.

Signs from the White House

Was another large clemency effort on the way? It would have let Biden make headlines, keep his campaign promises and satisfy many of his voters.

In early May 2021, White House officials signaled that President Biden was ready to use his clemency power. Officials had started sorting through the backlog of requests to find strong candidates. Biden made no promises, but he said he did not plan to wait until late in his term to act.

During the Obama administration, when Biden was Vice President, President Obama granted 1,715 commutations and 212 pardons (Justice Department clemency statistics; see also Newsmax). Many went to people serving long mandatory minimum sentences, which are prison terms a judge cannot go below. Obama granted more commutations than the previous 13 presidents combined, and he holds the record for the most in a single day (330).

Would Biden try to match that record? With slim majorities in Congress, the talk in 2021 was that clemency might be the path he chose for reform.

As that talk grew, our office heard from more people who wanted help preparing clemency petitions. Many hoped to file early and be near the front of the line if an official program was announced. For help asking the President for clemency, see clemency.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.