Brian Foster was released from prison nearly a year ago under the CARES Act, a government policy that prioritized the use of home confinement as an appropriate way to release some incarcerated people as Covid-19 roared through facilities.
When Foster, 54, returned home to Atlanta, the first thing he did was surprise his mother. He moved in with two of his daughters, got a job as an auto mechanic tech, established credit and bought a grill so he can barbecue for his grandchildren, family and friends.
His future, though, is uncertain. Foster is one of about 4,500 people on home confinement facing the possibility of being returned to prison once the pandemic recedes. The Federal Bureau of Prisons website said it “significantly increased its placement of offenders on home confinement” after then-Attorney General William Barr issued a memo in March 2020 directing the bureau to prioritize releasing inmates who were deemed to have especially serious health issues that put them at higher risk for severe illness caused by Covid-19.
But later, in the waning days of the Trump administration, the president issued a memo that said federal offenders with sentences lasting beyond the “pandemic emergency period” would have to return to prison.
“It upsets me to be home doing all the right things and now they talk about I may go back,” said Paulette Martin, 74, who lives with her son and his family in West Virginia.
Dozens of advocacy groups have called upon President Joe Biden to exercise his broad presidential powers and commute the inmates’ sentences. But the administration said its legal team interprets the Trump memo to mean people will be required to return to prison a month after the official state of emergency for the pandemic ends.
In an email to NBC News, a BOP spokesman said the bureau may choose to keep inmates on home confinement post-pandemic if their sentence is nearly over. As for “more difficult cases,” in which inmates have many more years to serve, “the BOP is focused right now on the expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” the spokesman said.
Still, thousands are waiting to learn about their sentences after the pandemic.
“The Biden administration came in and we hoped this would be something they would overturn,” Scott Roberts, senior director of criminal justice campaigns at Color of Change. “It would make common sense, especially since the president has said he wanted to reduce the prison population.”
“For this particular group of people, most are elderly or sick,” Roberts added. “Everyone has some kind of health condition that qualified them for release. All have been vetted, and it was determined they could go home. Seems if there is any group we should let remain at home, it is this group.”
Kevin Ring, president of Families Against Mandatory Minimums, said his organization had been urging the Biden administration to "stop this nightmare" since January.
"Thousands of people were sent home more than a year ago," Ring said. "They have followed the rules, reintegrated with their families, found work and are contributing to society. It makes no sense to send them back to prison."
White House press secretary Jen Psaki was asked about the administration’s stance and the possibility of clemency or some other relief for those released under the CARES Act during an August news conference.
Psaki said Biden is “deeply committed to reducing incarceration, helping people successfully re-enter society,” but she did not have specific information about the fate of the released inmates.
Meanwhile, people like Foster and Martin are trying to push ahead with their lives.
Foster, sentenced for conspiracy to sell cocaine, is more optimistic than many. He's encouraged, he said, by his counselor at the facility overseeing his supervision. Foster went to prison in 2009 and was released to home confinement Sept. 17, nearly a year ago.
“Before prison I had a recording studio and worked with artists. I did film production and owned my own production company,” said Foster, who earned his mechanic certification in prison and now works as an auto mechanic tech at an import auto store.
Foster said before he was imprisoned, his production company used to “feed the homeless on Sundays once a month and have can and coat drives,” and now the people he helped are doing what they can to help him.
His favorite moment thus far has been surprising his mother.
“My brother called her downstairs and said he wanted to show her something,” Foster said. “I surprised her. She cried. I cried. Everybody cried.”
He wears an ankle monitor and his days are restricted by rules, but he said he is happy to be out of prison. An ankle monitor doesn’t stop him from playing with his grandchildren, ages 3, 6 and 7.
“I go to work, come home. I can go shopping once a week for groceries and things like that,” Foster said. “I have to call the halfway house when I’m leaving for work and call when I return — call whenever I make a move.”
“I think with me still having until 2026 on home confinement, I want Biden to give people clemency, then I could take the ankle monitor off,” he said. “It just isn’t right to snatch people and return them to prison after they have established themselves.”
In Ranson, West Virginia, Martin spends her time waiting for a decision from the federal government at her son and daughter-in-law’s house. She seldom goes outside, and she enjoys preparing her Southern dishes for her family.
“I’m very introverted. I spend time writing and talking to friends,” said Martin, who also spends Tuesdays and Thursdays teaching piano to her 3-year-old granddaughter.
"We’re working on 'Jingle Bells' now and 'Old MacDonald,'" Martin said. "She sings, too. The sister’s got soul."
She was released to home confinement June 2, 2020, after serving 16 years of a 30-year sentence on a drug conspiracy charge.
Prior to prison, she owned a boutique and a performance arts school in Washington, D.C., where she taught tap, ballet, modern jazz, piano, organ and voice. In prison, Martin said the women called her “Mama Martin,” and she tutored 300 students to help them receive their GED certificate.
She said she would like to be totally free of the prison system, no longer forced to wear a tracking device or have her son, who has his own health issues, drive her to Washington, D.C., for bimonthly drug tests.
Though the drug test itself takes five minutes, Martin said, at times the lengthy waits can make her visit last for up to five hours.
“They won’t allow my son to come in with me, even though he is sickly,” she said.
Some people on home confinement and their advocates also complain about the lack of universal rules or procedures and the lack of skills by some contractors who provide monitoring and supervision of home confinement.
While Foster said his counselor seldom intrudes on his life, Martin said even her sleep is interrupted by the people overseeing her release.
“I can’t get around and do what I need to do because they call three times a night, about every two hours, and sometimes whenever they want,” Martin said. “Every time I’m asleep, I get a call — random checkup. It’s nerve-wracking. I’m stressed. I got more rest in prison.”
“The ankle bracelet is on me 24/7. I don’t want people looking at me (wearing it),” Martin said. “I don’t really have no freedom. I can’t just go down and walk on the block and exercise. I can’t even get up and go to church. I had a doctor’s appointment and they asked how long would I be. I didn’t know how long it would take the doctor. How could I know? If they call and you are not here, they will send the police.”
“I’m waiting to see if I have to go back,” she said. “That disturbs me, waking up every day not knowing whether I’m going back or not.”
Advocates like Amy Povah, president of CAN-DO, an organization that advocates for clemency for all nonviolent drug offenders, said mistakes by a system unprepared to handle suddenly monitoring thousands more people have already disrupted the lives of those on home confinement.
“We have reviewed numerous cases of CARES Act recipients who have been accused of bogus violations of their home confinement conditions,” Povah said. “We are currently assisting several individuals on home confinement with compassionate releases in hopes the courts will step in and reduce their sentences to time served. It’s the only just thing to do at this stage.”
Povah said in one case a GPS monitor pinged all over a neighborhood, indicating the person on home confinement was visiting people, even pinging that the person was at an abandoned, boarded-up home.
“The GPS is not always accurate,” she said.
One incident that received national attention was the case of Gwen Levi, who in June was placed in jail in Washington, D.C., after she didn’t answer a phone call during a computer class, which she said she had received approval to attend. Levi, 76, was granted compassionate release by a judge in July, freeing her from BOP oversight and home confinement.
Longtime national justice reform advocate Vivian D. Nixon said her cousin Evan Francis was taken back into custody in May and remains in a county jail in Georgia, after being told his GPS monitor showed he traveled 120 miles in the middle of the night. Nixon said Francis had been on home confinement since December and that 41 days were added to Francis’ sentence because of the alleged violation.
“The violation involves driving 60 miles and back, a total of 120 miles in 32 minutes. It’s physically impossible,” said Nixon, who is convinced there was a glitch in the monitor.
She said Francis’ appeal was rejected by the BOP because he used a photocopy of the appeal form instead of the original triplicate form, which his halfway house did not have.
Nixon said the appeal process has been “a circus. All of these small mom-and-pop halfway houses in rural America don’t have capacity to monitor people.”
Kevin Ring, of Families Against Mandatory Minimums, and Povah have urged the BOP to “act more carefully in reviewing alleged disciplinary infractions by those serving on home confinement pursuant to the CARES Act.”
Scott Roberts, of Color of Change, said the way in which these releases to home confinement and their monitoring has been handled is “a wake-up call for us.”
“It shows how cruel this whole system is,” Roberts said.
CORRECTION (Sept. 12, 2021, 7 p.m. ET): A previous version of this article misstated when Brian Foster’s home confinement is scheduled to end. It is 2026, not 2024.