Talk about a no-win choice, especially with Congress abdicating it. Last year, the Trump administration set up a compassionate release program allowing thousands of federal prisoners to go into home confinement to reduce crowding and prevent further spread of COVID-19. That policy was intended to be temporary, with prisoners returned to their facilities to serve the rest of their terms when the pandemic abated.

Last week, the New York Times reported that the Biden administration has decided that the time will eventually come to re-incarcerate them — no matter how well behaved they have been during their release. In doing so, Joe Biden has tacitly accepted the same policy established by Donald Trump, mainly because the Department of Justice read the statute the same way:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, according to officials.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations. Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The spread of the Delta variant will likely postpone this reckoning for several months, but it won’t eliminate it. When the emergency ends, the Department of Justice and the Biden administration will have to make a decision on whether to keep these prisoners free. Just as with other clemency decisions, the risks run high in either direction:

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime. Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

Even worse, this dilemma will likely present itself next year as the midterm elections heat up. Crime will become a big issue in the 2022 contests, with Republicans already talking about the massive increases in violent crime last year and continuing to this day as a failure of Democratic leadership at the local and state levels. Having a blanket commutation of federal prisoners — even those convicted of non-violent crimes — will look like passiveness and softness even if those prisoners don’t re-offend.

On the other hand, sticking people back in prison after they have demonstrated responsible behavior on compassionate release will likely alienate progressives. The Hill’s coverage today offers plenty of sympathy to those released:

Rodriguez was released to home confinement in July of last year from a low-security federal prison in Texas, where he was serving time for a drug distribution conspiracy charge. He was under the impression he would be able to serve the remaining seven years of his 14-year sentence in the home confinement program.

Since then, Rodriguez got a job with a heating and air conditioning company and enrolled in college, hoping to earn a degree in occupational safety. The federal Bureau of Prisons (BOP) approved his request to start financing for a new truck.

Now Rodriguez is worried he’ll be sent back to prison, leaving his family with the remaining car payments and losing all the progress he’s made toward a new life with his four children.

And thus far, the numbers appear to support an extension:

About 4,000 people are still on home confinement under the CARES Act, the pandemic relief bill passed by Congress in March 2020. The bill authorized the BOP to transfer prisoners to home confinement in an effort to reduce the nation’s massive incarcerated population and lessen the health risks at correctional facilities.

In April, BOP Director Michael Carvajal told a House committee that of the total 23,000 people transferred to home confinement during the pandemic, only 21 were sent back to prison over rule violations.

This brings up an interesting question: why is this up to Biden at all? Congress created the diversion program, so Congress can extend it. In fact, one has to wonder just how much authority Biden has outside of commutation to extend the release once the emergency is declared over. If members of Congress don’t like the DoJ memorandum on the legal strictures regarding this choice, they can pass another bill extending the program or regularizing it.

Of course, that would require responsible legislating as well as risk-sharing. Here’s Joe Biden’s good pal Dick Durbin on the prospects for that kind of maturity:

“Individuals on CARES Act home confinement have posed no threat, and are already reintegrating into society, reconnecting with their families, and contributing to our economy,” Durbin said in a statement last week.

Durbin urged Biden officials to withdraw the Trump-era legal opinion or “use other legal tools — like compassionate release and clemency — to ensure that no inmate who has successfully transitioned to home confinement is returned to prison.”

Oh, if only there was something Dick Durbin could do … Too bad he’s only a member of the same Congress that started this program in the first place. And people wonder how we’ve gotten imperial presidencies.