A Pandemic Policy That Worked
When the COVID-19 pandemic struck in 2020, few federal policies proved as unexpectedly effective as the Federal Bureau of Prisons’ (BOP) expanded use of home confinement under the CARES Act. Faced with a rapidly spreading virus and overcrowded facilities, the BOP, under the authority granted by Congress and the Trump administration, transferred tens of thousands of lower risk inmates from prison to supervised home confinement.
The result was a quiet success story in criminal justice. Thousands of people completed the remainder of their sentences at home, reintegrated into their communities, found work, and supported their families, all while maintaining completing their federal sentences without disciplinary infractions. Independent audits and Justice Department data later confirmed that only a very small percentage of those released under the CARES Act reoffended.
What was originally designed as an emergency public health measure became a test case for compassionate, evidence based corrections policy.
The Trump OLC Position On CARES Act
But success came with uncertainty. The Office of Legal Counsel (OLC) under President Donald Trump issued an opinion suggesting that once the pandemic emergency formally ended, prisoners placed on CARES Act home confinement might be required to return to prison.
This opinion, published in January 2021, stemmed from a strict reading of statutory authority. The OLC concluded that the BOP’s authority to extend home confinement was limited to the “covered emergency period” of the pandemic. Once that period expired, inmates who had not completed their sentences were technically supposed to return to custody.
The opinion caused widespread alarm among inmates, advocates, and even some federal officials. Thousands of people who had successfully reintegrated faced the threat of being sent back to prison, not for violations, but because of an administrative interpretation of statutory language.
The Justice Department received intense criticism from both sides of the political aisle, with former prosecutors and bipartisan reformers warning that revoking home confinement for compliant individuals would be both cruel and counterproductive.
Biden’s OLC Reverses Course
When President Biden took office, his Department of Justice revisited the issue. In December 2021, the Biden OLC formally reversed the prior opinion. The new interpretation concluded that the BOP did, in fact, have the authority to allow inmates to remain on home confinement even after the emergency declaration ended.
It is also worth noting that President Trump himself often emphasized the value of clemency and second chances. His administration supported several notable commutations and pardons, including cases that addressed excessive sentences for nonviolent drug offenses. Through the First Step Act and the use of presidential clemency, the Trump administration sought to modernize sentencing policy and encourage rehabilitation. These measures, like the CARES Act home confinement program, reflected a growing bipartisan recognition that long prison terms are not always the best solution for public safety or justice.
This reversal recognized what many reform advocates already understood: that the success of the CARES Act home confinement program had outlived the pandemic itself. It also restored stability to thousands of households where returning citizens had become caregivers, employees, and community members.
By 2023 and 2024, as the pandemic formally ended, the administration began to explore clemency for certain individuals on home confinement, granting commutations that converted their remaining sentences to time served. These acts of mercy acknowledged both the inmates’ successful reentry and the extraordinary circumstances of their release.
Clemency By Autopen: A New Controversy
Then came a different kind of controversy, one not about mercy, but about mechanics.
In late 2024, President Biden granted a series of commutations to federal inmates who had been serving their sentences on home confinement under the CARES Act. But reports soon surfaced that the President had signed the clemency warrants using an autopen, a device that mechanically reproduces a person’s signature.
Critics, including some in former President Trump’s circle, questioned whether such use of the autopen rendered the clemencies legally valid. The issue tapped into a longstanding political debate: must a President personally put pen to paper for an action, especially one as weighty as granting clemency, to carry constitutional force?
I reached out to Families Against Mandatory Minimums (FAMM) for comment on the issue and Shanna Rifkin, General Counsel FAMM who said, “The debate around the autopen misses the larger point that thousands of people were reunited with their families and communities because of CARES Act clemency. They are living proof of the success of both CARES Act and clemency. To nullify those commutations and return thousands of people to prison, or even threatening to do so, would be a cruel move.”
Trump himself reportedly suggested that if Biden used an autopen for executive orders and pardons, those acts could be challenged as invalid. The question, though, is not new, and legally, it has been settled for decades.
The Autopen And The Constitution
In July 2005, Howard C. Nielson, Jr., then Deputy Assistant Attorney General Office of Legal Counsel issued a paper, “Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It.” This addressed this issue with depth and precision. Nielson concluded that the President may lawfully direct a subordinate to affix his signature to a document, including an enrolled bill, by autopen or other mechanical means.
The key legal reasoning is that “signing” under Article I, Section 7 of the Constitution does not require the President personally to perform the physical act of affixing his name. Rather, once the President has made the decision to approve or authorize the act, he may direct another to carry out the ministerial act of attaching the signature.
The OLC traced this principle back to English common law and early American jurisprudence, emphasizing that a person may “sign a document by directing that his signature be affixed to it by another.”
In essence, what matters is the decision, not the pen stroke. If the President has personally decided to grant clemency, the act of affixing the signature, whether by hand or autopen, is merely the physical implementation of that decision.
Historical Precedent: The Autopen In Action
Presidents from Harry Truman to Barack Obama have used the autopen. President George W. Bush’s legal team sought and received the very 2005 OLC opinion affirming its constitutionality. President Obama later relied on that precedent when he used the autopen to sign a temporary extension of the USA PATRIOT Act while overseas in 2011.
In short, the act of signing by autopen has been repeatedly upheld as valid, provided that the President himself authorizes it. As the OLC put it, “the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”
Applying This To Clemency
The same logic applies to presidential clemency. The Constitution gives the President the power to grant reprieves and pardons for offenses against the United States. Nothing in Article II requires the President to hand sign the paper personally. The legal essence of clemency lies in the decision to forgive or commute, not in the physical autograph that seals it.
If President Biden decided to grant clemency to CARES Act inmates, and directed that his signature be affixed by autopen, the action seems to satisfy constitutional requirements. The autopen, in this context, is no different from a clerk placing the Great Seal of the United States on a document at the President’s command.
Furthermore, even if a future administration wished to challenge those clemencies, courts have long been reluctant to question the validity of presidential acts once the President’s intent and authorization are clear. The doctrine of finality surrounding pardons and commutations makes it virtually impossible for a successor to undo them.
The Broader Meaning Of The CARES Act Clemencies
Beyond the autopen debate lies a deeper story about the evolution of criminal justice policy. The CARES Act home confinement initiative showed that community based reentry can work on a large scale. It defied decades of assumptions that public safety required physical incarceration until the last day of a sentence.
The subsequent commutations under Biden acknowledged that success, rewarding those who upheld their conditions and contributed positively to society. The fact that these commutations might have been “signed” by an autopen does nothing to diminish their legitimacy or their impact. However, many who received such clemency are now concerned that it could be reversed. That just does not appear to be possible.
If anything, the controversy underscores the disconnect between mechanics and meaning in governance. The autopen issue is a distraction from the larger moral question: should our system continue to embrace policies that recognize rehabilitation and reintegration, or retreat to the punishment and isolation of prison?
Mercy, Machines And The Modern Presidency
The convergence of the CARES Act, clemency, and the autopen reveals a uniquely modern constitutional moment. Technology now mediates acts of mercy once sealed by the pen. But the essence remains the same: a President exercising judgment, guided by law and conscience.
The 2005 OLC opinion leaves no doubt that a signature affixed by autopen is a valid act of the President. Biden’s use of it to finalize commutations for home confined inmates stands on solid legal ground.
What matters most is not whether the President’s hand held the pen, but whether his heart and mind held the conviction that justice and mercy required the act.
And on that count, the story of the CARES Act, its success, its preservation, and its vindication through clemency, may prove one of the most quietly transformative legacies of modern American corrections policy.
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