When Covid's End Means A Return to Prison

Inmates sent home under the Cares Act find themselves in limbo

- David Yaffe-Bellany

The cafeteria at the federal prison camp in Fairton, N.J., is rarely the site of many celebrations. But one afternoon in the spring of 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 early and serve time under home confinement.

With dozens of prisoners gathered in the cafeteria, a Federal Bureau of Prisons official read aloud a list of inmates who’d qualified for the program. The names were greeted with high-fives and cheering. Among them was Robert Lustyik, an ex-FBI 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 has 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 Coronavirus Aid, Relief, and Economic Security Act, or Cares Act. In the waning days of the Trump administration, the U.S. Department of Justice’s Office of Legal Counsel issued a memo outlining its interpretation of the law’s home-confinement provision: Once the government declares the pandemic has ended, the memo said, many of the inmates will have to return to prison.