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IN-DEPTH: Despite being told otherwise, thousands of convicts sent home for COVID-19 will have to return to prison

Around 4,000 nonviolent offenders are at risk of going back; they just don't know when
Posted at 7:00 PM, Oct 12, 2021
and last updated 2022-01-25 11:17:12-05

GRAND RAPIDS, Mich. — As of the publishing of this article, there are officially 74 days until Christmas.

Down in Niles, 54-year-old James Nekvasil is counting every single one with more accuracy and anticipation than a kid a quarter of his age.

“The cool nights, I get all excited because Christmas is coming,” he says, gesturing to the corner of the living room where we sat and talked. “We’re going to get a tree and we’re going to put it here; I want Christmas carols and cookies,” he goes on.

Granted, it’s not completely novel to be excited about the holiday season, but Nekvasil has especially good reason. This year will be the first Christmas in decades that he’ll spend with family, and more importantly, only his second in 18 years not behind the walls of a federal prison.

But his concern — and the crux of his story — is that the Christmas after this one may be spent behind bars, once again.

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The Crime

Nekvasil doesn’t hide behind the things he’s done in the past.

In 1995, he pled guilty to crimes tied to a conspiracy to defraud Tyler Employees Credit Union. He was sentenced to 21 months in prison and ordered to pay back $900,000.

James Nekvasil, Niles, around the time he was sentenced to 25+ years in prison for white collar crimes.

After being released in 1997, he and several others began a separate but similar scheme to falsify loan applications with lavish benefits. According to court records, between them, the group bought 25 luxury cars, a 47-foot yacht, jewelry, and land parcels. All said, the scheme to defraud Indiana-based Sobieski Bank garnered the group around $9.6 million.

After investigations by the IRS and FBI, it all fell apart, with Nekvasil at the center.

“I only got five years for the bank fraud,” said Nekvasil. “I got 20 years for money laundering.”

Because he had prior convictions, and a tacked-on obstruction of justice charge, Nekvasil got just about every federal enhancement one could get for a white-collar crime.

“That first night, you’re lying on that bunk and I thought, 'How am I going to do this? Why am I going to do this? What point is there to live and survive?'” he said.

James Nekvasil, pictured with his father sometime during his prison sentence.

For 18 long years, Nekvasil served his time. Facebook launched. Three presidential terms began and expired. The Cubs broke a decades-long championship drought. He lost both of his parents and grandparents, several uncles, and lost touch with people he’d known for years. His behavior was good, though — he never acted out, and eventually, Nekvasil got himself on work duty at a federal facility in Alabama where he touched a tree for the first time in almost 15 years. Even now, he says he still has to gather himself when he gets into a car to drive, his muscles unsure of what to do on instinct.

“You cry,” he said. “Anybody who said, ‘Oh, I went to prison; I went to the joint and didn’t cry,’ they’re a liar. They all did.”

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The Release

“I said, ‘Come on, man, give me a break here.’”

At first, Nekvasil didn’t believe he was going home. He still had almost ten years left on his sentence and had become so institutionalized, he couldn’t fathom the thought. Instead of relief, he says it was closer to torture — he wasn’t able to tell if his release was the real thing or another gasp at freedom he’d dreamed about but never gotten. So he told his case worker he didn’t believe it when in September of 2020, Nekvasil was told he would be going home.

“He says, ‘Fill out the form.’ All they wanted to know was who’s picking you up, where you were going, what your address was. That’s how it started for us,” said Nekvasil.

In the months prior, prisons, like the ones Nekvasil had served in for 18 years, had been turning into hot spots for the deadly COVID-19 virus. According to the COVID Prison Project, which continues to track outbreaks and deaths in the nation’s federal prison facilities, almost half a million convicts have come down with the virus. Around 2,600 haven’t survived it. Things were bad in federal prisons, and something needed to be done.

In an effort to cut down on crowding in already over-populated facilities, the original CARES Act, signed March 27, 2020, had a provision in it that directed the Bureau of Prisons to identify nonviolent, well-behaved prisoners who might be candidates for home confinement. Those individuals — the law stated — would be ankle tethered, assigned a case worker to check in with, and sent home.

Nekvasil was one of them.

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“I didn’t know what do to,” he said. “I didn’t believe it; I refused to believe it.”

“September 22nd, I’m on a bus; they take me to Montgomery, Alabama; they drop me off at a bus station,” he said. “So I get on a bus for the first time in my life and I rode from Montgomery, Alabama, to Benton Harbor, Michigan. My little brother came in and picked me up.”

It was a new beginning for Nekvasil, one he took advantage of by all counts. Within a few weeks he had a job working seven days a week at a metal-stamping business. He reconnected with his high school sweetheart, Dawn, and the two married and moved in together.

“Our first date was at the grocery store, because I couldn’t go on a date,” said Nekvasil, pointing to his ankle tether. “I never considered getting remarried. But the minute I saw this woman, that thought left.”

James Nekvasil and his wife, Dawn, on their wedding day.
Nekvasil, with his stepson.

Throughout the course of the pandemic, an estimated 24,000 prisoners were released to home confinement in the same manner Nekvasil was. Many, like him, built or returned to families, obtained jobs or enrolled in college.

But almost four months after Nekvasil had already been sent home — he was told for good — a little-talked-about opinion from the Justice Department took Nekvasil’s dream and threatened to turn it into a nightmare.

“Because I have to go back when it ends,” James pauses, tears welling in his eyes, “according to this memo, this opinion.”

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The Memo

In January 2021, during the waning days of the Trump administration, the Justice Department’s Office of Legal Counsel penned a memo that was intended to give clarity on COVID-19 home confinements.

While most of the federal prisoners who were sent home because of the virus had just weeks or months left on their sentences, Nekvasil was part of a group of about 4,000 convicts whose sentences still had several years or even decades left on it.

The memo stated that all prisoners whose sentences lasted beyond the “pandemic emergency period” would have to return to prison. That vague criteria is still the only existing direction on potential returns for those whose sentences might extend beyond deadlines that don’t necessarily exist yet.

“People have to die so I can come home, and now more people have to die so I can stay at home? That’s just not right,” said Nekvasil. “I don’t want to go back, but I don’t want [the pandemic] to continue.”

What eats away at Nekvasil more than anything is that until he has a deadline, or his home confinement becomes permanent, he won’t be able to settle into the life he so badly wants to build for himself and his new family.

“I wouldn’t have married her; I wouldn’t have done this to her,” says Nekvasil, glancing at his wife, Dawn, who sits in a chair just next to him. “I wouldn’t have met her son, who’s a fine young man.”

“They tell me, ‘Oh, look at the variant here, or the variant there,’ and subconsciously I go, ‘Yeah, that’s going to buy me another three months,'” he adds, admitting he’d rather go back to prison and have the pandemic end than vice versa.

But there may be a way Nekvasil and the other roughly 4,000 people in his position can have both.

“Members of Congress, the Bureau of Prisons even, when they sent them home, the wardens and case managers were not telling these people, 'You may have to come back,'” said Kevin Ring, who is president of the group Families Against Mandatory Minimums. “Some people have young children who, when they went home, the kids said, ‘Are you going to have to go back?’ and they said no. So they’ve made commitments based on this assumption that they were going to be able to stay home.”

Ring and his colleagues at FAMM have been in touch with prisoners like Nekvasil, who stand to lose everything once the pandemic becomes nothing. Through the hashtag #KeepThemHome, FAMM and other individuals and groups have been raising awareness on the issue that Ring says can be solved with the power of presidential clemency.

Ring says even though it was the Trump-era justice department that issued the memo that could force the prisoners back behind bars, he notes that the Biden administration has billed itself as a White House willing to embrace prison reform, and this is their chance to start proving it.

“The president has the authority. He can use his clemency powers to commute the sentences of those who are out; he can instruct his justice department to use its authority to keep people home,” said Ring. “And if he doesn’t do it, it’s going to be to his everlasting shame to separate thousands of families from one another for no public safety benefit.”

But so far, the Biden administration hasn’t indicated it will deviate from the memo, and from sending people back to prison once the pandemic ends — whenever that is. The Biden White House did indicate publicly that some offenders who were convicted of drug charges or those who have fewer than four years left on their sentence might be eligible for clemency, but so far it’s only a consideration. The White House did not respond to FOX 17’s requests for comments, nor did the Justice Department.

Ring notes these are all nonviolent prisoners, many already eligible for home confinement under existing U.S. penal codes. Fewer than 3 percent of people who’ve been released to home confinement during the pandemic have re-offended and had their home-confinement status revoked.

When it comes to cost, Ring says that too is a benefit to convicts and taxpayers; it costs around $35,000 a year to house one prisoner at a federal facility in taxpayer money. By contrast, it costs about $13,000 to keep a prisoner on home confinement.

“They’re contributing to society; they’re paying taxes; they’re following the rules. What’s the benefit of sending them back to prison?” said Ring. “If these people can succeed on the outside and they’ve proven it — you’ve given them this test run over a year of being on the outside — why would you waste millions of dollars re-incarcerating them as opposed to putting that money into things that would actually keep us safe?”

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The Solution?

"What if you didn’t have to go back?" I asked Nekvasil. "What if this is the right thing to do for the American penal system?"

“I’m of the mind that unless you lose something, you don’t value that which you have gained,” he answers. “So, alternative sentencing works.”

James and his wife, Dawn, on his birthday.

Nekvasil is a realistic person. He knows life isn’t completely normal. He still has an ankle tether. He still answers questions about his crimes, and about his sentence. He still checks in with a case worker and hasn’t slipped up. One time he and Dawn got to talking on a walk and he strayed a bit too far. His case worker called — no big deal.

But the reason Nekvasil is uneasy — “twisting in the wind,” as Ring put it — is because even the abnormal parts of life now aren’t a given. There’s still the limbo, still the agony of knowing even the happiness he’s found in being home might not last. He’s hopeful the people in power will see it his way.

“Pay attention: we are still human beings,” he says. “I think alternative sentencing can work. But the consequences have to be severe enough for you to value that freedom that you’re getting. I value this stupid little bracelet,” he says, shaking his ankle tether. “I value the rain; I value the trees; I value mowing the grass, because I lost it for so long.”

James takes a long pause.

“And I just want Christmas,” he says.

READ MORE: Zine collects letters from Michigan prisoners recounting their experience of the pandemic

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