ROUND ROCK, Texas (KXAN) — Kendrick Fulton is no longer behind bars but still feels trapped by an invisible cage he can’t escape.

“Choices have consequences,” said Fulton, 48, who was released temporarily under the CARES Act to help slow the spread of COVID-19 in our nation’s prisons. “I sat in prison many days wishing I was double-jointed so I could kick myself for making those bad choices.”

Fulton was convicted of a non-violent drug charge for selling cocaine in 2003. He was sentenced to 33 years in prison. With good behavior, he is scheduled to be released on Jan. 27, 2032. Under a 2010 drug sentencing law, his punishment would have been significantly less if he had been convicted today.

“I can’t cry over spilled milk,” he said. “For one, I put myself in that position.”

Unless you saw his ankle monitor, you might never know this Round Rock truck driver is caught up in the criminal justice system, let alone that he is currently a federal prisoner. KXAN first met Fulton back in September. At the time, he said it was still “surreal” to not be “looking at a chain-link fence” every day.

Since then, the Department of Justice reversed course on an earlier ruling that prisoners released under the CARES Act must return once the pandemic ends. In a December memo, the DOJ now says these low-level, non-violent federal prisoners do not have to return and the Federal Bureau of Prisons has “discretion to permit prisoners in extended home confinement to remain there.”

“Oh man,” Fulton said, “I’m excited.”

KXAN investigative reporter Matt Grant sits down to talk with Kendrick Fulton in Round Rock. (KXAN Photo/Richard Bowes)

While thrilled to be out, Fulton says he is far from free. He is restricted to a 100 mile radius, which limits the truck driving work he can do. Every grocery store trip or meal out must also be cleared a week in advance.

“There’s no such thing as forgetting,” he said. “If you don’t have it on the list, you can’t go.”

Free with a ‘big asterisk’

“So, you’re free,” said KXAN investigative reporter Matt Grant, “but maybe with a little asterisk next to that?”

“With a big asterisk,” Fulton said, sitting at the same public park bench when KXAN met him months earlier.

The DOJ’s revised memo impacts 5,474 inmates currently on home confinement. Since the start of the pandemic in March 2020, a total of 37,556 prisoners have been released to home confinement, according to the BOP’s website. Outgoing BOP Director Michael Carvajal told the House Committee on the Judiciary last week that more than 9,000 of those prisoners were specifically related to the CARES Act. The other 28,000 inmates “were transferred to community custody through normal pre-releases processes beyond the CARES Act,” a BOP spokesperson clarified.

Asked what he would say to people who believe he should not be out in public but instead sitting in prison serving his sentence, Fulton said he has served long enough.

“You know,” he said, “for the people that say, ‘You do the crime, you do the time,’ I’ve done 17 years.”

Confusion and uncertainty

Adding to the confusion and uncertainty, the Federal Bureau of Prisons put out a memo in December saying it plans to develop a plan to evaluate “which offenders should be returned to secure custody.” Sentence length, the memo warns, will be a “significant factor.”

“It is likely that inmates that have longer terms remaining would be returned to secure custody,” the memo states, “while those with shorter terms left who are doing well in their current placement would be allowed to remain there.”

Asked to clarify, the BOP says once the pandemic is over it will make “individualized determinations.”

“Under the Office of Legal Counsel’s (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic,” said a spokesperson. “Once the pandemic is declared to be over, the BOP will make individualized determinations.”

Lawmakers are also confused. Two weeks ago, several members of Congress including Rep. Sheila Jackson Lee (D-Houston) wrote a letter to Carvajal asking for clarification on. More than two dozen members of Congress want to know if the BOP will allow inmates, currently serving their sentences on home confinement, to remain in their communities after the pandemic is over.

Testifying at last week’s Congressional hearing, Carvajal said he will respond to the letter by Feb. 7. He said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”

“I’m aware of the [new] OLC opinion and we’re working with the Department [of Justice],” Carvajal said. “We have not nailed down the how. When we do that, we will make it as transparent as possible. We certainly take the information and guidance of the attorney general. We’ll continue to follow the laws.”

Because the BOP has “discretion” to return inmates, and noted remaining sentence length will be a “significant factor,” some advocacy groups are worried. One organization, Families Against Mandatory Minimums, a national non-profit that advocates for criminal justice reform, is lobbying for clemency.

“I’m afraid for people like Kendrick it’s still just a half victory,” said FAMM President Kevin Ring, who is concerned that Fulton — who has a decade left on his sentence — could be sent back to prison as part of a case-by-case review.

Kendrick Fulton poses for a photo in Round Rock, where he is currently living. (KXAN Photo/Matt Grant)

“If you are worried about public safety, then the last thing you want to do is waste millions of dollars incarcerating people who don’t need to be there,” said Ring. “These people have proven, by their actions over the last two years, that they don’t need to be in prison. So, let’s use that money on things that could actually keep us safe.”

Meanwhile, Fulton has been out in society for more than a year. He obtained his commercial driver’s license and works a full time driving a truck and delivering sodas. He has started a blog and has reintegrated himself back into society and reconnected with family.

“Without a doubt, I could speak for everybody that we’re all glad we don’t have to go back,” he said, optimistic that he won’t have to return to serve the remainder of his sentence behind bars.

Safety concerns

Despite reassurances, heavy vetting, and the release of only low-level non-violent offenders, Republicans like Andy Biggs (R-Ariz.) have expressed concern about prisoner releases, citing public safety.

“Democrats on this committee want to open the jails and defund the police,” Biggs said. “They’re turning a public health crisis into a public safety crisis as well.”

As an example, Biggs highlighted the case of a Minnesota man who was let out on “compassionate release” due to being at high risk for COVID-19. He was charged with murdering his wife a couple months later. Biggs also cited the case of an Oregon man, who was also out on compassionate release, accused of robbing a bank.

Compassionate releases are separate from the CARES Act, Carvajal said, adding all decisions are ultimately made by a judge, not the BOP.

“They’ve tried to use COVID-19 as a reason to let more convicted criminals back onto our streets,” Biggs said.

Crimes like the ones Biggs cited are rare exceptions and represent a tiny fraction — less than one percent — of the total number of inmates released, according to the BOP.

During his testimony, Carvajal said during the pandemic the BOP released more than 37,000 prisoners to home confinement, 9,000 of which were specific to the CARES ACT. Carvajal said a total of 320 prisoners committed violations and were taken back into custody. Eight were for “new crimes.” One was “serious,” he said.

The most common violations, at 160 total, were for alcohol and drug abuse, Carvajal said. He added “some” were “escapes,” or people not being where they were supposed to be.

Kendrick Fulton and his mother, Lois Carey, in 2004. (Courtesy Kendrick Fulton)

As of December, there are 18 inmates on home confinement, including Fulton, with a decade or more left to go on their sentence. There are 359 inmates with release dates between five and 10 years. Many with shorter sentences are already being released from home confinement under the First Step Act’s earned time credit, Ring said.

Last October, US Attorney General Merrick Garland also told Congress very few prisoners released under the CARES Act have reoffended. Garland said the program has been a success, adding President Biden is “reviewing the extent of his clemency authority” for these cases.

The White House and DOJ did not respond to KXAN’s requests for comment.

“It would be a terribly policy to return these people to prison,” Garland said, “after they have shown that they are able to live in home confinement without violations.”

Fulton agrees it would be “terrible” and had a plea for the president.

“If you’re watching this interview, please consider granting clemency,” Fulton said. “Not for me. Just give it to someone. I’m not that selfish. If someone gets it, I’ll be happy.”