LISA Newsletter for May 18, 2026 – Trump Plan to Pardon 250 on America’s 250^th Is Rumored

LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.

Edited by Thomas L Root, MA JD

Vol 12, No 20

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250 Pardons By July 4th?

‘All Them Gays and Mexicans’ is Not Quite Structural Error, But It’s Not Harmless, Either

Supreme Court Numbers Aren’t What You Think

Between The Devil And The Deep Blue Sea

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250 PARDONS BY JULY 4TH?

The Wall Street Journal reported last week that White House officials are considering a plan for President Trump to issue 250 pardons in the next several months in commemoration of the USA’s 250th birthday.

The plan is still reportedly in preliminary discussions, and no one has said that the action would be solely pardon (the forgiveness of a conviction) as opposed to commutation of sentence  (reduction or elimination of imprisonment, fine or restitution without wiping out the underlying conviction).

Trump, himself a convicted felon (although still on appeal in New York state court), has granted clemency more than 2,000 times in his last term and so far this term. The number is only half of the clemencies granted by President Biden, who commuted the sentences of people home on the CARES Act after the incoming Trump Administration signaled that those people would be returned to prison, pardoned people convicted of marijuana possession offenses in the past (none of whom was in prison when the pardon issued), and commuted death sentences of 38 of the 40 people on federal death row (changing the sentences to life in prison without chance of release).

Trump’s clemencies, although fewer in number than Biden’s, have been more controversial. Biden caught flak for pardoning his son and his family. But Trump’s outright pardon on Inauguration Day of 1,500 January 6th rioters, followed by pardons of people connected to his movement or related to wealthy donors to his campaign, have “garnered criticism from both sides of the aisle and encouraged some high-profile candidates to openly campaign to have their convictions or alleged crimes wiped away with a signature,” the Wall Street Journal said.

Trump’s clemency policies, not to mention his appointment of Alice Marie Johnson as White House clemency czar, have resulted in a land rush of clemency petitions. About 5,100 petitions were filed in 2024. The next year, more than three times as many (about 16,150) came in.

The Dept of Justice Office of Pardon Attorney no longer reports the number of petitions currently pending. At the end of March last year, the last data available, over 10,000 petitions were pending, and that was before an additional 13,000 were received.

Meanwhile, anonymously sourced rumors abound. One is that some in the White House worry about announcing any clemency before the November midterm elections. Others predict that Trump could announce 250 “acts of mercy” on June 14, which is both Flag Day and his birthday, or on July 4. One White House official said there are always ongoing discussions about how to carry out Trump’s priorities, but no decision has been made.

St. Thomas School of Law Professor Mark Osler, a federal clemency expert, “has watched with increasing frustration as his clients’ petitions go unanswered. He described the pardon attorney as ‘a zombie office, in the sense that they’re assigning numbers to cases that come in, but it’s not clear that anything’s happening beyond that’,” according to a New Yorker article published a few weeks ago.

“Rather than receiving good or bad news for clients, Osler said, ‘you simply don’t hear. There’s no up, and there’s no down. And so, when they call from prison or they write, I have to tell them it’s pending. But, really, that means it’s being ignored’.”

Osler said that the clemencies that bother him the most are those “that have gone to the people who are fabulously wealthy. These are the people who have been advantaged by so much. With my students, we’ve told the stories of people who are fabulously poor and are being ignored.”

Wall Street Journal, White House Explores 250 Pardons to Mark America’s 250th Birthday (May 13)

Dept of Justice, Office of Pardon Attorney (May 17, 2026)

New Yorker, Donald Trump’s Pardon Economy (Apr 27, 2026)

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‘ALL THEM GAYS AND MEXICANS’ IS NOT QUITE STRUCTURAL ERROR, BUT IT’S NOT HARMLESS, EITHER

Angela Sanchez was on trial for tax fraud. During deliberations, one unenlightened juror told the others, “Can you believe all those people like them gays down in California are coming up here?” Another said, “Yeah. And anyway, the Mexicans, all they want to do is screw us over anyway.”

Angela’s lawyers argued that the comments reflected jury racial bias (not to mention homophobia, which had nothing to do with the trial) and that such bias introduced structural error into the trial.  Structural error is the holy grail of error, a defect so basic that it entitles a defendant to a new trial whether he or she could show the error affected the outcome.

The district court threw the racist juror off the panel before a verdict was reached, and later – after Angela was convicted – denied a new trial on the grounds that she could not show the racist comment affected the jury’s verdict.

Last week, the 9th Circuit reversed.

The Government argued that a simple standard applied by the district court was the correct one, that the verdict should be reversed only if the defendant could show that the dismissed juror’s racial bias affected the verdict. The defense argued that juror bias – even if caught before the jury reached a verdict – was structural error.

The 9th Circuit split the difference. It held that where the bias was caught before a verdict, the error was not structural. However, following the 1954 Supreme Court decision in US v Remmer – which requires that a court apply “a heavy presumption of prejudice” where a jury has been tampered with by an outside party – the 9th ruled that Angela should get a new trial.

“Remmer applies when the “jury taint originates from within the jury itself”—including when the alleged taint arises from jurors’ exposure to the partiality of another juror who was removed before deliberations,” the Circuit ruled, rejecting a government attempt to apply a case of attempted juror bribery from US v Shapiro. “To the extent the Government argues that Remmer should not apply where the source of juror taint is racial bias, rather than corruption, we disagree. In Shapiro, the juror was “tainted” because he was willing to acquit for improper reasons. The racially biased juror here was similarly willing to convict for improper reasons. If a different standard is required, racial bias should be subject to a more stringent prejudice standard than other forms of juror taint, not a lesser one.’

US v Sanchez, Case No 23-2533, 2026 USAppLEXIS 13615 (9th Cir. May 12, 2026)

US  v Remmer, 347 US 227 (1954)

US  v Shapiro, 669 F2d 593 (9th Cir. 1982)

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SUPREME COURT NUMBERS AREN’T WHAT YOU THINK

It has been Supreme Court gospel for decades that between 7,000 and 8,000 petitions for a writ of certiorari – that is, petitions asking the Supremes to review a case – arrive at the Court each year. The Court itself says so. SCOTUSBlog, the definitive Supreme Court fan/practitioner website does, too. Even Georgetown Law Library’s research guide cites the number as 7,000 to 8,000.

The court’s 2023 Code of Conduct estimates the number as “approximately 5,000 to 6,000.”  An exhibit inside the Supreme Court building states that between 5,000 and 7,000 such petitions are submitted, while the National Constitution Center puts the number at around 10,000.

They’re all wrong. The most recent year-end Supreme Court report indicates that, in the 2024-25 term, there were 3,856 petitions for review filed with the court. Of those petitions, more than half (2,527) were filed “in forma pauperis.” The remaining 1,329 were “paid” petitions.

The drop has been gradual. In 2006-07, the number peaked at 8,857, but the numbers have declined steadily since the 2013-14 term. The number dipped below 5,000 by the 2021-22 term and below 4,500 the next term.

The number of paid petitions (which make up almost all of the court’s cert grants) had declined only marginally since the early 2000s, with almost all of the decline in the IFP docket.

SCOTUSBlog reported last week that the decline is because “the IFP and paid dockets function very differently at the court. Although the paid petitions, as noted above, involve a significant investment of time and resources, IFP filings, by contrast, come from indigent litigants – often prisoners challenging their convictions or confinement conditions and representing themselves. As SCOTUSblog contributor Adam Feldman noted in a 2025 analysis, IFP petitions are typically granted “far less often” because many of these petitions raise fact-specific grievances without broader legal significance, do not present an issue on which the lower courts are divided, or revisit issues the justices have repeatedly declined to take up. Starting at the end of the 2022 term, 98.8 pct of IFP petitions were denied, compared to 86.0 pct of paid petitions. In 1946, Chief Justice Harlan Fiske Stone observed that IFP petitions “are mostly chaff.” Justice William Brennan also considered the overwhelming majority of IFP petitions to be “unworthy of full Court review.”

One SCOTUS clerk told SCOTUSBlog that they “flip through [the IFP petitions] pretty fast.” And in a 2010 SCOTUSblog column, Kevin Russell noted that IFP petitions “tend to get buried in a sea of other, mostly meritless, pauper petitions.”

SCOTUSBlog, The Serious Decline in Petitions Before the Supreme Court (May 11, 2026)

Wendy Watson, The US Supreme Court’s Selection of Petitions In Forma Pauperis (2004)

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BETWEEN THE DEVIL AND THE DEEP BLUE SEA

Seafarers of centuries gone by sometimes found themselves in a precarious spot, dangled off the side of the ship down along the waterline to seal up the devil seam. They were between the ‘devil’ in front of them and the deep blue sea at their backs.

The 8th Circuit put prosecutors in a similar precarious position last week, holding that in the wake of Erlanger v US, which held in essence that the 6th Amendment requires that the elements of enhanced statutory penalties had to be determined by juries beyond a reasonable doubt.

Dale Evans was charged with a drug trafficking offense under 21 USC 841(a). The US Attorney filed an “851 notice,” specifying under 21 USC 851 that Dale had three prior serious drug offenses, and thus must face a higher minimum sentence on his current crime.

Dale argued that Erlanger held that a jury had to find that he had the three requisite prior offenses. The problem is that 21 USC 851 requires the judge, not a jury, to find the elements supporting an enhanced sentence. The district judge first decided to impanel a jury, but scrapped that because the statute prohibited a jury. Instead, the trial court sentenced Dale without the enhanced sentence because the 6th Amendment required what the statute prohibited.

The government appealed. Last week, the 8th Circuit upheld Dale’s lighter sentence.

Sec 851 is not facially unconstitutional, because there are circumstances where it could be lawfully applied, such as if the district court submitted, and the jury found, the incarceration-related facts during trial. If a defendant then lodged the same objection, the district court could have relied on the jury’s findings to resolve it, without violating either the 6th Amendment or Sec 851. Because it is not facially unconstitutional, the court may more easily find that it is unconstitutional  as applied to Dale.

The government argued that the court must have “inherent power” to impanel a jury now, “so the government is not deprived… of its ability to prove the charged greater offense,” the Circuit said. “It is mistaken. The Constitution promises the government neither sentencing enhancements nor a forum to try them.”

“The Constitution does not void a statute if it may be applied in some situations without violating the Constitution,” the 8th held. “Sec 851 is “facially constitutional, and it was not automatically displaced by the Sixth Amendment, as the dissent suggests. Rather, it is only unconstitutional as applied to Evans. So the district court was right not to apply the enhancement.”

US v Evans, Case No 25-1181, 2026 USAppLEXIS 13572 (8th Cir. May 12, 2026)

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