Notifying Next-of-Kin Bill Introduced – Update for April 25, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BILL INTRODUCED REQUIRING BOP TO TELL YOUR FAMILY PROMPTLY THAT YOU’RE DEAD

badnews250425Senators Jon Ossoff (D–GA) and John Kennedy (R–LA) have reintroduced legislation that would require the Dept of Justice to issue guidance to the Federal Bureau of Prisons for promptly notifying families when federal prisoners become seriously ill, suffer life-threatening injuries, or die, as a “basic human dignity of incarcerated people, a concept rooted in the Eighth Amendment and Due Process Clause of the 14th Amendment…”

“Too often, the families of those incarcerated never find out about a serious illness, a life-threatening injury, or even the death of a loved one behind bars,” Ossoff said in a press release.

The Senate bill is S.1322. A companion House bill (H.R. 2718) has been introduced by Representatives Sydney Kamlager-Dove (D–CA), John Rutherford (R–FL), Barry Moore (R–AL), and Glenn Ivey (D–MD).

Ossoff and others introduced the same bill in the last Congress without success. The latest pieces of legislation, unlike earlier effort, have bipartisan sponsorship.

tears201022The BOP stated that its policy is to notify next-of-kin when a prisoner dies. However, Reason has reported that families have “described delays in being notified that their incarcerated loved one had been hospitalized, or even died; having their phone calls ignored; not being allowed to see their loved one in their final moments; delays in being sent the body and death certificate; being given inaccurate or incomplete information about the manner of death; or waiting months and years for the Bureau to fulfill their public records requests for more information about how their loved one died.”

Anecdote supports Reason’s report.  Just ask the Sisk family or the Bardells.  Whether either chamber of Congress cares enough to pass such common-sense and merciful measures in the 2025-2026 session remains to be seen.

H.R. 2718, Family Notification of Death, Injury, or Illness in Custody Act of 2025

S. 1322, Family Notification of Death, Injury, or Illness in Custody Act of 2025

Reason, Bill Would Require Federal Prisons To Notify Families of Serious Illness and Death (April 10, 2025)

– Thomas L. Root

Bryan Gets His Gun – Update for April 24, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GOVERNMENT ENDS RANGE V. ATTY GENERAL NOT WITH A BANG BUT A WHIMPER

fudd250424Last December, the 3d Circuit held that the 18 USC 922(g)(1) felon-in-possession statute was unconstitutional as applied to Bryan Range. Bryan’s recent criminal history included nothing more than a few traffic tickets and fishing without a license, but a quarter century before, he was convicted of making a false statement to get food stamps for his hungry family. That was enough to trigger the F-I-P prohibition on his possessing a gun.

The en banc opinion held in essence that a prior nonviolent offense that qualified under 18 USC 922(g)(1) to prohibit someone from possessing a gun violated the 2nd Amendment. Applying New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, the Circuit held that Bryan

remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.

This was not the case’s first rodeo. An en banc opinion held the same for Bryan in June 2023, but the Biden Dept of Justice sought Supreme Court review. While the petition was pending, the Supreme Court handed down Rahimi, a case that held that temporarily disarming someone subject to a domestic protection order complied with the 2nd Amendment. SCOTUS remanded all pending 2nd Amendment challenges on its docket – including Range – for reconsideration in light of Rahimi.

gun160711The 3d Circuit ruled that the end of 2024 that nothing in Rahimi changed its position on Bryan’s 2nd Amendment right to buy a hunting rifle. I was fairly sure that the government would head to the Supreme Court again in order to protect America from the dangerous likes of Bryan. Indeed, the DOJ sent signals that it was seriously considering doing just that.

In mid-March, President Trump’s Acting Solicitor General asked the Supreme Court for extra time to decide what to do with Range, reporting that she

has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the Court of Appeals’ ruling. Additional time is also needed, if a petition is authorized, to permit its preparation and printing.

SCOTUS obliged with an extension until last Tuesday (April 22).

With no fanfare, DOJ let the revised deadline pass without a petition for certiorari being filed. This means that the Range decision is final, and in the 3d Circuit at least, people who have been convicted of nonviolent felonies now have a path to restore their gun rights.

What the DOJ decision not to challenge Range at the Supreme Court might mean for the broader question of the as-applied constitutionality of 922(g)(1) is less clear. It could be that DOJ’s compliance with President Trump’s executive order to lessen the burden on 2nd Amendment rights has led it to permit jurisprudence to develop that ties F-I-P to dangerousness rather than the existence of a prior conviction. It could also be a strategic decision that Range was not the hill the government wanted to die on, and that there are better cases in the SCOTUS pipeline (Duarte, perhaps) for the government to use to draw a line in the F-I-P sand.

circuitsplit220516Ohio State University law professor Doug Berman, writing last December in his Sentencing Law and Policy blog, suggested that “[b]ecause this Range ruling creates a clear circuit split on the constitutionality of 18 USC 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the U.S. Dept of Justice. But maybe the new incoming [DOJ] officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Regardless of the DOJ’s reasons for taking a pass on Range, the en banc decision is now final, and Bryan can have his gun. What is more, the finality is an incremental but very clear step toward resolving the question of how Bruen and Rahimi limit the reach of F-I-P. Certainly, people in 3rd Circuit with F-I-P convictions may have a path open to them (albeit one with procedural hurdles to cross) to challenge their 18 USC § 922(g)(1) convictions.

Dept of Justice, Application for an Extension of Time Within Which to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit, Case No. 24A-881 (March 12, 2025)

Range v. Attorney General, 124 F.4th 218 (3d Cir., December 23, 2024)

Sentencing Law and Policy, En banc 3rd Circuit again finds federal felon-in-possession ban unconstitutional as applied to Bryan Range (December 23, 2024)

– Thomas L. Root

More BOP Officers Being Poisoned by Drug Smuggling – Update for April 22, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP STAFF FALL ILL FROM SUSPECTED MAILROOM DRUGS

BOP staff poisonings continue at an alarming pace.

Last week, 15 federal BOP employees at FCI Thomson were hospitalized after suspected exposure to illegal drugs in the prison mail room, requiring emergency Narcan administration. This incident followed another suspected exposure the prior week of 10 BOP staffers at FCC Victorville.

Spice_drugThis follows a death last summer of Marc Fisher,  BOP mailroom supervisor at USP Atwater (California), after what authorities have described as exposure to a drug-impregnated document sent as “legal mail” to an inmate in the facility. The headlines at the time were sensational, alleging that he may have succumbed to fentanyl.  However, the drug tests showed that the drugs on the document were MDMB-4en-PINACA – known as “spice” – rather than fentanyl.

The Government disclosed in February that “[t]he autopsy report indicates that the correctional officer died of natural causes from a heart attack. According to the autopsy report, ‘the circumstances of death suggest external influences, at least fear in the setting of an apparently criminal act (mailing illicit substances to an inmate). However, there is no evidence that MDMB-4en-PINACA entered his blood stream.”

The fact that Mr. Fisher was not killed directly by the illegal drugs is scant comfort to BOP employees. Kendall Bowles, president of AFGE Local 3969 (representing 650 BOP employees at Victorville), said in a press release, “The Bureau’s leadership continues to force us to process contaminated materials with inadequate protection, showing complete disregard for officer safety.”

Making matters worse, Bowles said, is what he claims is the BOP’s attempts to hide these incidents from union officials. “Under a controversial Executive Order carried over from the Trump Administration, they didn’t even notify me when staff were rushed to the hospital and they failed to issue a press release. Their secrecy speaks volumes about their priorities.”

trumpfriend250408Compounding this crisis, according to Jon Zumkehr, President of AFGE Local 4070 (representing Thomson employees), is the recent White House executive order stripping BOP staff of collective bargaining rights. “This Executive Order is having a devastating impact on our officers,” Zumkher said. “They feel completely unprotected, unsupported, and they’re watching their friends and colleagues being carried out of BOP facilities after being revived with Narcan. We need help.”

EIN Presswire, Fifteen Thomson Federal Prison Staff Members Exposed and Hospitalized (April 16, 2025)

WTTV, FCC Victorville Prison Law Enforcement Officers Hospitalized After Drug Exposure (April 13, 2025)

Executive Order, Exclusions From Federal Labor-Management Relations Programs (March 27, 2025)

– Thomas L. Root

Is Trump’s Plan to Deport American Federal Prisoners Legal? – Update for April 21, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ILLEGAL IMMIGRANTS SENT TO EL SALVADOR – ARE AMERICAN PRISONERS GOING NEXT?

CETMO250422While meeting with Salvadoran President Nayib Bukele in the Oval Office last week, President Trump said what he was thinking: “Homegrowns are next. The homegrowns. You gotta build about five more places [like El Salvador’s terrorist prison, CECOT]. It’s not big enough. We always have to obey the laws, but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters.”

“Yeah, we’ve got space,” Bukele responded.

Administration officials chuckled in the background. “I’m talking about violent people,” Trump had said a few minutes earlier. “I’m talking about really bad people.” Obviously, the only “really bad people” he could send – the only people over whom he could obtain custody to deport – are federal prisoners.

Attorney General Pam Bondi is reportedly considering legal mechanisms by which Trump could send American citizens to CECOT.

“It is pretty obviously illegal and unconstitutional,” Ilya Somin, a professor at George Mason University Law School, told NBC News.

americansflee250422Emma Winger, a lawyer at the nonprofit advocacy group American Immigration Council, said last week that the law that imbues the government with authority to deport people does not apply to US citizens. In fact, the British policy of removing people it alleged to be criminal from the colonies to be put on trial elsewhere was one of the grievances that led to the Revolutionary War 250 years ago.

“I can’t see how exiling someone is permissible as part of the bundle of rights that are fundamental to citizenship,” Anthony Kreis, a professor at Georgia State University College of Law, told NBC. “doubly so if the effort to house American citizens overseas means turning a person over to a foreign authority,” he added.

“The U.S. government has already deported someone to this prison illegally and claimed no recourse to get them back, so the courts must shut down this unconstitutional train wreck before U.S. citizens are unlawfully caught up in it,” David Bier, an immigration expert at the libertarian Cato Institute, told NBC News.

Very early on Saturday morning, the Supreme Court issued an extraordinary order even as more immigrant detainees were being bussed to waiting aircraft for a flight to a Salvadorean prison, directing the Government in terse language “not to remove any member of the putative class of detainees from the United States until further order of this Court.” This came after a government lawyer told a lower court that while no flights were planned for Good Friday, he couldn’t make any assurances about the weekend. NBC News later aired video of immigrants loaded on buses headed for a flight to El Salvador at o-dark-thirty on Saturday morning, providing ICE with a fig leaf (in that the departure did not happen on Friday, as the lower court had been assured).

In other Administration criminal justice news, 21 federal prisoners whose death sentences were commuted to life without parole by President Biden filed a lawsuit last Wednesday arguing that a Trump executive order that they be imprisoned in harsh conditions “consistent with the monstrosity of their crimes and the threats they pose” violates the 8th Amendment.

douglassdeathbondage250107In a complaint filed in U.S. District Court for the District of Columbia, the prisoners said that as a result of Trump’s order, “in defiance of the controlling statutes, regulations, and policies governing the BOP redesignation process,” Attorney General Pam Bondi “ordered BOP staff to engage in a new sham process that categorically predetermined that all Plaintiffs—regardless of what the statutory BOP redesignation process had determined—will be incarcerated indefinitely in the most oppressive conditions in the entire federal prison system…”

The President likes that “hopeless bondage” stuff.

Would Trump try to contract federal prisoners to overseas prisons? He has stated that he would like to. Would he try it? Judge for yourself from the Administration’s handling of the El Salvador deportations and deliberate attempts to make life imprisonment for former death-row prisoners especially punitive.

Reason, Homegrowns Are Next (April 15, 2025)

NBC News, ‘Obviously illegal’: Experts pan Trump’s plan to deport ‘homegrown criminals’ (April 14, 2025)

Slate, Alito’s Emergency Deportation Dissent Misrepresents the Most Crucial Fact in the Case (April 21, 2025)

Washington Post, They were on federal death row. Now they may go to a supermax prison. (April 18, 2025)

Complaint (ECF 1), Taylor v. Trump, Case No. 1:25-cv-01161 (USDC District of Columbia, April 16, 2025)

– Thomas L. Root

New BOP Sheriff In Town – Update for April 18, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP APPOINTS NEW BOP DIRECTOR

lawandorder161219The Federal Bureau of Prisons has been rudderless since January 20th, when then-director Colette Peters was unceremoniously shown the door by the incoming Trump Administration. Last week, Trump announced that he was appointing William “Billy” Marshall III, commissioner of the West Virginia Division of Corrections and Rehabilitation, as the latest BOP Director.

Trump said on social media that “Billy is a Strong Advocate for LAW AND ORDER. He understands the struggles of our prisons better than anyone, and will help fix our broken Criminal Justice System. Congratulations Billy, you will inspire us all!”

Marshall, a Marshall University and the West Virginia State Police Academy graduate, served 25 years with WVSP before retiring in 2017. He then served as the Criminal Investigation Director for the state Dept of Military Affairs and Public Safety. He became head of the state prison system in 2023.

lawandorderb161219Walter Pavlo wrote in Forbes that Marshall is “someone who is going to be tough on crime. However, he is going to head an organization that is substantially larger than the approximately 6,000 state prisoners in West Virginia… There are federal prison compounds that hold more inmates than all of the state of West Virginia.” Nearly 9,000 federal prisoners are held in BOP facilities located in West Virginia.

“WV regional jails have come under scrutiny for squalid conditions, excessive use of force and record numbers of deaths,” the Los Angeles Times reported. “They were the target of several civil rights suits, including one filed in 2022 that alleged the jail had broken toilets infested with maggots, 70 people sharing a single shower, and people being forced to sleep on ‘cold, wet floors in the winter without heat’.”

Marshall accused inmates of “ma[king] up claims of inhumane treatment and [telling] relatives to spread them,” television station WCHS reported in 2023.

excessiveforce250418Lydia Milnes, an attorney who has sued the WV DCR several times, told the Times, “I’m concerned that he comes from a past where the culture is to use force to gain control as opposed to considering less violent alternatives. He has continued to foster a culture of using excessive force.”

A separate suit, which the corrections department settled in 2022, alleged widespread failures of the jails’ medical and mental health care.

Forbes, Trump Announces New Director of the Bureau of Prisons (April 11, 2025)

Los Angeles Times, Trump’s new director of federal prison system led a troubled state agency (April 12, 2025)

– Thomas L. Root

1st Amendment Bites BOP – Update for April 17, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DC COURT RULES PRISON REFORM ADVOCATE CAN SUE BOP OVER EMAIL BLOCK

Prison reform advocate Pamela Bailey and her More Than Our Crimes foundation may proceed with her claim that a Bureau of Prisons Trulincs email block on her communications with prisoners violates her 1st Amendment rights.

1stAmendment250306U.S. District Judge Paul L. Friedman granted the BOP’s motion to dismiss 1st Amendment retaliation claims but said Bailey could go forward with her claims on violation of her 1st Amendment free speech and 5th Amendment due process rights.

Bailey sued last April, claiming that seven BOP facilities – FCI Ray Brook, USP Big Sandy, FCI Hazelton, USP Marion, FCI Pekin, FCI Florence and USP Beaumont – blocked her messaging access beginning in 2022. The only reason ever given to her was that some inmates had added her to their approved list of contacts without her full, correct name being stated.

The government has since argued that Bailey was helping inmates pass messages on to other inmates. Unimpressed with this argument, Judge Friedman last June granted a preliminary injunction, ordering “that the BOP restore Ms. Bailey’s TRULINCS access” at the seven facilities.

freespeech221213“In order to ensure that Ms. Bailey’s TRULINCS access is not unconstitutionally blocked during the pendency of this suit,” Judge Friedman wrote, “the Court will also prohibit the BOP from blocking Ms. Bailey’s TRULINCS communication with inmates at those facilities, absent a specific, factual determination of misconduct by Ms. Bailey or the inmate that is timely communicated Ms. Bailey in writing.”

More than Our Crimes states on its website that it “amplifies the voices of the nearly 200,000 Americans in federal prison — many of them people of color. While they were once convicted of serious crimes, our members are ready for a second chance to live freely and contribute to their families and society. Meanwhile, we advocate for a humane prison environment that is centered on rehabilitation.”

Opinion (ECF 28), Bailey v. Federal Bureau of Prisons, Case No. 1:24-cv-1219 (D.D.C., Apr 11, 2025)

Opinion (ECF 18), Bailey v. Federal Bureau of Prisons, Case No. 1:24-cv-1219, 2024 U.S. Dist. LEXIS 114113 (D.D.C., June 28, 2024)

More Than Our Crimes.org

– Thomas L. Root

Opacity, Thy Name Is Sentencing Commission – Update for April 15, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SENTENCING COMMISSION ADOPTS AMENDMENTS BUT DROPS METH GUIDELINE CHANGE

meth240618The bad news first: At last Friday’s U.S. Sentencing Commission meeting, the Commission did not vote on – in fact, did not even mention – the amendment it studied last summer and proposed in January to change the existing 2-level Guidelines enhancement for high methamphetamine purity levels. This means that there will be no change in the meth guidelines until November 2026 at the earliest (and maybe not even then).

What the Commission did do: The USSC is amending Guideline § 2D1.1 to cap the drug tables at Level 32 if the defendant had a mitigating role in the offense (that is, received a role reduction under USSG § 3B1.2 for a minor or minimal role). More critically, the Commission – concerned that courts have applied the § 3B1.2 role reduction too sparingly over the years – is adding commentary directing that a § 3B1.2(a) reduction is generally warranted

if the defendant’s primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout… A § 3B1.2(b) reduction is generally warranted if the defendant’s primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (such as being motivated by an intimate or family relationship, or by threats or fear to commit the offense).

This is a welcome change. Sentencing courts have been surprisingly stingy over the years in applying minor role reductions. The Commission is saying that the drug guidelines should focus more on role in the offense and less on drug quantity (a metric that prosecutors have found is easy to manipulate).

supervisedrelease180713The other significant change for the people already sentenced is to supervised release. The Commission is urging courts to apply supervised release where needed rather than reflexively, guidance which would dramatically reduce the number of defendants to whose cases it is added to the end of a sentence.

The supervised release change would adopt an individualized approach to decisions on early termination of supervised release, making getting off supervision after a year much easier for defendants. The proposed changes resolve the Circuit split on whether a releasee must show extraordinary reasons supporting termination, instead directing a court to perform an “individualized assessment of the need for ongoing supervision” and ending supervision if it determines that “termination is warranted by the conduct of the defendant and in the interest of justice.”

In determining a defendant’s criminal history, prior convictions are counted as different offenses even if sentenced at the same time if they were separated by an “intervening arrest.” The 3rd, 6th, 9th, and 11th Circuits have held that a citation or summons following a traffic stop does not qualify as an intervening arrest. In the 7th Circuit, however, if a defendant is arrested for selling crack on the street corner on Tuesday, makes bail Tuesday night, gets a speeding ticket on Wednesday, and is arrested again for selling crack on Thursday, those two arrests have added six criminal history points to the defendant’s Guidelines calculations for what in most other Circuits would be scored as a 3-point criminal history, essentially part of a continuing offense. The 7th says that a traffic stop is enough to trigger the “intervening arrest” standard.

The Commission has proposed an amendment holding that a traffic stop, followed by the issuance of a summons, is not an arrest for criminal history purposes.

Robber160229Under USSG § 2B3.1(b)(4)(B), an enhancement in a robbery sentence is called for if a victim is physically restrained. The Commission proposes amending the enhancement to provide that the psychological coercion of possessing a firearm alone is not enough. Instead, the increase will apply only where “any person’s freedom of movement was restricted through physical contact or confinement, such as being tied, bound, or locked up, to facilitate the commission of the offense or to facilitate escape.”

No decision was made on the retroactivity of any of the changes, but the Commission proposes study and comment on whether to make the drug minimal role, criminal history, and physical restraint amendments retroactive. That decision will be made this summer.

So what’s my beef about opacity? Jonathan Wroblewski described it well in an incisive Sentencing Matters Substack:

In this 40th anniversary year of the Sentencing Reform Act (SRA), and 20th anniversary year of the Supreme Court’s decision in Booker, the Commission said it would be reflecting on the core goals of the Sentencing Reform Act, the progress that has been made towards meeting them, and what actions might be taken now, and in the future, to further them. It sounded like a big deal… The published proposals made clear that the Commission was seriously considering making fundamental change to the guidelines system…

USSC250415With expectations high, last Friday, the Commission’s amendment year came to an end with a rather short and quite opaque public meeting, unbecoming given the importance of the issues at stake and the process leading up to it. There were votes on amendment proposals for sure, but almost no explanation from commissioners for the consequential choices they were making. It turned out to be quite a disappointment.

First, there was no discussion of the Commission’s thinking and how it arrived at its decisions. The Commission spent two and half days in deliberations behind closed doors, and then in a public meeting of less than a half hour, explained nothing of how those deliberations resulted in the actions taken and not taken. Judges, practitioners, Members of Congress, advocates, inmates, family members, and academics spent countless hours developing and submitting written comments to the Commission, and there was virtually no explanation of how those comments were considered. Second, the Commission in the end did not even address the categorical approach. No matter how many times the Commission places the issue on its priorities – and it has over and again for over a decade – it just can’t seem to find a fix. And again, no explanation.

Third, the Commission did not address the unwarranted disparities in methamphetamine sentencing identified by numerous commentors. This seemed especially perplexing given Judge Reeves’ own detailed decision in United States v. Robinson, holding that the methamphetamine purity enhancement had ceased to have any meaning. And again, no explanation. Fourth, the Commission made no fundamental reform to the drug guideline or to Step One of any other guideline. It did take steps to ensure that drug offenders who play a mitigating role are not over-punished. But the Commission has tried this before – numerous times, in fact – and it is far from clear that the steps taken will make a significant difference in drug sentencing policy.

I seldom quote at such length from another work, but Mr. Wroblewski’s Substack is worthy of it, and in fact is worthy of a full read by anyone affected by the Sentencing Commission’s work.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 11, 2025)

WHNT, U.S. Sentencing Commission approves revisions to federal sentencing guidelines (April 11, 2025)

Jonathan Wroblewski, Sentencing Matters Substack (April 14, 2025)

– Thomas L. Root

Second Chance for Second Chance – Update for April 14, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BUREAU OF PRISONS REVERSES COURSE ON HALFWAY HOUSE

Last Thursday, the Bureau of Prisons hastily walked back its March 31st memo limiting Second Chance Act halfway house placement—which under 18 USC 3624 can be up to 12 months—to only 60 days (with RDAP placement limited to 125 days).

badidea161003The BOP tersely announced in a press release that “[b]ased on concerns about how these limitations impact the population, BOP will not proceed with the planned changes to limit SCA placement to 60 days. A new memo was issued today, April 10, 2025, rescinding the previous guidance.”

The memo is not yet publicly available.

In its March 31st memorandum, the BOP cited budget constraints for the limitation and stated that prisoners “releasing to the community under Second Chance Act (SCA) authority after April 21, 2025, will have their dates adjusted and reduced to a maximum of 60 days.”

Writing in Forbes, Walter Pavlo said that the reversal resulted from an “uproar” from inmates, their families, advocates, and civil rights attorneys. The reversal coincides with a BOP warning of a renewed scam where people impersonating BOP employees were shaking down families for money to secure quicker halfway house placement for loved ones.

pooremptypockets231017Pavlo says that “the BOP is going to be honoring the earlier dates given to prisoners to start their halfway house placement.” This may be, but the financial pressures on the agency that resulted in the March 31st restriction remain unchanged. Without the text of the new memo available, whether the good old days are back remains unclear.

BOP, Second Chance Act (SCA) Placements – Previous Guidance Rescinded (April 10, 2025)

Forbes, Bureau of Prisons Rescinds Controversial Limits On Halfway House (April 10, 2025)

– Thomas L. Root

A Change in DOJ Approch to 922(g)(1)? – Update for April 11, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CURIOUS DEVELOPMENT(?) ON § 922(g)(1)

You may remember that the leading case on whether the 18 USC § 922(g)(1) felon-in-possession (F-I-P) statute complies with the 2nd Amendment is the 3rd Circuit decision, Range v. Garland (now renamed in honor of new Attorney General Pam Bondi).

gunfreezone170330Bryan Range, disqualified from owning a gun because of a conviction 25 years ago, sued the government, arguing that F-I-P was unconstitutional as applied to his case, because his conviction was non-violent – a food-stamp false statement case – and it was 25 years in the past. The 3rd Circuit agreed in an en banc opinion in 2023, and the government took it to the Supreme Court.

SCOTUS remanded it for further consideration in light of United States v. Rahimi. Last December, the 3rd Circuit again found F-I-P unconstitutional as applied to Bryan’s situation.

Late last month, Bondi filed for a 30-day extension to decide whether to ask the Supreme Court to accept the case for review. She said, “The Acting Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the court of appeals’ ruling…”

On February 7, President Trump gave Bondi 30 days to submit a policy plan for enacting pro-gun reforms. Nearly two months later, nothing has been done.

gun160711Trump directed that “[w]ithin 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.”

The 30-day due date for that report would have been March 9th, but that day came and went without any movement from Bondi or the White House. When this omission got some attention, the Department of Justice told ABC News that the deadline was extended to March 16. That date passed, too, with no report. Since then, according to The Reload, DOJ has not produced the report or provided any updates as to when it will be released.

gibsongun250411However, the New York Times reported a week ago that the DOJ was about to restore gun rights to actor Mel Gibson and 9 other people. The Times said, “The decision, which also applies to nine others, was approved by Attorney General Pam Bondi, according to the people, who spoke on the condition of anonymity for fear of retaliation. The specifics are expected to be published in The Federal Register…”

Attorney General, Bondi v. Range, Case No. 24A881 (March 12, 2025)

White House, Executive Order – Protecting 2nd Amendment Rights (February 7, 2025)

The Reload, Where Is the DOJ’s Second Amendment Report? (April 6, 2025)

New York Times, Mel Gibson’s Gun Rights to Be Restored by Justice Dept. (April 3, 2025)

– Thomas L. Root

How You Say It Is As Important as What You Say – Update for April 10, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHEN IT COMES TO 2241 PETITIONS, PROCEDURAL DETAILS MATTER

goddetails210517Back in early 2022, William Maxwell filed a petition for habeas corpus under 28 USC § 2241, arguing that the BOP had failed to consider him for priority transfer to home confinement under the CARES Act. He threw in a Festivus of other grievances as well –  the BOP had treated him differently than other people (naming specifically Michael Cohen and Paul Manafort), it had denied him time credits, denied him extra minutes for phone use, refused him expanded commissary spending limits, denied him transfer to a halfway house, refused him preferential housing at privilege, and withheld other privileges he said the First Step Act provided him.

The district court dismissed his petition for failure to exhaust administrative remedies. Bill appealed.

Last week, the 5th Circuit denied the appeal for a completely different reason, because a § 2241 petition was the wrong vehicle for what he wanted from the court.

The 5th Circuit said, “A habeas petition is the proper vehicle to seek release from custody, while a civil rights suit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics is the proper vehicle to attack unconstitutional conditions of confinement and prison procedures. The ‘bright-line rule’ our court has adopted is that if a favorable determination of the prisoner’s claim would not automatically entitle him to accelerated release, then the proper vehicle is a civil rights suit.”

Bill wanted transfer to a halfway house or home confinement. Because neither remedy would entitle him to accelerated release, “the relief he seeks is properly brought in a civil rights suit,” the Circuit said.

BivensdeadThe holding underscores the need to pay attention to procedure. Bill had spent over three years to end up right where he started, needing to exhaust remedies for a non-2241 civil action.

At the same time, the 5th’s glib suggestion that Bill needed to bring a Bivens action conveniently ignores the fact that the Supreme Court has so gutted Bivens in a string of decisions ending with the 2022 Egbert v. Boule case that any hope of relief from a Bivens action is illusory.

Maxwell v. Thomas, Case No. 23-40699, 2025 U.S. App. LEXIS 7899 (5th Cir. April 3, 2025)

– Thomas L. Root