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

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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

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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

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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

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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

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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

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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

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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

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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

Trump Wants You Out of Here – Update for April 8, 2025

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PRESIDENT TRUMP, THE PRISONER’S FRIEND

I get appreciative mail from admirers of my blog all the time. This one from a grateful prisoner came in last week. (Note: Whatever else my correspondent might be serving time for, it probably isn’t for being an English teacher):

I am rally getting sick of you woke shit.Trump trump Please tell me why you did not E-Mail us abought Biden pardoned Adam Shift who made up a Russian Coulson and played that shit on the hole country for 4 years. Your Nothing but a Dim Hack stop tooting waters and stick legal cases.

Today’s post probably will not raise this “Dim Hack[‘s]” stock with my grateful reader much, because I am failing to mention Joe Biden at all while I am “tooting waters” (whatever that means).

trumpfriend250408But the evidence is the evidence: Mr. Federal Prisoner, Donald Trump is not your friend.

You might think that President Trump would have a little more appreciation for how easy it is to become a felon in this country after his bumpy ride over the past four years. After all, he himself is still a felon – with 34 counts from which he cannot pardon himself – in New York State.

Trump claims he was wrongly accused and wrongly convicted. The appeals process is not over, so he may be right. Surely, a lot of people in federal prison feel the same way about their convictions, and you’d think the Prez might feel a little kinship with them.

But President Trump, it seems, has learned little from his four years in the criminal law desert. While he has no problem pardoning his sycophants and fellow travelers who racked up felonies while trashing the Capitol and assaulting cops in his name, he appears to remain contemptuous of people whose crimes of conviction may not have been committed in service to his glory.

Trump told reporters last Sunday that he would “love” to send federal inmates to the Terrorism Confinement Center (CECOT), El Salvador’s notorious mega-prison, but he first has to check with his legal people on whether he is allowed to.

CECOT250408While on Air Force One while en route back to Washington from Mar-a-Lago, Trump was asked whether he plans to pursue El Salvador President Nayib Bukele’s offer to house American prisoners. “Well, I love that,” Trump said. “If we could take some of our 20-time wise guys that push people into subways and that hit people over the back of the head and that purposely run people over in cars — if he would take them, I would be honored to give them.”

“I don’t know what the law says on that, but I can’t imagine the law would say anything different,” he said. “If they can house these horrible criminals for a lot less money than it costs us, I’m all for it, but I would only do according to the law.”

Imprison federal prisoners for “less money than it costs us.” That doesn’t sound like a President who wants to adequately fund the BOP for infrastructure repairs, full staffing, FSA programming, and halfway houses, now, does it?

Trump has already invoked the Alien Enemies Act of 1798, intended to detain and deport noncitizens during wartime, to expel 238 Venezuelan migrants to El Salvador, where they are being held in CECOT.

Bukele said in February that he had offered the United States “the opportunity to outsource part of its prison system. We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison… in exchange for a fee,” he wrote in a post on the X formerly known as Twitter.

sonice250408While touring CECOT in February, Secretary of State Marco Rubio praised Bukele’s offer to house federal prisoners, calling it “an extraordinary gesture never before extended by any country.”

It would be flatly unlawful to send federal prisoners, whether citizens or not, to a foreign prison. Under 18 USC § 3621, anyone sentenced to prison for a federal crime “shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624.” While noncitizens can be transferred to their home country under the treaty transfer program, 18 USC § 4107 requires that the prisoner consent to the transfer.

Newsweek, Donald Trump Says He Loves Idea of Sending Americans to El Salvador Prison (April 7, 2025)

The Hill, Trump on possibility of sending American inmates to El Salvador prison: ‘I love that’ (April 7, 2025)

USA Today, Trump on sending American prisoners to El Salvadorian prisons: ‘I love that’ (April 7, 2025)

– Thomas L. Root

Second Chance Act Restrictions Constrict Halfway House Placement – Update for April 7, 2025

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IT’S ALL ABOUT THE BENJAMINS

benjamins210222Bureau of Prison inmates were rocked last week by a systemwide announcement that prisoners with a Second Chance Act (SCA) halfway house placement on or after April 21st would see their placements reduced (but how much is unknown), and any future designation will be limited to a maximum of 60 days. Inmates completing the Residential Drug Abuse Program (RDAP) – who formerly got 180 days in most cases – will now be limited to 125 halfway house days.

A little background: The Holy Grail for the 94% of federal prisoners who will someday be released is getting to halfway house, a residential facility located in a community setting in which former inmates and recovering substance abusers transition to outside living with regular jobs, banking, family relationships, and the like.

If my unscientific survey of the hundreds of my newsletter readers who have cycled through halfway houses is any indication, halfway house living is fairly miserable. It features an unpleasant mix of all levels of violent and nonviolent state and federal inmates, a staff that is poorly trained compared to Bureau of Prisons personnel, extra layers of bureaucracy, and petty rules enforced with the constant fear of being sent back to a secure institution. Still, for virtually all prisoners, halfway house represents the promise of relative freedom to walk the streets (subject to curfews and severe limitations on where they are going and where they may not tarry), see loved ones, and work in a job where they feel like employees instead of inmates.

One of the first questions a new federal inmate asks is when he or she will be eligible for halfway house placement. Eligible prisoners can earn First Step Act credits for successful programming, with the first 365 credits shortening their sentences by up to a year. Any credits over 365 entitles a prisoner to more halfway house or home confinement time.

Even if prisoners are ineligible for earning FSA credits, the Second Chance Act of 2007—codified in 18 USC 3624(c)—permits (but does not require) the BOP to place any inmate in a halfway house for up to 12 months.

halfwayhouse250407The BOP has always been focused on placing the inmates at the highest risk of recidivism and with the greatest need for services in halfway house. Contrary to inmates’ prevailing belief, halfway house was never intended to be a reward for good conduct or an accolade for good character, but rather a prerelease tool to increase the chances that the corrections system would never see the prisoner again.

The BOP has traditionally employed a five-factor metric to place inmates in halfway house and to determine the duration of their stay. The five-factor review focuses on the resources of the facility, the prisoner’s offense, and the history and characteristics of the offender.

Last fall, the BOP began providing inmates with tally sheets showing them the date they would be eligible for halfway house assuming they earn the maximum number of FSA credits possible for them to get. The sheet also included the convenient but questionable administrative practice of adding the maximum 12 months they could also be granted for halfway house under Second Chance. The listing had an asterisk note warning prisoners that they were not automatically given 12 months, but rather explaining that the number of months of halfway house they would be allocated under SCA would be determined later and only after the individualized five-factor review.

fineprint180308Hardly anyone reads the fine print, and that applies with extra vigor to prisoners searching for as much hope as they could find. In many minds, 12 months of SCA halfway house on top of all of the FSA halfway house they could earn became an entitlement, not just a possibility.

In crafting the First Step Act, Congress made the policy error of treating halfway house as a reward for successful programming. The more programs completed, coupled with good conduct and a low risk of recidivism, would result in a prisoner earning more halfway house. This turned the BOP’s approach to halfway house on its head: instead of halfway house resources being used for people who needed it most, First Step allocated the resources to people who needed it least.

Money, That’s What I Want:  Amidst all of this prerelease fantasy, no one has appreciated the sobering truth behind the COIF numbers. “COIF” – the Cost of Incarceration Fee – is a calculation the BOP publishes annually of how much it costs to keep a federal inmate locked up. In Fiscal Year 2023 – the last year for which COIF data are available –the average COIF for an inmate housed in a BOP prison facility was $120.80 per day. The average FY 2023 COIF for a Federal inmate housed in halfway house was $113.53 per day.

It seems like a no-brainer. It clearly costs less to place a prisoner in a halfway house than to keep him in prison, right?

Maybe but maybe not. The COIF consists of “the obligation encountered in Bureau of Prisons facilities (excluding activation costs)” incurred in keeping an inmate, according to 28 CFR 0.96c. “Obligations” are how much is booked, not how much is actually spent. Right now, for example, the BOP calculates that its facilities repair costs are $3 billion, costs that have not been paid (and may never be paid).

Shaneva D. McReynolds, president of FAMM, said last week, “Prisons come with a menu of fixed costs that do not apply to halfway houses and certainly do not apply to home confinement.” Her point was that the BOP should maximize the number of months and number of inmates in halfway house, but her point disproves her position.

Fixed costs, by definition, do not increase according to inmate count. In other words, if $100.00 of the prison COIF represents fixed costs and $21.00 represents marginal costs, then sending a prisoner to halfway house only saves the BOP $21.00 while costing it about $114.00 in contract fees to the halfway house. Net loss to the BOP: about $93.00 a day per prisoner placed in halfway house. The prison is still there, the light bill still has to be paid, staff still has to be paid, the roof still needs to be fixed.

moneythatswhat231128No one doubts that the BOP is bleeding cash. The agency currently has nearly 6,000 fewer employees than needed, a shortfall costing over $437 million in overtime charges, BOP associate deputy director Kathleen Toomey told Congress in February 2025. A third of the FY 2023 overtime went for almost 76,000 outside medical trips and 84,000 hospitalizations.

Prison consultants Dr. Susan Giddings and Bruce Cameron wrote last week that halfway house placement “is actually more expensive than the cost of incarceration in a minimum-security prison and, in many cases, a low-security prison as well.” They said,

It’s too late for this fiscal year. The damage is done, and all the Bureau can do is stop the hemorrhaging. But if President Trump and Congress act now, fiscal year 2026 could be turned around. Home Confinement placement is significantly less costly than halfway house or incarceration, but in order to take advantage of the savings and better use the residential halfway house resources more efficiently, the status quo is not the answer. It’s time to flip the table and get something done.

Phillip Nunes, executive director of the Eastern Ohio Correction Center and president of the International Community Justice Association, told prison consultant Walter Pavlo that halfway houses currently have capacity and could expand without needing new contracts with the BOP.

Former BOP Acting Director Hugh Hurwitz said the same in the Atlanta Journal-Constitution last December. Hurwitz told prison consultant Walter Pavlo last week that the proposed 60-day limit is insufficient for inmates – particularly those who have served long sentences – to make the adjustment to the street.

No room at the inn?

While Giddings asserts that halfway house costs more than imprisonment – which, because the prison costs include fixed and marginal costs alike while halfway house is all marginal dollars – Pavlo disputes the claim: “It is difficult to see how the BOP’s decision to limit halfway houses is going to end up saving any money. In fact, both the First Step Act and the Second Chance Act, both heavily reliant on halfway house placement, were passed by Congress overwhelmingly on the assumption that they would save money on the costs of incarceration.”

The Sobering Reality:  Giddings and Cameron said that while the BOP announcement cutting halfway house placement was “devastating” for many prisoners and their families,” it is unsurprising:

The Bureau has had to prioritize lengthy First Step Act (FSA) prerelease placements over SCA placements for months. These lengthy FSA placements, anywhere from 12 to 26 months in length, tie up halfway house and home confinement resources for well beyond the average four- to five-month placement. The issue was further exacerbated by the previous Administration’s refusal to support the Bureau in court challenges regarding whether the Bureau had any discretion in these designation decisions to include cases where the individual presented public safety risks. The Bureau was told the only consideration was the time credits: nothing else mattered.

The BOP has argued in court that it is not required to honor FSA credits for halfway house, but it has lost that fight. So how do you pay a big new bill required by law from a budget that is already under intense pressure? Answer – you stop spending on any part of the budget over which you have control.

One inmate told me that at her facility, “Girls were devastated. Screaming, crying, shutting down, signing out of RDAP.” Another prisoner demanded to know whether it was true that “Trump passed a new law to where federal inmates can only get 60 days of halfway house now a that you can’t get up to 6 months anymore?”

Of course, Trump had nothing directly to do with this. As far as implementing the SCA, nothing in that law required the BOP to give prisoners any halfway house time. Whether there is a solid legal challenge to last week’s decision has yet to be seen.

Race to the Courthouse:  If my email can be believed—and I got a lot of email on the subject—inmates are now filing a blizzard of suits challenging the BOP action. The cottage industry of people who provide litigation support services to federal prisoners is leading the charge.

Badlaw200804One newsletter reportedly told inmate readers that the matter could be challenged using the same theory that won in Rodriguez v. Smith, a 2008 9th Circuit decision. A more careful review of Rodriguez would have shown even a casual reader that several decisions since then—such as Hindman v. Inch—have held that the Rodriguez holding was superseded by the SCA and has been reduced to a historical curiosity.

Another prisoner complained to me that the BOP “wants to keep us in prison longer, which means spending more money to keep us locked up. Then they don’t want to implement the Second Chance Act, which is law. We can’t break the law, but they clearly can by not implementing the Second Chance Act.”

Blame First Step for encouraging the belief that halfway house is an entitlement and blame the BOP’s administrative laziness for convincing prisoners and their families that a full year in halfway house was a given.

As for the BOP’s intentions, it’s not about keeping people in prison longer. It’s all about the Benjamins, baby.

Giddings and Cameron, The Bureau Takes Additional Drastic Actions to Contain Costs as They Struggle with Budget Issues (April 1, 2025)

Cost of Incarceration Fee, 89 FR 97072 (December 6, 2024)

Forbes, Bureau of Prisons Is A “Powder Keg” With Problems (April 4, 2025)

Forbes, Under Budget Pressure, Bureau Of Prisons To Cut Halfway House Time (April 1, 2025)

Atlanta Journal-Constitution, The Bureau of Prisons has plenty of open beds for reentry (December 6, 2024)

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008)

Hindman v. Inch, Case No 2:17-cv-00323, 2018 U.S. Dist. LEXIS 46834 (S.D.Ind., March 22, 2018)

– Thomas L. Root