Loper Bright May Be Coming for BOP Time Credit Rules – Update for April 28, 2026

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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.

LOPER BRIGHT TO THE RESCUE ON FSA RULES?

Raahshjeem Benson (we’ll just call him ‘George’) was sentenced in December 2020. But he was not transferred to his designated Bureau of Prisons facility for 15 months after that, instead staying in a county lockup. When George finally got to his designated federal prison, the BOP administered his individualized risk and needs assessment, and he started earning FSA credits.

George asked for credits for the 15 post-sentence months he spent in county, where – according to him – he participated in programming or productive activities which should earn him First Step Act time credits under 18 USC § 3632. These credits can be applied to shave up to a year off a prison sentence, and any excess credits earned beyond that buy a prisoner more halfway house and home confinement at the end of a sentence.

But because George didn’t receive the individualized assessment of needs that First Step requires the BOP to perform on every prisoner in order to match him or her with the most effective programs until after he had completed 15 months of programs, the BOP refused to give him any credits for the programs he had taken before reaching his designated prison.

Benson filed a pro se 28 USC 2241 habeas petition, requesting that the BOP be ordered to award him about 150 FSA credits he said he earned for programs completed while in the county jail. Without conducting discovery or requiring a response from the Government, the district court dismissed his petition.

Last week, the 4th Circuit vacated the decision and sent the case back to the district court.  While it would be easy to read too much into the Circuit’s ruling, two holdings are significant.

First, after George’s needs assessment, the BOP calculated that he was at medium risk for recidivism under the PATTERN system. Medium-risk inmates can earn FSA credits but normally cannot use them until their recidivism risk falls to low or minimum. The government argued that since George couldn’t use any of the credits he wanted awarded to him, he had no standing to bring the habeas corpus.“Standing” is a constitutional concept: a petitioner who has nothing at stake in the suit lacks standing to bring the action, and the case is dismissed as moot.  For a controversy to be moot, the 4th held, it must lack at least one of the three required elements of Article III standing: (1) injury in fact, (2) causation, or (3) redressability. Because recidivism levels can change with prisoners’ age and completion of programs (among other reasons), the Circuit ruled that George had a reasonable chance of being able to use his FSA credits in the future. What’s more, the FSA lets medium- and high-risk inmates “petition to be transferred to prerelease custody or supervised release [upon] approv[al] by the warden of the prison,” based on determinations listed in 18 USC § 3624(g)(1)(D)(i)(II), so George had a chance of using the credits, even if it was not a very strong chance.

Thus, “the FSA does not squarely foreclose a prisoner’s eligibility for prerelease custody or supervised release based on a single determination that he has a “medium” risk of recidivism,” the Court said. While “it limits that prisoner’s options, [] it leaves two paths to eligibility… (1) two subsequent reassessments of “low” risk; or (2) the warden’s approval of the prisoner’s petition.” These paths are enough to give George standing to bring the habeas.

On the merits of George’s claim, the BOP argued on appeal that the statute requires “successful participation” in programs to earn FSA credits, and its rule requires that “successful participation” in programming must include a prior determination by BOP staff that the programs or productive activities have been recommended, based on the inmate’s individualized risk and needs assessment. 28 CFR § 523.41(c)(2). Because George was not evaluated until he reached prison, the agency argued, nothing he did while in county lockup could count. The BOP argued that its rule was a reasonable interpretation of the statute and thus the court had to accept the BOP’s interpretation under the well-known Chevron doctrine.

However, while George’s case was pending, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo. The Loper Bright opinion held that courts were to decide questions of law without deferring to what the agencies charged with carrying out the laws thought they might mean. Thus, the 4th Circuit sent the case back for the district court to decide whether “successful participation” in programming requires that the BOP evaluate the inmate first.

George has a lot of hurdles to cross back in district court, including showing that he actually did engage in worthwhile programs and productive activities while in county jail. But the Circuit’s standing holding and application of Loper Bright non-deference are a significant victory for inmates and the first of many successful attacks on BOP rules of questionable rationality.

 

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

Chevron USA Inc. v. NRDC, 467 US 837 (1984)

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

~ Thomas L. Root

Disparity is Gross But So What? – Update for April 27, 2026

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GROSS DISPARITIES ARE GROSS BUT NOT ALWAYS REMEDIABLE

Back about 25 years ago, David Luster robbed a bank. And then another one. And another one. And so on. The money was good, but the process was a little too much for the authorities: they caught up with him, and by the time it was over, he was convicted of two counts of armed bank robbery, two 18 USC § 924(c) counts, and an Armed Career Criminal Act (18 USC § 924(e)(2)) count.

Dave was sentenced to 535 months. A lot of that resulted from the second § 924(c) conviction carrying a mandatory minimum sentence of 25 years. After the First Step Act passed in 2018, the § 924(c) mandatory minimum fell to 7 years (because Dave brandished a gun). In other words, Dave’s sentence likely would have been more like 320 months or so, and he’d be out now.

Dave moved for a sentence reduction under 18 USC § 3582(c)(1)(A), arguing that he had extraordinary and compelling reasons under USSG § 1B1.13(b)(6)’s “unusually long sentence” standard for the grant of a reduced sentence. He asked the court to consider the gross disparity between his 535 months and the 320 months he would have received under the First Step Act’s revised sentencing scheme, as well as his “exemplary rehabilitation,” strong family-support system, and genuine remorse. Dave emphasized that he was a first-time offender who engaged in “aberrant behavior” and did not pose any further risk to the public after over two decades in prison.

The district court denied his motion, holding that Dave’s reasons were not extraordinary and compelling and that the 18 USC § 3553(a) sentence factors weighed against his release, due primarily to the violent nature of the offense.

Last week, the 11th Circuit affirmed, holding that the district court did not abuse its discretion. Even though USSG § 1B1.13(b)(6) allows courts to consider non-retroactive changes in law that create a “gross disparity,” the Circuit noted, the policy statement is discretionary – stating only that the disparity “may be considered” after giving “full consideration of the defendant’s individualized circumstances.” Unlike the other five extraordinary and compelling reasons listed in § 1B1.13(b), only (b)(6) gives the district court the option of finding that unchallenged facts are not “extraordinary and compelling.”

What’s more, the 11th held that Dave’s district court was entitled to deny relief based on the § 3553(a) factors alone. The judge’s emphasis on the violent nature and circumstances of the robberies (including brandishing and placing guns to the victims’ heads) provided an adequate, permissible basis to deny the motion. The weight to give the § 3553(a) factors and the decision to grant a sentence reduction, the Circuit ruled, “remain firmly in the court’s discretion, and the district court’s decision here did not fall outside that range.”

This decision illustrates a practical rule: even where a defendant identifies a major sentencing disparity created by non-retroactive changes in the law, the district court has the authority to reject the disparity as an extraordinary and compelling reason. The other five reasons listed in § 1B1.13(b) are fact-driven: for instance, if you’re going to die of a disease within a few months, that fact is extraordinary and compelling whether the court wants it to be or not. Only (b)(6) lets a court agree that a gross disparity exists due to a change in the law, but refuse to find it justifies relief as an extraordinary and compelling reason.

United States v. Luster, Case No. 24-13731, 2026 U.S.App. LEXIS 10494 (11th Cir., April 13, 2026)

 

~ Thomas L. Root

Let’s Not Automatically Believe the Lawyer Over the Defendant – Update for April 24, 2026

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GUILTY PLEA WITHDRAWAL MOTION REQUIRES HEARING WHERE FACTS ARE IN DISPUTE

Rule 11(d) of the Federal Rules of Criminal Procedure allows a defendant to withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and just reason.”

It sounds ‘easy, peasy,’ as the Brits like to say. But anyone who has ever tried to withdraw a guilty plea knows better. It gets even tougher when the defendant says one thing but his ex-lawyer says the other.

When that happens, it’s convenient for the court to credit what the lawyer says without a hearing at which both the attorney and the defendant testify and are cross-examined. But ‘convenient’ and ‘due process’ sometimes clash.

Christen Clark, being tried on a drug indictment, ran through four lawyers in a year. The court appointed one when he was arrested, but Chris hired his own within a few days. That guy didn’t work out, so Chris brought on Owen Kalis. Owen filed the usual pretrial discovery motions, a motion to suppress, and some motions to continue over the next 8 months. In early May 2024, Chris entered a guilty plea to all six counts of his indictment.

Two weeks after the guilty plea, Attorney Owen revealed to everyone that he was getting out of the law business immediately and permanently. His notice was accompanied by an order from the Supreme Court of Ohio accepting his resignation with “disciplinary action pending.” The court appointed a new lawyer to represent Chris just as he sent a letter to the judge requesting to withdraw his guilty plea on the basis that Owen neither showed him the evidence, explained the consequences of Chris’s plea, nor admitted that he himself was at risk of being disbarred.

Chris’s new lawyer followed up with a formal motion to withdraw the guilty plea. The district court denied the motion without a hearing and sentenced Chris to 270 months.

Last week, the 6th Circuit reversed, holding that Chris was entitled to a hearing on his motion to withdraw. A defendant “may be entitled to an evidentiary hearing on a presentence motion to withdraw if there are factual matters at issue which bear directly on the controversy,” the 6th ruled, but the decision is left to the “wide discretion of the district court.”

The government claimed it had provided all discovery materials to Attorney Owen. Owen declared in an affidavit that he had shown it to Chris. The Circuit ruled that these claims were at odds with what Chris said happened, and that a hearing was required to resolve the dispute.

Chris “raises factual disputes bearing directly on the knowing and voluntary nature of his plea that are not clearly dispelled by the record,” the Circuit held. “[I]t is not clear from the record that Chris had an opportunity to review the Plea Agreement before the hearing, and the district court stated at the start of the hearing that it was apparent Chris was not prepared… Finally, the fact that Owen’s resignation was due to a pending disciplinary action related to his problems with the representation of other clients lends some credence to Chris’s assertion of ineffective assistance of counsel.”

United States v. Clark, Case No. 24-4068, 2026 U.S. App. LEXIS 10889 (6th Cir. April 16, 2026)

~ Thomas L. Root

Let’s ‘Beat’ Inmate Abuse – Update for April 23, 2026

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LIFE DOES NOT IMITATE ART

Sen Marsha Blackburn (R-TN) last week introduced a bill to increase the criminal penalties for inmates assaulting BOP correctional officers.

The Safer Prisons Act of 2026, S. 4305, cosponsored by Sen. Tom Cotton (R-AR), would double the maximum term of imprisonment for the offense.

“Federal prisons have become increasingly unsafe for the brave men and women who serve as federal corrections officers,” Sen. Blackburn said. “Incidents of inmates assaulting BOP officers have been on the rise and often result in PTSD for the affected officers as they continue to do their jobs.”

Coincidentally, last week, a BOP employee from FCI Talladega was arrested for obstructing governmental operations and resisting arrest after he allegedly ran police and fire barricades, failed to abide by barricades and road closures on April 13. He reportedly drove through the scene while emergency crews were fighting a fire and then resisted attempts to take him into custody.

Obviously, the employee is innocent until proven guilty (a concept alien to the BOP disciplinary system), but this suggests that the assailants may not be just inmates.

S.4305, Safer Prisons Act of 2026

Ripon Advance, Blackburn proposes bill to double down on inmates who assault federal prison officers (April 17, 2026)

WABM-TV, Talladega Prison Staffer Arrested on Obstruction, Resisting Charges (April 16, 2026)

~ Thomas L. Root

Sentencing Commission Builds Us Up, Disappoints Again – Update for April 20, 2026

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BRINGING FORTH A MOUSE

The US Sentencing Commission held its long-anticipated April meeting last Thursday, taking up weighty proposals to reduce the methamphetamine purity guidelines and to bring some sense to the career offender label.

It brought forth a mouse.

No changes in meth, no changes in career offender status…. Everything that was adopted passed quickly and unanimously. Everything that was abandoned disappeared without comment, like one of those old-time Kremlin photos where the image of a newly-disfavored apparatchik was crudely cut out of an official photo.

Writing in the Sentencing Matters substack, Jonathan Wroblewski (a 35-year veteran of the Dept of Justice and long-time ex officio member of the Sentencing Commission) summed up last week’s meeting:

With expectations high, the Commission’s 2024–25 and 2025–26 amendment years ended in April 2025 and again last Thursday with short, opaque public meetings — genuinely unbecoming given the importance of the issues at stake and the extensive process leading up to them. The Commission voted on some of the published amendment proposals but not on others. It offered no explanation for the consequential choices it made and the actions it took. It was a profound disappointment in transparent policymaking.

As has become its habit, the Commission held a short and seemingly scripted meeting in which nothing was discussed, nothing was debated, and nothing was explained. Like the backlog of guidelines for which retroactivity was proposed in 2024 and 2025 – only to die without further mention – the guideline amendments that were rejected simply disappeared.

The proposed amendments that made it through the Commission’s process include

  • addition of new paths for offenders to get credit for presentence rehabilitative efforts.
  • increased emphasis on the availability of sentences eligible for probation, home confinement and split sentences.
  • restructuring of the loss table for economic crimes to account for inflation over the past decade.
  • elimination of the sophisticated means enhancement, and
  • a new enhancement to account for the non-economic harm suffered by victims of economic crimes.

The only drug guideline change to be adopted was a boost in fentanyl-related sentencing levels, adopted to implement the HALT Fentanyl Act of 2025 (HR 27). Apparently, for all of the options proposed to moderate the meth guidelines, the Commission decided to do nothing. I say “apparently” because, as usual, the USSC provided no explanation why some proposals did not make the cut.

The abandonment of the “career offender” proposal is troubling. The Sentencing Reform Act of 1984 directs the Commission to ensure that “career offenders” receive sentences near the statutory maximum. The Commission’s definition of what constitutes a career offender, however, has caught many defendants in the net whose criminal histories do not suggest “career criminal” by any stretch of the imagination.

The change in the “career offender” guidelines would have abandoned the current “categorical approach” to what prior convictions were crimes of violence or drug offenses, substituting instead a list of federal and state crimes that apply. Burglary would no longer apply, felonies of any kind for which the defendant served less than 90 days would not apply, and defendants would have a chance to show that some crimes of violence should not count because their conduct was completely nonviolent.

Forget that change.

Last December, the Commission asked for public comment on options to change the methamphetamine guidelines. One proposal is to simply eliminate the Guidelines distinction among a meth mixture, meth (actual), and high-purity ice. All meth would be scored the same. An alternative option would be to keep the distinctions in the current meth Guidelines but offer reductions for people who had minor roles, who qualified for the 18 USC § 3553(f) safety valve, or who were involved only because of family relationships or duress.

Forget that change, too.

The commission, chaired by U.S. District Judge Carlton Reeves (SD Mississippi), currently has five voting members, with two empty seats. During President Trump’s first term, the Commission lost its quorum. Trump appointed people so far outside the mainstream – such as Eastern District of Virginia US District Judge Henry “Hang “Em High” Hudson – that even a Republican-controlled Senate wouldn’t confirm them. The upshot was that the Commission went five years without being able to amend the Guidelines until President Biden appointed new members.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said, “In the end, though, the amendments voted on today are more fairly described as modest rather than major. I am generally inclined to want to celebrate the ‘less is more’ character of today’s amendment. And yet, with the Commission’s very future a bit uncertain given current and possible future Commissioner vacancies…”

Professor Wroblewski asks the thoughtful question: “So, as we pass the end of the 2026 statutory guideline amendment window and head to the end of the terms of two more of President Biden’s commissioners, what are we left with?”

The nutshell answer? Lost opportunities.

USSC, Reader-Friendly Proposed Sentencing Amendments (April 16, 2026)

Sentencing Matters, The Failure of President Biden’s Sentencing Commission (April 20, 2026)

Law 360, Sentencing Commission Votes To Enact Modest Reform Agenda (April 16, 2026)

National Law Journal, ‘No Longer One Size Fits All’: Tweaks to U.S. Sentencing Guidelines May Ease White-Collar Penalties, Cut Litigation (April 17, 2026)

HR 27, HALT Fentanyl Act of 2025

Sentencing Law and Policy, After lots of major proposals, US Sentencing Commission adopts some modest guideline reforms (April 16, 2026)

~ Thomas L. Root

Billions for a Presidential Whim – Update for April 17, 2026

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MONEY AND WASTE – THE BOP LAST WEEK

The Trump Administration’s Fiscal Year 2027 budget wish list proposes a $1.7 billion increase to the Federal Bureau of Prisons’ current $8.1 billion budget, building on the $5 billion extra funding for prison repair and staffing the BOP got in last summer’s One Big Beautiful Bill Act.

Tucked into the $1.7 billion is $152 million allocated for the first year of costs to rebuild Alcatraz as a high-security federal prison facility, consistent with President Trump’s fixation of the symbolism of Alcatraz for a “tough on crime” administration. Last summer, the BOP trumpeted, “Alcatraz will stand as a beacon of American resolve, where the most dangerous offenders face accountability. For the public, it’s a promise fulfilled—a stronger, safer America. And for President Trump, it’s a project that will make our nation proud.”

We’re always proud to spend billions on a new supermax when we have a perfectly serviceable one in the high plains of Colorado.

The BOP could use some of its money more judiciously, Senator Cory Booker (D-NJ) told the Internet newsroom NOTUS last week. Booker complained that the BOP frequently transfers inmates to halfway houses long past when they are eligible, wasting millions of dollars in interest payments to nonprofits. “And while BOP said it’s making progress on addressing the delays,” NOTUS reports, Booker “said it’s not happening fast enough.”

“At best, this is an infrastructure and process failure; at worst, a blatant disregard for the law and public safety,” Booker, one of the co-sponsors of the First Step Act, said in a statement to NOTUS.

Homeland Security Today, Trump FY2027 Budget Proposes Record Homeland Security Boost, $1.5T Defense Spending Surge (April 5, 2026)

Filter, White House Budget: No Funds for Housing, Some for Reopening Alcatraz (April 9, 2026)

NOTUS, Bureau of Prisons Wastes Millions Holding Inmates It Could Transfer to Halfway Houses (April 7, 2027)

~ Thomas L. Root

Supremes Still Dodging § 922(g)(1) Constitutionality – Update for April 16, 2026

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922(g) CONSTITUTIONALITY STILL UNSETTLED

The Supreme Court last month denied certiorari to a dozen pending 18 USC § 922(g)(1) petitions for review filed by people who argued that the statute – which prohibits possession of guns by a variety of different classes of people from wife-beaters to dopers to ex-felons – violates the 2nd Amendment as applied to them. These included what I thought was the best felon-in-possession case before it, Vincent v. United States.

The Vincent petitioner had a felony bad-check charge from 15 years before, but had since beaten her substance abuse, obtained a master’s degree and opened her own substance abuse counseling clinic. The 10th Circuit held that § 922(g)(1) constitutionally prevented her from owning a gun. After multiple relistings, SCOTUS decided it would not use Vincent to address the limitations of § 922(g)(1).

Last week, SCOTUSBlog reviewed the status of Supreme Court gun litigation. With respect to § 922(g)(1), it noted that “Justice Amy Coney Barrett is already on record opining that § 922(g)(1) is unconstitutional as applied to individuals convicted of non-violent crimes. After all, the historical tradition recognized in Rahimi extends only to dangerous individuals.” Several lower courts have agreed.

There is a well-developed circuit split on the question. However, the justices seem to be opting to see how the lower courts decide cases in the wake of whatever guidance it will provide when it decides Hemani in the next 75 days.  

The government has been selective about seeking SCOTUS review in the felon cases it has lost in the lower courts, such as largely limiting itself to decisions involving drug use (most likely to be affected by the decision in Hemani). The United States has also argued that the court should await the results of a DOJ rulemaking to provide a process for ex-felons – such as President Trump – to win back their gun rights. But 2nd Amendment advocates argue that § 922(g)(1) is unconstitutional as applied to nondangerous felons, and a program that bestows gun rights on people the government deems deserving turns a constitutional right into a privilege.

Two weeks ago, the 7th Circuit ruled in two separate cases that 18 USC § 922(g)(1) was not unconstitutional on its face or as applied to a defendant. The Court cited a long list of cases from other circuits finding § 922(g) was consistent with the 2nd Amendment, and said, “It is enough to cite the decisions we have mentioned, plus United States v. Watson, which is being released contemporaneously. Watson and the decisions in other circuits say all that is necessary. As in Watson, we reserve decision on as-applied challenges by persons whose felony convictions do not suggest that firearms would be dangerous in their hands. Some courts of appeals allow such challenges; some do not; in this circuit the issue is open. For a person such as Prince, however, once the general validity of § 922(g)(1) has been established, there is nothing more to say.”

SCOTUSBlog, The who, what, and where of gun control (April 7, 2026)

United States v. Hemani, Case No. 24-1234 (argued March 2, 2026)

United States v. Prince, Case No. 23-3155, 2026 U.S.App. LEXIS 9596 (7th Cir. April 2, 2026)

United States v. Watson, Case No. 24-2432, 2026 U.S.App. LEXIS 9597 (7th Cir. April 2, 2026)

~ Thomas L. Root

Sentencing Commission to Adopt Proposed Amendments On Thursday – Update for April 14, 2026

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HERE COME THE NEW GUIDELINES

The US Sentencing Commission has set a meeting for Thursday, April 16, to adopt proposed amendments for the coming amendment cycle.

The Sentencing Reform Act requires that any proposed Guidelines amendments be sent to Congress by May 1. The Commission typically adopts its slate of amendments in April. Congress then has 6 months to vote down any amendment it doesn’t like. If Congress does nothing (which it has done all but once in the SRA’s 36-year history), the amendments will become effective on Nov 1.

For many prisoners, the most important proposed change would be the options to modify the methamphetamine guidelines. One proposal (Option 1) is to simply eliminate the Guidelines distinction among a meth mixture, meth (actual), and high-purity ice. All meth would be scored the same.

An alternative option (Option 2) would be to keep the distinctions in the current meth Guidelines but offer reductions for people who had minor roles, who qualified for the 18 USC § 3553(f) safety valve, or who were involved only because of family relationships or duress.

For theft and economic crimes, the Commission rolled out a proposal to raise the loss tables (which drive the offense level) by an average of 40%, both to simplify application and to adjust for inflation (which was done last 11 years ago).

In a separate proposal, the USSC seeks comment on a proposal to “simplify” the USSG § 2B1.1 loss table by reducing it from 16 levels to 7, with jumps of 4 points for each level. Additionally, the Commission suggests a new USSG § 2B1.1 enhancement to reflect noneconomic harm to victims, such as physical, psychological harm, emotional, and reputational damage, or invasion of privacy.

More interesting is a USSC request for comment on redefinition of the “sophisticated means” enhancement set out in § 2B1.1(b)(10). Currently, “sophisticated means” is widely applied by courts to virtually any economic offense more complex than stealing from a Salvation Army kettle. The Commission seeks to return the “sophisticated means” enhancement to what was originally intended, “committing or concealing an offense with a greater level of complexity than typical for an offense of that nature” and provide further guidance for courts to use when determining whether conduct fits the definition.

Also up for consideration are proposals to expand the sentencing ranges that should be eligible for probation, home confinement, and “split sentences” (half in prison, half on home confinement). More significant are proposed changes in the Guidelines governing whether someone is considered a “career offender,” a label that dramatically increases the advisory sentencing range a defendant faces. The Sentencing Reform Act of 1984 directs the Commission to ensure that “career offenders” receive sentences near the statutory maximum. The Commission’s definition of what constitutes a career offender, however, has caught many defendants in the net whose criminal histories do not suggest “career criminal” by any stretch of the imagination.

None of the proposed amendments will apply to people already sentenced unless the Commission holds a separate proceeding to decide whether retroactivity should apply to any of the amendments.  The Commission has asked for comment on retroactivity in this amendment cycle, but while several amendments have been proposed for retroactivity since 2024, no decision has been made. The Commission has said that it wants to examine the procedure it employs to determine retroactivity, but so far, it’s been like the weather – everyone talks about it but no one does anything about it.

US Sentencing Commission, Public Notice of Meeting

~ Thomas L. Root

Supervised Release Revocation and Conditions: The Gifts That Keep On Giving – Update for April 13, 2026

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THE GOVT GETS ITS WAY ON SUPERVISED RELEASE

The Prison Policy Initiative reported last week that 3.6 million people – twice as many as in federal and state prisons and jails – are on probation, supervised release or parole. In the federal system, supervised release – the federal version of post-incarceration parole – is so pervasive that Congress conditioned getting a 12-month sentence reduction under 18 USC § 3624(g)(3) to the inmate having supervised release as part of his sentence.

So it’s pervasive if not popular. And while how the feds manage supervised release is not very important to people who are still currently locked up, it will be very soon.

Two Circuit decisions in the past week addressed two important details of supervised release, how far a court may go in imposing conditions that govern a person on supervised release and how a court can impose if someone violates those conditions.

Joe Castellano did 12 years transporting child sexual abuse material in violation of 18 USC § 2252A(a)(1). After he got out, he started a lifetime term supervised release with special conditions, one of which prohibited his from accessing or possessing “any pornographic material or pictures displaying nudity or any magazines using juvenile models or pictures of juveniles.”

He violated this condition within weeks of getting out by possessing legal, adult porn, and was sent back to prison for 9 months. After that return, he quickly violated the adult porn ban again, and went back for another 20 months. After he did that time, he violated the adult porn ban a third time and got sent back for another 24 months.

Joe tried to get the ban dropped for adult porn, arguing that the condition was vague, overbroad and didn’t advance the goals of supervision. The district court refused.  Joe appealed, and the 4th Circuit threw the condition out because it wasn’t supported by any “individualized evidence to meet 18 USC § 3583(d)’s ‘reasonably related’ standard” and that “the government didn’t offer any individualized evidence, like the testimony from a witness responsible for Joe’s treatment.”

Joe then got caught having contact with minors, and the district court sent him back to prison for 12 months. Joe then consented to a new condition that banned him from looking at any ‘visual depiction’ of ‘sexually explicit conduct,’ a ban that did not include legal porn. Joe violated that one in two months.

The government then asked the district court to impose a special condition prohibiting Joe’s access to any pornography (even legal), in any form. The government called Joe’s sex offender treatment provider as a witness. She testified in detail that Joe’s use of even legal porn “are barriers to him to be able to make any progress in treatment.” She recommended the total porn ban be reinstated, and the district court agreed.

Joe appealed, but last week, the 4th Circuit upheld the district court. The Circuit ruled that the treatment provider gave “an individualized assessment for why a legal pornography restriction was necessary… [b]ased on six years of clinical observation and treatment.” The 4th held that “[t]he district court relied on individualized evidence, not categorical reasoning,” and for that reason the modification was upheld.

Meanwhile, in the 8th Circuit, Jessie Farmer – who had served the statutory maximum sentence for a drug offense – was sent back to prison for 12 months for violating a supervised release condition. Jessie argued that the 12-month additional term – required by 18 USC § 3583(g) where the defendant refuses to comply with drug testing or tests positive for illegal drugs more than three times in a year – required a jury finding beyond a reasonable doubt to extend prison time beyond the statutory maximum he had already served.

The 8th Circuit rejected Jessie’s claim, holding that a badly split Supreme Court decision in the 2019 United States v. Haymond case did not support his position. In Haymond, a provision of § 3583 requiring a court to revoke supervised release and impose a mandatory 5-year term for a new sex offense was declared unconstitutional under Apprendi v. New Jersey. But here, supervised release was revoked not for a new federal offense (that would require a jury and reasonable-doubt standard), but for simple drug testing failures. The mandatory additional prison term could be skipped by the judge under § 3583(d), and if a prison term was imposed, the judge could select how long that term could be. The fact Jessie had already served the statutory max for his underlying offense simply did not matter.

Prison Policy Initiative, Punishment Beyond Prisons 2026: Incarceration and supervision by state (April 8, 2026)

United States v. Farmer, Case No. 25-1134, 2026 U.S.App. LEXIS 10371 (8th Cir. April 10, 2026)

United States v. Castellano, Case No. 25-4012, 2026 U.S.App. LEXIS 9822 (4th Cir. April 6, 2026)

~ Thomas L. Root

DOJ Drops 23,000 Cases To Nab a Kid in a Bunny Hat – Update for April 11, 2026

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RIGHT PLACE, WRONG TIME

It turns out that a lot of people now doing federal prison time were just caught at the wrong time.

Their cases should have been referred to the DOJ last spring. The odds of not being prosecuted would have been much better.

ProPublica reported last week that in the first days after Pam Bondi – who President Trump fired last week – became Attorney General last year, DOJ quietly closed more than 23,000 criminal cases in the first six months of President Donald Trump’s administration, “abandoning hundreds of investigations into terrorism, white-collar crime, drugs and other offenses as it shifted resources to pursue immigration cases,” according to Pro Publica.

The bulk of these cases were closed without prosecution (called “declinations”). They had been referred to DOJ by law enforcement agencies under prior administrations. While the DOJ routinely declines cases for a number of reasons, the sheer number – about a third of the total number of federal criminal cases brought in a given year – was unprecedented.

DOJ brought 32,000 immigration cases through July 2025, nearly triple the number brought by the Biden administration. It pursued fewer prosecutions of nearly every other type of crime — from drug offenses to corruption — than new administrations in their first six months dating back 15 years.

ProPublica, Trump’s Justice Department Dropped 23,000 Criminal Investigations in Shift to Immigration (March 31, 2026)

~ Thomas L. Root