No Retro, No Concrete Proposals, Sentencing Commission Says – Update for June 18, 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.

SENTENCING COMMISSION WAVES AS ITS CAR CAREENS OFF THE CLIFF

The US Sentencing Commission is down two commissioners (operating with five instead of seven). The terms of two more commissioners expire at the end of this year. Absent quick work by the Trump administration in nominating people that the Senate is willing to confirm (who can forget Trump’s last picks, which included Judge Henry “Hang ‘Em High” Hudson?), we may again have a legally impotent USSC as of January 1, 2027.

When the USSC last lost its quorum in December 2018, five years passed without any amendments being adopted. Trump, in office at the time, apparently saw the Commission as pretty low priority, taking a single stab at populating the Commission and then giving up. It took Biden appointing enough commissioners to fill the chairs again, with the first amendments to the Guidelines since November 2018 adopted in November 2023.

Last week, the Commission published its proposed priorities for the coming year, two broad-brush proposals that are a departure from the specific proposals of years past (such as the methamphetamine tables or theft/fraud loss calculations). Instead, the USSC proposes to undertake an evaluation of the guidelines and federal sentencing practices in light of the Commission’s mission set forth in statute and to “undertake a comprehensive review of the Rules and consider whether any amendments to such Rules may be appropriate to further the agency’s statutory purposes and enhance public engagement with and understanding of the Commission’s work.

This is unmitigated squishiness, much more a navel-gazing existential introspection than a serious consideration of substantive changes in the guidelines to reflect justice or reality.

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog last week that “[i]t seems increasingly likely that the USSC will be without a quorum for the start of 2027 and maybe for years thereafter. That may explain why we are getting two broad ‘review’ proposed priorities rather than any specifics.”

The Commission last week published a Retroactivity Impact Analysis of Certain 2026 Amendments, which examined three proposed amendments in the 2026 package sent to Congress last month. If two of these Guidelines, the “inflationary adjustments amendment” and the “multiple counts amendment,” were made retroactive, nearly 5,000 federal prisoners would be eligible for an 18 USC § 3582(c)(2) sentence reduction.

But they won’t be made retroactive. The Commission reports that it “has chosen to not solicit public comment or hold a hearing on retroactivity. When the Commission submits amendments to Congress, it may decide to publish an issue for comment and hold a hearing on whether to make some or all of those amendments retroactive… The Commission is not taking these steps for any of the amendments submitted to Congress on April 30, 2026.”

Apparently, three Commissioners supported retroactivity for the inflationary adjustment Amendment to USSG § 2B1.1 (the theft-fraud guideline. Unfortunately,  28 USC § 994(a)(2) requires four votes for Commission action, including on retroactivity.

Prof Berman wrote, “There is a reasonable basis to believe that, had the USSC had a full slate of Commissioners, there likely could have been a fourth vote for making at least the inflationary adjustments retroactive. But even though it seems a majority of the five current Commissioners would have voted for retroactivity, that’s not sufficient because there is a statutory requirement of four total votes for the USSC to formally act.”

USSC, Retroactivity Impact Analysis of Certain 2026 Amendments (June 4, 2026)

Sentencing Law and Policy, US Sentencing Commission requests input on policy priorities while indicating recent guideline amendments will not be retroactive (June 11, 2026)

~ Thomas L. Root

From the Sublime to the Absurd at the BOP – Update for June 16, 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.

SEX, PRISON FOOD, AND UNSERIOUSNESS

Serious stuff:   US District Judge Royce Lamberth (District of Columbia), who has been hearing a series of challenges to the Trump administration’s anti-transgender prison policies, granted a preliminary injunction last week prohibiting the Federal Bureau of Prisons from transferring 14 transgender prisoners biological men identifying as women) to men’s facilities while their lawsuit if pending, concluding that the plaintiffs were likely to prevail on their 8th Amendment claims. 

Judge Lamberth, a Reagan appointee, previously enjoined the BOP from  “tapering” hormone therapy for transgender prisons. The BOP has sought a stay of that order from the DC Circuit.

Meanwhile, in the Northern District of Alabama, a female inmate has filed a Federal Tort Claims Act lawsuit against a BOP correctional officer (who is already facing criminal charges) alleging that she was raped and sexually assaulted more than 20 times at FCI Aliceville.

According to the lawsuit, Corrections Officer Felix Wilder began grooming the plaintiff in October 2023, directing her into isolated areas of the facility where he forced her to have unprotected sex on more than 20 occasions through September 2024.

Worrisome Stuff:  In response to a May 1, 2026, BOP request for information from vendors about interest in outsourcing food service, commissary, and health care across all 122 BOP institutions nationwide, the Center for Science in the Public Interest and the Carceral Nutrition Project wrote to Congress last week urging that any privatization plan be abandoned.

“Outsourcing BOP food and canteen services to a private company will not make incarcerated people healthy again,” said CNP founder Daniel Rosen, contributor to a recent CSPI report on prison food privatization, wrote. “It won’t create healthy prisons, or healthy communities, as RFK, Jr., has promised. It’s a corporate giveaway, and it prioritizes profit at the expense of people’s health and public safety.” 

CSPI and CNP told Congress that, while a number of states have calculated that privatizing carceral food service would save on costs, the report found evidence that outsourcing food service has resulted in inadequate nutrition and portion sizes, inconsistent food safety practices, unpalatable meals due to over- or under-cooking, and spoiled, contaminated, or maggot-ridden food. 

Silly Stuff:  Serial whiners and former reality stars Todd and Julie Chrisley have filed a lawsuit accusing one of their former defense attorneys and his law firm of legal malpractice in the federal criminal case that led to their convictions.

The Chrisleys were convicted of defrauding community banks in the Atlanta area to obtain more than $36 million in personal loans by submitting false bank statements, audit reports, and personal financial statements. They contend that legal mistakes made during the case contributed to their convictions, caused them to spend time in prison, damaged their reputations and separated them from their family.

The complaint alleges that their lawyer lacked significant criminal defense experience and that the firm knew this but pursued the representation because of the publicity associated with the family’s celebrity status (which the family itself pursues on a daily basis).

The federal criminal tax and bank fraud investigation against the couple was based on an unlawful, warrantless search by the Georgia Department of Revenue, the lawsuit contends. The judge granted a defense request to suppress the physical documents from that search, but defense counsel didn’t ask the court to suppress “derivative evidence,” including emails, bank records and financial documents that “formed the core of the government’s case,” the lawsuit says. Federal agents got search warrants to obtain specific documents from the Chrisleys’ email accounts, the lawsuit says, based on that tainted GDR evidence, the lawsuit alleges.

“Without that evidence, the government would not have had sufficient evidence to support a conviction,” the lawsuit says.

Todd Chrisley, who whined endlessly while he was locked up about the suffering he endured at minimum-security FPC Pensacola, now brags that he “ran” his “prison block” and got up every day with the “sole intent… to make the prison employees feel miserable,” according to Reality Tea:

Todd, who vowed to help improve the “evil” prison system following his release, said that his “sole intent” while behind bars was to make the prison employees feel miserable. As if their jobs weren’t already difficult and underpaid, Todd said he wanted to make things worse. He’s truly a class act, said no one.

“I was surrounded by miserable human beings,” Todd told his daughter on her podcast. And if he had a mirror, he could have found another one.

President Trump pardoned both Chrisleys in May 2025. But contrary to how the media portray it, courts don’t like suppressing evidence because, as the Supremes said in United States v. Nixon, “Whatever their origins . . .  exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”

Because the plastic couple never had their convictions overturned, the Chrisleys may face a real challenge in proving that – but for the malpractice – they would have been acquitted.

Washington Examiner, Judge blocks transfer of transgender inmates back to men’s prisons, setting the stage for broader judicial clash (June 12, 2026)

WZDX-TV, Corrections officer already facing felony charges named in new federal lawsuit (June 9, 2026)

CSPI, Letter to House and Senate Judiciary Committees (June 9, 2026)

WAGA-TV, Chrisleys sue former attorney over criminal case defense (June 9, 2026)

Insurance Journal, Chrisleys Sue Former Defense Attorney, Alleging Malpractice in Conviction (June 15, 2023)

Reality Tea, Todd Chrisley Boasts About Prison Stay: ‘I Ran My Block’ (August 15, 2025)

United States v. Nixon, 418 U.S. 683 (1974)

~ Thomas L. Root

Venue Still Means Something, Supreme Court Says – Update for June 15, 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.

‘VENUE’ IS WHERE YOU DO IT, NOT WHERE IT’S FELT

The Supreme Court last Thursday handed down a rare decision narrowing the government’s ability to do mischief with criminal venue.

About 20 years ago, I was having lunch with an attorney who was only a few weeks into private practice after a long career as an Assistant US Attorney. He was no backbencher: as an AUSA, he had handled some pretty heavy terrorism and organized crime cases.

We were discussing a criminal tax case the government had brought against an out-of-district defendant, a prolix indictment in which a few counts were based on conduct that had occurred within the district while a substantial majority related to acts that had occurred entirely outside of the district. When I suggested to him that the out-of-district counts had a serious venue problem, he scoffed, “Venue is nothing. It can always be waived.”

“Um, not really,” I responded. “You’re thinking about venue in a civil case. That’s easily waived and nearly as easily overlooked. For criminal venue, you should check out the 6th Amendment.”

As seldom as I am correct, I cherish the memory that I was right about that. Within a month, the court had thrown out seven of the nine counts in the indictment for lack of venue.

The idea behind venue is that a defendant should be tried where the crime occurred and the evidence is located, simply as a matter of fairness to the defendant. Still, criminal venue usually gets little respect. First, venue need only be proven by a preponderance of the evidence. Second, when the crime is a “continuing offense,” it can be tried in any district in which any element of the offense was committed. Third, the criminal code and precedent are full of exceptions and work-arounds: when professional baseball player Darryl Strawberry was charged with tax evasion for filing a tax return in California (where he lived) that omitted a lot of cash he had received over the prior year, he and his agent were charged in the Southern District of New York, because Darryl had sold some memorabilia at a baseball card show there, and the cash he received was subsequently not declared in his tax return. Good enough for venue, the court said. (Darryl was convicted of tax evasion, but he was pardoned by President Trump – himself no fan of the IRS – last year).

And we won’t even try to bring up the Vicinage Clause and the Yellowstone Zone of Death. That’s a discussion for another time.

Last week’s decision was a breath of fresh air, despite some suggesting it is a narrow ruling.  As a Twitter employee in San Francisco, Ahmad Abouammo took money from the Saudi Arabian government for providing personal information on Saudi dissidents and passed it along to a high-level official in the Saudi royal court. One Red Cross worker who was critical of the Saudi government had his information and thereafter was tortured with electric shocks to an inch of his life.

The count in question at the Supreme Court was whether Ahmad could be tried in San Francisco for violating 18 USC § 1519 by creating a fake invoice on his computer in his second-floor Seattle and emailing it to FBI agents who were waiting downstairs.  The government charged him in San Francisco because that was where the FBI investigation was based, rather than in Seattle where he created the document. Ahmad argued that § 1519’s language made the crime complete when he finished falsifying the document, which occurred in his Seattle office.

The government argued that venue was proper in San Francisco because the investigation Ahmad intended to disrupt with the phony invoice was being run out of the FBI office there. But in last week’s 9-0 decision by Justice Elena Kagan, the justices reversed a 9th Circuit conclusion that the “intent” requirement in § 1519 – which criminalizes falsifying documents in a federal investigation – allows the government to prosecute the defendant where such an investigation is located.

Kagan noted the historical purpose of the venue clause, based on the Declaration of Independence’s complaint that the British Parliament often “transport[ed] us beyond Seas to be tried for pretended offences.” The constitutional right to venue where the crime was committed is guaranteed in Article III (which instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed”) and again in the 6th Amendment (giving defendants the right to a jury “of the State and district wherein the crime shall have been committed”).

To implement that constitutional rule, Kagan wrote, courts generally determine the location of a crime’s “essential conduct elements.” The § 1519 “essential conduct element,” the falsification of a document with intent to do so, makes the crime complete.  The defendant does not need to transmit the document to anyone nor use it in any particular way, because the only proscribed conduct is falsification. Thus, venue must be where falsification occurred.

Kagan rejected the 9th Circuit’s view that because Ahmad intended to obstruct a San Francisco investigation, venue was proper there. “This Court has never looked to a statute’s mens rea elements in considering venue. Nor would it make much sense to do so.” Whatever obstructive effects Abouammo’s false invoice may have had in northern California, they were not elements of his crime. And because that is so, those effects cannot figure in determining where Abouammo’s ‘crime [was] committed.’”

Abouammo v. United States, Case No. 25-5146, 2026 U.S. LEXIS 2467 (June 11, 2026)

~ Thomas L. Root

Supremes Add Rare Pro Se Habeas Petition to Fall Docket – Update for June 12, 2026

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CERTIORARI GRANTED ON USING § 2241 PETITION FOR FSA TIME CREDITS

Prisoners earning First Step Act time credits under 18 USC § 3632 use the first 365 credits to shorten their sentences.  Excess credits entitle them to more halfway house or home confinement.

A stark circuit split has developed over whether an inmate can bring a habeas corpus claim when the credits being denied to him would only give him more time in halfway house or home confinement as opposed to a shorter sentence.

Last week, the Supreme Court granted certiorari to a pro se petition that will result in the Court deciding whether a claim regarding application of FSA time seeking only accelerated transfer to halfway house or home confinement can be brought in a 28 USC § 2241 habeas petition.

The case will be argued next fall.

Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)

Sentencing Law and Policy, Supreme Court grants cert on process for federal prisoners to challenge time credits under First Step Act (June 1, 2026)

~ Thomas L. Root

Going Home? First, a Little Minicamp… – Update for June 11, 2026

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RE-ENTRY MINICAMP

Pro teams conduct preseason “mini-camps.”  Why not the BOP?

On May 28, the Bureau announced that it would begin transferring “eligible individuals” to minimum-security camps once the inmates have received a halfway house or home confinement placement date.

The announcement confusingly states that “[t]hese transfers must be completed in accordance with Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification. It also provides that “[w]hile the initiative applies to approved individuals across security levels, initial implementation will prioritize those currently housed in low-security facilities who are appropriate for camp placement.”

The BOP said in a press release that intermediate placement in a minimum-security camp can provide a more community-like setting while preserving structure, oversight and accountability. The Bureau contended that this kind of step-down placement better prepares individuals for release than a direct transition from higher-security institutions.

The confusion is this: If transfers are completed according to PS 5100.08 CN-3, then the people being transferred must already qualify for camp placement. Then, one must wonder, why haven’t they been transferred already? Puzzling…

Correctional News reported, “The BOP also cast the move as an operational and fiscal decision. By relying on existing camp infrastructure — much of which the agency said has historically been underutilized — the bureau said it can reduce reliance on higher-cost placements, lower operating costs and use available capacity more efficiently.”

The BOP said camp placement will not be available to sex offenders, deportable aliens, Disruptive Group members, domestic or international terrorists, inmates who require heightened monitoring, inmates with recent serious misconduct, or cases in which placement would pose an identifiable public-safety risk. That should give the agency ample wiggle room to exclude anyone it deems unacceptable for such placement.

None of this makes the decision a bad one. A “step-down” program like this might make acclimation to halfway house or home confinement much easier. To be sure, it’s some “outside the box” thinking that has not been a BOP brand in the past, and for that, the agency should be commended.

BOP, Strategic Expansion of Minimum-Security Camp Utilization (May 28, 2026)

Correctional News, BOP Expands Minimum-Security Camp Use for Reentry (June 2, 2026)

~ Thomas L. Root

When ‘Danger is My Business,’ 2nd Amendment Offers Scant Protection – Update for June 9, 2026

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HOME IS WHERE THE GUN IS

Curtis Squire had his home searched after a shooting occurred nearby. Police did not find the gun used in the crime, but they did find a different gun. Curtis, who had previous state convictions for conspiracy to possess and distribution of heroin, was charged with being a convicted felon in possession of a gun, a violation of  18 USC § 922(g)(1).

Curtis argued that § 922(g)(1) was unconstitutional under the 2nd Amendment as applied to him, because keeping a gun at home for self-defense was different than taking it out in public, and the history of gun legislation in America recognized as much. He also argued that a drug offense was not inherently violent and was not the kind of crime punished in colonial days by gun confiscation.

Last week, the 5th Circuit disagreed, admitting that Curt’s argument was “novel” but disposing of it nonetheless because what Curtis was convicted of doing – drug dealing – was inherently a dangerous undertaking.

The Circuit held:

[T]he home-based distinction [Squire] attempts to draw within our Nation’s historical tradition is mugged by the reality that our historical laws support his disarmament, even in the special confines of his home. While the Constitution safeguards the core right to keep and bear [arms] inside the home, see District of Columbia v. Heller, 554 U.S. 570, 625-28 (2008), it does not dislocate the government’s regulatory power to strip certain groups of this right, “Congress is entitled to make categorical judgments,” Vidal v. Elster, 602 U.S. 286, 319 (2024) (Barrett, J., concurring in part), including a values-based policy judgment that convicted drug traffickers, such as Squire—whose conviction involved an “inherently dangerous activity,” United States v. Kimble, 142 F.4th 308, 317 (5th Cir. 2025) —may be disarmed under § 922(g)(1) consistent with our historical tradition. That conclusion does not rest upon an “individualized assessment” that Squire is “dangerous,” based on some amorphous understanding of the word. See id. at 318; see also United States v. Mitchell, 160 F.4th 169, 187 (5th Cir. 2025) (“Rahimi did not sweepingly proclaim that ‘dangerousness’ is the new standard for Second Amendment challenges.”). Nor does it reflect a freewheeling judicial balancing of rights and safety. See New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 26 (2022) (explaining the “Constitution demands” that courts jettison “interest balancing” in favor of history and tradition). Instead, Squire’s dangerousness is premised solely on his drug trafficking offense, which places him in “a class of dangerous felons that our regulatory tradition permits legislatures to disarm.” Kimble, 142 F.4th at 318 (emphasis added).

United States v. Squire, Case No. 25-30324, 2026 U.S.App. LEXIS 15873 (5th Cir., June 2, 2026)

~ Thomas L. Root

Compassionate Release Lessons from Rutherford – Update for June 8, 2026

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RUTHERFORD AND THE FUTURE OF COMPASSIONATE RELEASE

Debate over the Supreme Court’s Rutherford v. United States decision continues.  The Marshall Project declared that the Supremes were “tightening early prison release.” Forbes said Rutherford and Fernandez v. United States, its companion case, “mark[] a decisive turn in [compassionate release] evolution, pulling the doctrine back toward its more limited origins and rejecting a more expansive vision embraced by the US Sentencing Commission just a few years ago.”

Before 2018, a defendant convicted of two 18 USC § 924(c) counts in the same proceeding for using a gun in a crime of violence or drug offense faced a mandatory minimum of 30 years. An additional 924(c) would bump it up to at least 55 years. The First Step Act changed the law so that three § 924(c) convictions in the same proceeding carried a mandatory minimum of at least 15 years, not a meager sentence but still only 27% of the old punishment.

In an 11th-hour deal to get votes for FSA passage, the Senate chose not to make the change retroactive.

Nevertheless, many believed that compassionate release could not be only as a response to personal hardship but also serve as a limited mechanism to address inequities embedded in sentencing law itself. The 2nd Circuit in United States v. Brooker and 4th in United States v. McCoy led the charge. Then, in the November 2004 Guideline amendments, the USSC added USSG 1B1.13(b)(6), which permitted relying on the fact that a non-retroactive change in the law created a gross sentencing disparity – along with other factors – to support an “extraordinary and compelling reason” for compassionate release.

Many courts began to treat such a disparity as part of the “extraordinary and compelling” analysis, particularly when combined with rehabilitation and other individualized factors. But various federal circuits split on whether this approach was permissible. Some circuits held that nonretroactive changes in sentencing law could not justify compassionate release. Others concluded that such disparities could be considered, especially when they produced grossly disproportionate outcomes

The Rutherford defendant – who had two § 924(c) sentences for using a gun during a bank robbery – argued that the fact that his minimum sentence would have been about a third of what he got pre-FSA for the gun charges supported grant of compassionate release. Not so, SCOTUS said: Disparities created by non-retroactive amendments are not “extraordinary,” but rather a routine feature of legislative reform. Likewise, they are not “compelling,” because they reflect Congress’s intentional decision to leave existing sentences in place.

At the heart of the Rutherford decision is a reaffirmation of congressional intent and the principle of non-retroactivity. The Court emphasized that when Congress reduces a statutory penalty but declines to apply that change retroactively, it is making a deliberate policy choice. Allowing courts to use that same change as a basis for sentence reduction through compassionate release would undermine what Congress had elected to do.

Writing in Forbes last week, Walter Pavlo observed that “[a]t its core, the Supreme Court’s decision reflects a broader commitment to finality in criminal sentencing. The Court emphasized that Congress has the authority to define crimes and set punishments, and that courts must respect the lines Congress draws, including decisions about retroactivity. This emphasis on finality is not new, but it carries particular weight in the context of compassionate release. By limiting the grounds for eligibility, the Court has reinforced the idea that sentence modification is the exception, not the rule.”

The Rutherford decision will have limited effect on compassionate release filings. The Marshall Project reported that judges cited “unusually long sentence and change in law” as part of their rationale for granting release in about 20% of compassionate release cases.

So what?

In Fernandez, the defendant was granted compassionate release because the court had doubts about his guilt, despite the fact that he was convicted by a jury after less-than-solid testimony by co-conspirators seeking to save their own skins. The Supreme Court said attacks on convictions belong in 28 USC § 2255 motions, not in compassionafe release motions. Last week, Slate asked “why would an innocent prisoner seek compassionate release?” and then answered is own question: “Because Congress and the Supreme Court have severely limited prisoners’ access to federal habeas corpus relief over the past several decades.” 

Rutherford and Fernandez together say compassionate release is not a workaround for procedural limits on correcting legal errors in a criminal case or a substitute for retroactive application of new laws that reduce penalties. Justice Barrett explained that the very term “compassionate release” — which is nowhere found in the statute, by the way – “highlights its focus on granting mercy rather than righting legal wrongs.” But, as former Sentencing Commission ex officio member Jonathan Wroblewski wrote last week in the Sentencing Matters Substack, Justice Barrett provided a roadmap for people seeking compassionate release. In Rutherford, he notes, she repeatedly

underscores that compassionate release is not about the crime itself, the proof of that crime, or changes in the law governing either, but rather about how a defendant’s personal circumstances have changed and who that defendant has now become… As to the meaning of “extraordinary and compelling,” Justice Barrett again is clear. “While the terms ‘extraordinary’ and ‘compelling’ leave room for judgment, they are not so flexible as to encompass any consideration.” “‘Extraordinary’ means ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent’ . . . (‘[o]ut of the usual or regular course or order’). ‘Compelling’ means ‘tending to convince or convert by or as if by forcefulness of evidence’ . . . (‘irresistible, demanding attention, respect’).”

Barrett holds that “the required finding of extraordinary and compelling is ‘a distinct analytical step that imposes independent and ascertainable limits on access to compassionate release.’” As Wroblewski notes, “Barrett effectively endorses a totality of circumstances approach for determining extraordinary and compelling personal circumstances.”

Any movant for compassionate release would do well to make the motion focused on the totality of his or her circumstances. Compassionate release isn’t dead… it’s just become very personal.

Rutherford v. United States, Case No 24-820, 2026 USLEXIS 2294 (May 28, 2026)

Fernandez v. United States, Case No 24-556, 2026 USLEXIS 2295 (May 28, 2026)

The Marshall Project, How The Supreme Court Is Tightening Early Prison Release (June 6, 2026)

Slate, Ketanji Brown Jackson Stands Firm—and Alone—on Compassionate Release (May 29, 2026)

Forbes, Supreme Court Narrows Compassionate Release For Federal Prisoners (June 5, 2026)

Substack, What Compassionate Release Could Still Be (June 4, 2026)

~ Thomas L. Root

Some Odds and Ends – Update for June 4, 2026

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NOTES FROM ALL OVER

Gunning for Restoration:  Fourteen months ago, the Dept of Justice restored rights to several people prohibited by 18 USC § 922(g) from owning guns (including actor Mel Gibson). DOJ announced that it was planning a program to restore firearms rights for nonviolent offenders. A rulemaking proceeding followed, with a comment period that ended seven months ago.

Last Thursday, the DOJ announced a new batch of rights restorations. However, it was limited to just four people, and the DOJ backdated it to the tenure of former Attorney General Pam Bondi. The announcement said nothing about the DOJ’s plan to standardize the rights restoration process.

Gun law and policy newsletter The Reload reported last week that “Thursday’s filing shows little progress, but it does connect to one of the overarching issues with the DOJ’s rights restoration approach. That’s because of the four men former AG Bondi picked, one had filed a Second Amendment lawsuit challenging his firearms prohibition.”

The Reload, Analysis: Where is DOJ’s Gun Rights Restoration Plan? (May 29, 2026)

Who Can Trust DOJ?  A jaw-dropping mea culpa played out in federal district court in Chicago last week, as the US Attorney himself appeared before US District Judge April Perry to apologize for what The New York Times called a “remarkable list of grand jury errors in a case that was dismissed against four Democratic activists about to face trial for impeding the police during a protest last fall at a suburban immigration detention facility.”

The Assistant US Attorney handling the grand jury talked to jurors outside of the courtroom, coaching them to indict. The government dismissed several grand jurors deemed insufficiently willing to approve the indictment. Then, the AUSA doctored the grand jury transcripts to hide what he had done.

The Times said, “[T]he mistakes also pointed to a more important problem: As Mr. Trump has demanded more and more charges against those he perceives as his opponents, prosecutors have felt pressure to push weak cases through grand juries. And that, in turn, has led to an erosion in faith in the Justice Department by both the grand jurors themselves and the judges considering the cases.”

“Your sole goal is to do justice. Your client is justice itself,” Judge Perry told the US attorney. “I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken.”

The New York Times, As Trump Politicizes Justice Dept., Prosecutors Struggle With Grand Juries (May 26, 2026)

Free the Weed: In a May 22 letter to President Donald Trump and Pardon Czar Alice Marie Johnson, 28 Democratic senators and representatives, along with Bernie Sanders (I-VT), asked the administration to pardon everyone in federal prison for non-violent marijuana crimes.

The letter notes that the Administration’s decision to move marijuana from Schedule I under the Controlled Substances Act to Schedule III “does not provide relief for anyone currently in federal prison from a marijuana conviction.” The letter observed that the Sentencing Commission estimates that about 3,000 people are serving time for pot trafficking offenses.

The legislators wrote, “The Bureau of Prisons (BOP) is plagued by capacity issues, both overcrowded 7 and understaffed.8 While it won’t solve the structural issues that have led us here, we believe that commuting the sentences of people with marijuana offenses would both address the overly harsh sentences while simultaneously allowing BOP to focus resources where they are needed most.”

Letter to Donald Trump (May 22, 2026)

Sentencing Commission Quick Facts Released: The US Sentencing Commission regularly releases “Quick Facts,” short data documents that make for an interesting read as they fulfill the USSC’s goal of giving “readers basic facts about a single area of federal crime in an easy-to-read, two-page format.”

The Commission has issued a spate of new “Quick Facts” publications based on its latest Fiscal Year data.  The newest set of postings by the USSC on the “Quick Facts” page covering a range of offenses and offenders, including Guidelines Career Offenders, illegal reentry, alien smuggling, drug trafficking (including separate publications focused on fentanyl, fentanyl analogue and methamphetamine trafficking), theft and fraud, healthcare fraud, money laundering and government benefits fraud.

USSC, Quick Facts (May 19, 2026)

~ Thomas L. Root

Compassionate Release Takes It on the Chin – Update for June 2, 2026

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COMPASSIONATE RELEASE HIT BY SCOTUS, BUT THE SKY’S NOT FALLING YET

The Supreme Court last week confirmed the legality of restrictions imposed by most federal circuits on what may be considered “extraordinary and compelling reasons” for sentence reduction under 18 U.S.C. § 3582(c)(1)(A), the so-called compassionate release statute.

The decisions – Rutherford v. United States and Fernandez v. United States – are disappointing. But the sky’s not falling.

To win compassionate release, a prisoner must show the existence of extraordinary and compelling reasons for grant and that the prisoner is not a danger to the community. The Court must find that the compassionate release “is consistent with applicable policy statements issued by the Sentencing Commission” and must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

In Fiscal Year 2025, 2,795 compassionate release motions were filed nationwide, with 14% of those motions granted.

In last week’s double-barreled blast at compassionate release, the Supremes ruled in Rutherford that an inmate serving a long sentence that he would not get today because of a non-retroactive change in the law. The usual example is someone with three 18 USC § 924(c) convictions from before 2018 because he carried a gun while selling marijuana every day for three successive days. Before the First Step Act passed, he would have gotten 25 years consecutive time for the second and third days’ gun, for a combined mandatory 18 USC § 924(c) sentence of at least 55 years. After FSA, he would have gotten only 15 years at minimum.

The Sentencing Commission said that such a sentence disparity due to a change in the law constituted one of its list of extraordinary and compelling reasons even though the change in the law was not declared retroactive by Congress. The Supreme Court disagreed.

In Fernandez, the defendant convinced the judge that while a 28 USC § 2255 motion could not be granted based on the evidence of innocence he presented to the court, the court should award compassionate release in part because of the judge’s serious reservations about the credibility of co-conspirators who had rolled on the defendant and testified (rather unconvincingly) that he was guilty.

The Supremes ruled that a compassionate release motion could not be used as an end-around on 28 USC § 2255 habeas corpus by making questions about the reliability of the conviction into extraordinary and compelling reasons for the grant of compassionate release.

The decisions, both written by Justice Amy Coney Barrett, are troubling. Both the 6-3 Rutherford and the 8-1 Fernandez decisions seemed as though the majority was writing its own common-law policy on what can never be considered “extraordinary and compelling reasons” for a sentence reduction. But Congress explicitly authorized the Sentencing Commission, not the federal courts, to determine what constituted extraordinary and compelling reasons for a compassionate release reduction.  Both cases read like a policy dispute between SCOTUS and USSC, and the law says that USSC should win that dispute every time.

Rutherford holds that “[t]he statutory text and structure make clear that Congress’s nonretroactive change to § 924(c) — considered by itself or in combination with other factors—cannot make a prisoner eligible for compassionate release. To the extent that it counsels otherwise, the Commission’s policy statement is invalid… The disparity that results from Congress’s decision to leave a sentence untouched cannot serve as one of those [extraordinary and compelling] reasons.”

In Fernandez, the Court asserts “the supposed invalidity of a conviction is not among the ‘extraordinary and compelling reasons’ that justify compassionate release… [A] reason is not ‘compelling’ if Congress has channeled it through postconviction statute.” These seem like Court-made policies, not defensible statutory construction.

Sen Richard Durbin (D-IL), one of the FSA’s authors, issued a statement saying, “When we wrote the First Step Act, we clearly sought to expand federal judges’ discretion to consider compassionate release as part of an effective smart-on-crime approach to reforming our justice system. We will be exploring options to uphold the integrity of the First Step Act, including further legislation.”

Ohio State University law prof Doug Berman, writing in his Sentencing Law and Policy blog, said,

I think what the ‘statutory text and structure make clear’ in this context is that the US Sentencing Commission, and only the USSC, is properly authorized to make law and policy regarding ‘what should be considered’ grounds for sentence reductions. I hope the USSC (as well as lower courts) will see the new restrictions concocted by SCOTUS in Fernandez and Rutherford to be limited and narrow so that district courts continue to have proper authority to grant sentence reductions for various reasons when a federal prison term no longer advances the purposes of punishment set forth by Congress in 18 USC § 3553(a). But, given the vibes of these opinions, it seems likely the Justice Department will claim that they dramatically remake possible grounds for sentence reductions, and also likely that lots of district courts will now consider their reduction authority to be greatly constrained.

Still, the holdings will not change compassionate release for most compassionate release  movants, who can continue to plead the extraordinary and compelling reasons for grant listed in USSG 1B1.13(b).

USSC, Compassionate Release Data Reports (May 20, 2026)

Rutherford v. United States, Case No. 24-820, 2026 U.S. LEXIS 2294 (May 28, 2026)

Fernandez v. United States, Case No. 24-556, 2026 U.S. LEXIS 2295 (May 28, 2026)

Sentencing Law and Policy, What are the contours of the new sentence-reduction law and policy concocted by SCOTUS in Fernandez and Rutherford? (May 28, 2026)

~ Thomas L. Root

Hopemonger Peddles RDAP Misinformation – Update for June 1, 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.

HE KNOWS EVERYTHING, BUT EVERYTHING HE KNOWS IS WRONG

Over the past 10 years of writing a newsletter, I have often railed at hopemongers, people who call themselves a “prison consultant” and dispense news and advice to federal prisoners intended to get families to part with money for spurious reasons.

Customarily, I have avoided naming names (except once, for “Oaks of Justice”). I am now naming another, chiefly because TikTok and the widespread availability of cellphones in prisons have combined to give this guy a platform that offers unparalleled opportunity to badly advise inmates.

Last week, I watched a new video panic from Kyle Sandler (who runs a website called Federal Prison Tips), in which he claimed that the Bureau of Prisons has “changed” 18 USC § 3621(e). There’s “a new 10-year lookback for crimes that can preclude you from taking the RDAP program,” Kyle announced breathlessly as “breaking news” that only he had uncovered.

“3621E, it’s changed because it used to be just dependent on the instant offense!” an eye-patched Kyle exclaimed. “The other significant change is that inmates that have shorter sentences will no longer be eligible for the full year off!”

Oh, the humanity!

Kyle manages to pack more error and misinformation into two and a half minutes than most people can spew in an hour.  He’s not just wrong, he’s spectacularly wrong. Let’s try to clean this mess up:

The BOP issued a Program Statement in March (P.S. 5162.06) that updated its list of offenses it deems to be crimes of violence for BOP programming and designation purposes. A few were added, but notably, 18 USC § 922(g) – the statutory list of all those people prohibited from possessing a gun – was dropped.

Early last month, the BOP issued a change to its 8-year-old Program Statement regarding the award of early release credit for successful completion of the Residential Drug Abuse Program. The Program Statement highlights its changes in yellow for easy reading and simple comprehension.

Easy to comprehend, unless, of course, you’re Kyle.

The only change in the whole Program Statement is this: “For current US Code offenses, DSCC legal staff will refer to the Program Statement Categorization of Offenses to determine whether an offense precludes early release under § 3621(e). For current D.C. Code offenses, DSCC legal staff will refer to D.C. Code 23-1331(4).”

That’s it. There’s no “new” 10-year look-back. The BOP has “looked back” at prior offenses for at least a decade. Read the old Program Statement if you doubt this. It’s a cinch that Kyle should have before spewing his “advice.” And while I’m on it, there’s no change in 18 USC § 3621(e). This is because, as anyone who didn’t snooze through high school government class knows (and I’m talking to you, Kyle), the BOP has no ability to change § 3621(e), which is a federal statute. The BOP is just an agency. Only Congress has the power to change a statute.

As well, there’s no applying the Categorization of Offenses list to any prior offense at all. The few prior offenses that are disqualifying had to occur in the past 10 years, and they are set out (like they always have been) in 28 CFR 550.55. They include such undeniably violent crimes as homicide, rape, robbery, aggravated assault… that kind of thing.  The Categorization of Offenses list has nothing to do with those.

Staying with us on this, Kyle?

Finally, Kyle’s other “significant change” that he pitches as earth-shattering: inmates with shorter sentences “will no longer be eligible for the full year off.”  That sliding scale of decreasing time off for the under-30-month set has been in the Early Release Procedures Program Statement since at least 2016. It did not change in the new Program Statement.

Kyle, meet Dennis Steven Wright… As for the rest of you, don’t panic. Do your own research. It can’t be any worse than Kyle’s, and it probably will be a lot better.

Federal Prison Tips, RDAP Program Change (May 28, 2026)

Bureau of Prisons, P.S. 5162.06, Categorization of Offenses (March 19, 2026)

Bureau of Prisons, P.S. 5221.02 CN-3, Early Release Procedures Under 18 U.S.C. § 3621(e) (May 7, 2026)

~ Thomas L. Root