BOP Boldly Foreys Into the 21st Century – Update for July 13, 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.

IPADS FOR EVERYONE!

Sixteen years after Apple introduced the iPad, the Federal Bureau of Prisons has signed a contract with Securus Technologies to provide all BOP inmates with “corrections-grade tablets.”

Yeah, we’ve been here before. The BOP promised a tablet computer rollout four years ago. But this time (and I know better than to say this), maybe the BOP has it right.

The Bureau has selected Securus, which last year won a contract to replace all of the inmate tablets in the California prison system, as the vendor. The company said in a press release that it already “equips over 1,800 corrections agencies with 80-plus high-grade technology solutions to enhance public safety and optimize facility operations. Their offerings include secure communication, advanced monitoring, and the only corrections-grade Wi-Fi-enabled tablets…”

The tablets are not iPads, of course, but instead custom-built devices with limited features (such as no Internet connectivity). Still, they will to give prisoners access to a range of tools and resources that support reentry and communications with family. The devices will provide secure messaging and video services, and educational and rehabilitative programming.

The platform will also modernize many administrative and operational processes, “such as commissary ordering, request forms, program registrations and other routine workflows,” according to the BOP.

The rollout of the new tablet services will occur in phases across BOP institutions, the BOP said, with no schedule announced. The agency provided a similar phased rollout for the introduction of email, the electronic law library, and individual mp3 music players. The use of a vendor already involved in prison tablet placement and management suggests the rollout is for real.

To be sure, the BOP will benefit from the tablets as much as inmates will, with educational programming that can expand to reach all the people who need it, programs not limited by staff shortages, and paperwork reduction. And that’s not a bad thing. Any new program is likelier to succeed when everyone stands to gain from it. Additionally, reductions in the BOP’s workload may lead to greater responsiveness to legitimate inmate needs.

Not everyone is happy. The Luddites on the House Committee on Oversight and Government Reform, the Task Force on Defending Constitutional Rights and Exposing Institutional Abuses, and Subcommittee on Delivering on Government Efficiency announced in late May that they had opened a joint investigation into California’s prisoner digital table program, based on reporting by the conservative City Journal that purported to “expose” how some prisoners are exploiting state-issued tablets to sexually exploit women and minors from their jail cells. The City Journal based its revelations on “dozens of death-row inmates, who told us that prisoners in the state system use such devices to watch pornography and have explicit sexual conversations.”

In a letter to California Governor Gavin Newsom, the Republican chairs of those committees demand documents and communications “to inform the Committee’s oversight of federal criminal rehabilitation funding and whether federal funds were used to fund the state’s prisoner digital tablet program.” Oh, and to embarrass a blue state and its high-profile governor…

The tablets lack Internet connectivity, making the likelihood that the allegations are true suspect.

Writing in Forbes last week, Walter Pavlo suggested that the biggest beneficiary of the tablet rollout may be First Step Act programming. He said:

Rather than relying exclusively on classroom instruction, educational content can now be delivered directly to each inmate regardless of whether the institution is operating normally or under restricted movement. Academic courses, literacy instruction, vocational education and evidence-based programming can continue even when inmates are confined to their housing units.

This is particularly significant because Congress has increasingly emphasized evidence-based programming through legislation such as the First Step Act. The law encourages inmates to complete productive activities and recidivism reduction programs, yet prisons have often struggled to provide enough classroom space and instructors to meet demand.

According to Securus, the introduction of tablets in state facilities has been shown to reduce inmate rule infractions by over 20% and make use of contraband cellphones less attractive.

Correctional News, Federal Bureau of Prisons Awards Tablet Contract as Part of Broader Modernization Push (July 10, 2026)

Forbes, Federal Bureau Of Prisons Rolling Out E-Tablets (July 9, 2026)

BOP, Federal Bureau of Prisons Awards Transformational Inmate Tablet Contract to Modernize Communication, Education and Rehabilitation Services (July 8, 2026)

Business Wire, Federal Bureau of Prisons Selects Securus Technologies to Deliver Communications and Digital Infrastructure Nationwide (July 10, 2026)

~ Thomas L. Root

Trump Picks Two for Sentencing Commission – Update for July 10, 2026

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TRUMP NOMINATES TWO FOR SENTENCING COMMISSION

President Trump last week announced the nominations of US District Judge John Cronan (Southern District of New York) and Jason Manion to the US Sentencing Commission.

The Commission has been short two commissioners for 18 months, and the impending loss of two more at the end of this year would have prevented the USSC from taking any action.

Judge Cronan, appointed to the bench by Trump in 2019, spent his career in the DOJ, ending up as Acting Attorney General for the Criminal Division. Jason Manion is General Counsel and Senior Advisor to the White House Task Force to Eliminate Fraud. He previously served as Counselor to the Attorney General and was an Assistant US Attorney for the Northern District of Ohio.

Because of additional looming vacancies, four new commissioners would have to be confirmed by the US Senate to bring the Commission to full strength. However, even approving these two before the end of this year would allow the Commission to continue functioning. Whether the Senate sees this as sufficiently important to act – unlike in Trump’s first term, when the nomination of Judge Henry Hudson withered on the vine (a fate that appointment richly deserved) is unclear.

Truth Social, Nomination of Jason Manion to USSC (June 29, 2026)

Truth Social, Nomination of John Cronan to USSC (June 29, 2026)

~ Thomas L. Root

Another Lucy Football for Clemency – Update for July 9, 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.

250 PARDONS RUMOR ENDS NOT WITH A BANG BUT A WHIMPER

Remember the Wall Street Journal’s mid-May report that White House officials were considering a plan for President Trump to issue 250 pardons by July 4th to commemorate the USA’s 250th birthday?

The rumor was that the clemency action might happen on June 14th – Flag Day and Trump’s birthday – or on Independence Day. The buzz was amplified by an Atlantic Magazine article last week, which reported that “the White House is discussing a possible announcement of presidential pardons as a centerpiece of the nation’s semiquincentennial celebrations over the Fourth of July weekend, according to 14 people familiar with the conversations. The idea has been described as ‘250 pardons for 250 years,’ an initiative that would put one of the most politically fraught constitutional powers at the forefront of the country’s birthday festivities.”

White House Pardon czar Alice Marie Johnson was said to be behind the initiative.

However, Trump’s 80th birthday came and went. Finally, on Friday, Trump announced his clemency list of 11 people, nine of whom had been convicted of tinkering with diesel emission controls on trucks. Another was a former lobbyist convicted of fraud who, since his release, had donated millions to Republican causes.

No people convicted of drug, gun or sex offenses made the cut.

While The Atlantic and the Wall Street Journal had warned that Trump had not signed off on the “250 for 250” deal, the mere rumor sparked a frenzy among federal prisoners to petition for clemency (or update what was already on file). This predictable result occurred despite law professor and clemency expert Mark Osler warning in April that the Dept of Justice Office of Pardon Attorney is ‘a zombie office, in the sense that they’re assigning numbers to cases that come in, but it’s not clear that anything’s happening beyond that.”

According to a report issued by Congresswoman Ayanna Pressley (D-MA) last December, less than 1% of Trump’s 1,700 pardons and commutations came through the OPA.

The Atlantic, The White House Considers Granting 250 Pardons for the Nation’s Birthday (June 29, 2026)

Wall Street Journal, White House Explores 250 Pardons to Mark America’s 250th Birthday (May 13, 2026)

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

Ayanna Pressley, Trump’s Clemency Gap: How Trump’s Pardons are Ignoring the People Who Need Them the Most (December 15, 2025)

~ Thomas L. Root

SIS Lieutenant Meets the Enemy… In the Mirror – Update for July 7, 2026

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THE UNTOUCHABLES

The poet Juvenal once asked, “Quis custodiet ipsos custodes?”  Who will guard the guards themselves?

Inside the Federal Bureau of Prisons, the answer is the agency’s Special Investigation Service (SIS). SIS investigates both inmates and staff for everything from violations of the rules to criminal misconduct.

But that answer begs the next question. Who will guard the guards who are guarding the guards?

Prisoners tire of ever-increasing limitations on visitors, changes in mail delivery, more frequent shakedowns, all in the name of cutting down on contraband drugs, tobacco, cellphones and the like in the facility. Largely, they don’t think that contraband should be allowed but rather they bridle because the restrictive measures are punitive while ignoring the 9,000-lb elephant in the room, that is, the flow of contraband into prisons by staff.

Recently, the Denver Post reported that SIS Lt. Michael Popma, who works at FCC Florence, has been indicted on charges of conspiracy, bribery, providing contraband in prison and unlawful interception of oral communication. Lt. Popma, whom the Post said “was still employed as a lieutenant” as of last week, is accused of being paid more than $15,000 by an inmate’s family to “smuggle 123 cell phones, 415 electronic nicotine vaporizers and 274 bottles of alcohol into the prison,” according to the indictment.

Popma was hired at Florence in 2014 as a correctional officer and became a lieutenant in 2021. A BOP spokesman told the Post that while the agency “does not discuss potential allegations of staff misconduct or comment on matters that are the subject of legal proceedings… we generally can tell you that the Bureau of Prisons takes our duty seriously to protect the individuals entrusted to our custody as well as maintain the safety of correctional staff and the community.”

Popma, of course, is legally presumed innocent until proven otherwise, just as everyone who is now an inmate once was.

Denver Post, Colorado federal prison employee accused of smuggling cellphones, vapes into facility (June 23, 2026)

Indictment, United States v. Popma, Case No. 26-cr-130 (Doc. 1) (D.Colo, June 2, 2026)

~ Thomas L. Root

‘Fencing’ With the 4th Amendment – Update for July 6, 2026

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SCOTUS SAYS GEOFENCING IS A 4TH AMENDMENT SEARCH

The Supreme Court last week issued its final criminal decision of the current term (called the “October 2025 term,” because that’s when it started), holding that a “geofence warrant” is a “search” under the 4th Amendment and thus cannot be performed without a warrant.

A geofence search is an electronic method for the government to identify who was within a “geofence,” a defined physical area, during a specific period. It is a type of reverse search, used to identify a suspect when none is known, without the data gathered by the warrant. The government defines a limit, such as a half-mile circle from a jewelry store and then issues a demand that companies like Google produce information about cellphones pinging with their technology within a certain area within a particular time period. If three jewelers were robbed over three weeks, a “geofence” warrant for each area fr each of them will identify which cellphones were nearby during the time of each robbery.

The technique really narrows the number of suspects but also sweeps up location data for thousands of people unconnected to the event being investigated.

Opponents of geofencing argue that the potential for the government to misuse the data, to identify people participating in a protest against ICE, for example, is too great. The government argues that it may gather geofencing data without the need for a search warrant at all.

In Chatrie v. United States, the geofence warrant at issue sent to Google demanded that the tech company search the location histories of every one of its users in order to determine which ones were present in the vicinity of a bank robbery. That information ultimately led to the arrest of Okello Chatrie.

Okello argued that the geofence warrant was insufficient, that it amounted to “an unconstitutional general warrant [that] compelled Google to conduct a fishing expedition through millions of Google accounts, without any basis for believing that any one of them would contain incriminating evidence.”

Writing for a 6-3 majority, Justice Elena Kagan agreed. “The police conducted a search when they gained access to Location History data,” Kagan wrote. “An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company.”

Justice Neil Gorsuch agreed that Chatrie deserved to win but on the grounds that his “location history data qualifies as his personal property” protected warrantless search by the 4th Amendment.

Chatrie’s impact is uncertain. University of Pennsylvania law professor Michael Levy wrote last week that “[t]here are other geofence cases around the country, including one from a different federal court of appeals, one from Pennsylvania, and one from Colorado. In every one of them, the police had obtained a search warrant. Police and prosecutors have recognized the requirement for a warrant. Questions such as what the government must show to get such a search warrant, and how large the geofence can be, how long the time interval can be will have to wait for another day.”

Chatrie v. United States, Case No. 25-112, 2026 US LEXIS 2878 (June 29, 2026)

~ Thomas L. Root

Federal Prisons to Close! (Well, Only Some of Them) – Update for July 2, 2026

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BOP RETRENCHMENT ANNOUNCED

The Federal Bureau of Prisons said yesterday that it will close at least six prisons, citing “extreme staffing challenges” and crumbling facilities (leaving something like 113 still running in the system).

The announcement represents the most ambitious plan yet to address both the staffing crisis and the need to clean up years of maintenance neglect. The New York Times calls the closure “the most expansive effort to shut down or consolidate federal prisons in response to funding shortages.” Ironically, BOP Director William K. Marshall III announced the plan three days short of the first anniversary of the signing of President Trump’s One Big Beautiful Bill Act last July 4th, which gave the BOP a $5 billion one-time infusion to add to staff and fix prisons that are falling apart.

The prisons being closed are low-security facilities FCI Beaumont Low (and adjacent minimum-security camp), FCI Big Spring, and FCI La Tuna (all in Texas); FCI Petersburg Low (Virginia); and the already-shuttered FCI Taft, in the California desert north of Los Angeles (closed almost seven years ago). Additionally, the BOP will decommission the minimum-security satellite camp at the Federal Medical Center in Lexington, Kentucky. The highest-population facility affected by the closure announcement is FCI Beaumont Low, with 1,651 inmates in the low-security prison and another 514 in the adjacent camp.

The Agency also said it would change FPC Duluth and FCI Morgantown (both minimum-security facilities) to low-security facilities.

Staff freed from duties at the closed facilities in Beaumont, Petersburg and Lexington will be transferred to other co-located facilities. Some from Big Spring and La Tuna – each at least 250 miles from the next-closest BOP facility – will lose their jobs.

According to an unidentified official at the Council of Prison Locals, which served as the BOP employees’ union until the BOP cut ties with it about a year ago, the union had not been aware of the plan to close the facilities until yesterday’s announcement.

The BOP population swelled nearly tenfold between 1980 (about 25,000 prisoners) and over 219,000 in 2013. The Sentencing Reform Act of 1984, mandatory minimum sentencing laws, and the abolition of federal parole left the system severely overcrowded.

Due in large part to Attorney General Eric Holder’s Smart on Crime Initiative, a policy that reserved the harshest federal penalties for the most serious offenders while reducing the prosecution of some low-level, nonviolent drug cases and later to Trump’s First Step Act, the BOP population has fallen by 30 percent since then.

BOP inmates at the affected institutions only learned that they would be relocated soon to locations not disclosed to them. The closure of these facilities will require the transfer of nearly 4,000 inmates to institutions across the federal system.

Congress observed in the First Step Act that placing prisoners close to their families was not only humane but contributed to rehabilitation. Thus, 18 USC 3621(b) provides that the BOP

shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence…

Sadly, that provision has more holes than a Swiss cheese factory. Any minimally competent BOP facility designator can easily find an excuse – bed availability, population management, education or medical needs, and the undefined but expansive “other security concerns” – to place a Hawaiian in New Hampshire or a Floridian in California.

To top it off, § 3621(b) provides that “notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”

In other words, the provision is utterly toothless.

Writing in Forbes, Walter Pavlo observes that “[d]ecades of correctional research have consistently shown that maintaining family connections is one of the strongest predictors of successful reentry and lower rates of recidivism.”  Good luck with that. Pavlo notes that “[f]or thousands of inmates and their families, a prison closure is not just a change in address. It is a significant disruption to the stability they have worked to build while incarcerated.”

To be sure, Marshall has an unenviable task before him. The BOP has a potful of money for repairs over the next few years, but even that is insufficient for the more than $4 billion in maintenance needed. In announcing the closures, Marshall said, “We are a Bureau that acts. These actions are necessary to address longstanding infrastructure and staffing challenges while ensuring the Bureau remains focused on its core mission of operating safe, secure, and efficient correctional facilities. We will support our workforce throughout this transition and responsibly position the agency for the future.”

BOP, Federal Bureau of Prisons Announces Facility Closures and Operational Changes (July 1, 2026)

The New York Times, Bureau of Prisons Will Close Facilities Housing Thousands of Inmates (July 1, 2026)

Forbes, Bureau of Prisons Announces Multiple Facility Closings Citing Budget (July 1, 2026)

~ Thomas L. Root

A Kick In the Fundament for Felon-in-Possession? – Update for June 30, 2026

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READING IS FUNDAMENTAL. GUNS MAY BE, TOO.

The word “fundamental” is fundamental to a lot of what we do. But as a vulgar kid, I was delighted to find out that the root word here – fundament – also meant “buttocks” or even “anus.” What a hoot that was for me back in 7th grade, when such knowledge carried a lot of juvenile humor with it.

Buttocks aside, “fundamental” carries significant constitutional implication, and the Supreme Court’s deliberate and repeated use of it in last week’s Wolford v. Lopez decision was no accident. In Wolford, the high court held that Hawaii’s restrictive firearms-carry law – that made a person lawfully packing heat get permission from any private owner from a neighbor to a store owner before entering the property – violated the 2nd Amendment. While the holding seems to have nothing to do with felon-in-possession laws, it suggests that SCOTUS is slowly moving toward a decision that 18 USC § 922(g)(1) can be unconstitutional when applied to nonviolent felons.

Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman noted that the Wolford v Lopez opinion repeatedly referred to the right to possess a gun for self-defense as a “fundamental right” cited in District of Columbia v. Heller, the 2008 decision that is the great grandfather of modern 2nd Amendment jurisprudence.

Berman suggests the use of the term is no accident:

In this Wolford ruling (as well as last week’s Hemani ruling), the Justices are now acting and talking like the 2nd Amendment is to be regarded and safeguarded like other ‘fundamental Bill of Rights guarantees.’ But if that is true, I do not see how federal and state felon lifetime dispossession laws can be categorically upheld as consistent with the 2nd Amendment. I am unaware of any other fundamental constitutional right — or even fundamental common-law right such as the right of self-defense — that a person could forever lose on the basis of a prior conviction. Would anyone seriously claim that 1st Amendment protected activity, such as writing a book or going to church, could be permanently criminalized by governments if and whenever a person had a prior conviction? If that seems crazy under the 1st Amendment, it would seem modern doctrine also makes it crazy under the 2nd Amendment.

Berman called on SCOTUS to take[] up this issue and… explain what the “fundamental right recognized in Heller” fully means.

It’s not like the Court hasn’t had a chance to do so, as excellent vehicles like Vincent v. United States had been on the relist before whimpering to a certiorari denial.  But like the old Brooklyn Dodgers plaint put it (especially appropriate as the Supremes leave town this week for summer recess), “Just wait until next year…”

Maybe.

Wolford v. Lopez, Case No. 24-1046, 2026 U.S. LEXIS 2720 (June 25, 2026)

United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)

District of Columbia v. Heller, 554 U.S. 570 (2008)

Sentencing Law and Policy, If truly a “fundamental right,” how can lifetime felon bans on gun possession square with the 2nd Amendment? (June 25, 2026)

~ Thomas L. Root

Todd Blanche Slips One by Us – Update for June 29, 2026

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SLEEPER

It’s hardly ever news when the Federal Bureau of Prisons updates one of its program statements, those tributes to bureaucratese that govern everything that goes on in the BOP from designation to flag protocol to use of force against inmates to distribution of toilet paper. The agency has over 300 program statements posted on its website alone, and that list leaves out more than a few the Bureau really doesn’t want people to see.

Program statements are constantly being adopted, updated and changed. In the first half of this year, the BOP has tinkered with over a fifth of the program statements posted at BOP.gov. Few people notice. But one change – a real sleeper – was posted last month, and it took Elizabeth Oyer, the former pardon attorney now turned Internet DOJ critic, to catch the change and note its significance.

Program Statement 5100.08, entitled Inmate Security Designation and Custody Classification Manual, regulates how inmates are placed in the appropriate level of BOP facility, be it a minimum-security camp or the ADMAX at Florence or any of the 119 joints in the BOP system. It doesn’t matter who you are. All that matters is how you score on a well-defined matrix that measures everything from your offense and criminal history to your behavior inside to amount of time left to serve and over a dozen other factors.

And the exceptions to placement are well-regulated, too, by what are called “management variables.” A person with a sex-offender variable cannot be placed in a minimum-security camp. A camper needing a particular program or medical care only available at a low-security facility could receive a variable to permit placement at the higher-security prison. There are a lot of valid criticisms of Program Statement 5100.08, but it embodies the best of bureaucracy, what German sociologist Max Weber defines as “a form of general organization characterized by the majority of rules and procedures applied impersonally by specialized agents.”

No longer. In a change notice to P.S. 5100.08 issued in early May, the BOP recognized a new DOJ policy – adopted without fanfare – that gives the Attorney General the power to send any federal prisoner to any prison in the country. Nothing limits the AG’s discretion, not regulation, not the BOP, not P.S. 5100.08.

This change notice could be intended to blunt the firestorm of criticism flowing from Jeffrey Epstein confidante Ghislaine Maxwell, who was sent to a camp despite her sex offense conviction after she sat for an interview last year with Todd Blanche. In the interview, she denied that President Trump had engaged in sexual misconduct with women in Epstein’s orbit. A number of legislators have suggested that designation to a camp – contrary to P.S. 5100.08 policy – was a payoff for her favorable testimony.

The change that Liz Oyer cited last week would, after the fact, give Blanche the power to redesignate Maxwell regardless of BOP policy.  But the policy is a dangerous one. Oyer said the policy means that “[i]f you are facing a federal prison sentence, Todd Blanche has total discretion to decide where you’ll serve your time… Under this rule, Blanche could direct the Bureau of Prisons to put anyone who opposes the Trump Administration in a maximum security prison. if you’re prosecuted for protesting ICE, for example, or for vandalizing Trump’s Reflecting Pool, you could serve your sentence alongside murderers and rapists. Blanche could decide to put all of Trump’s enemies in maximum security prisons. He could put all Democrats in maximum security prisons. There are no limits no checks and no review of his decisions.”

The converse is equally problematic. “This policy permits preferential treatment for Trump’s allies,” Liz Oyer said. “If you’re MAGA, you might go to a minimum security camp, or if you’ve got a couple million bucks to spend, you could buy your way into a halfway house or even home detention. That’s exactly what’s happening with pardons under Donald Trump – the wealthy and the well-connected are paying for special treatment. There’s no reason to think the same thing won’t happen with prison placements.”

Section 3621(b) of Title 18 would seem to limit this kind of wanton designation-selling by directing that “there shall be no favoritism given to prisoners of high social or economic status.” The problem comes with the last line of the subsection:  “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” If there is no right of review – and the provision is pretty unambiguous on that score in depriving federal courts of subject-matter jurisdiction – then the AG can do as he or she pleases.

However, one interesting twist: If the AG can designate federal prisoners to whatever level, then the AG could designate someone to serve their entire sentences in a halfway house. What’s more, the AG could delegate the power to designate to a subordinate, such as a US Attorney who could then offer preferential designation as a benefit under plea agreements or cooperation agreements.

And it can all be done very quietly, no public announcement, no fanfare, just a phone call from Todd Blanche to the BOP.

Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification Manual (May 6, 2026)

Youtube, @Lawyeroyer (June 22, 2026)

~ Thomas L. Root

Paper Tiger – Update for June 25, 2026

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IS BIVENS CREAKING TOWARD AN IGNOMINIOUS END?

Two Supreme Court developments this past week do not bode well for the future of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

Bivens, in case you were busy doing something else in 1971 (I was graduating from high school), held that the Constitution implied that people have a private right of action against federal agents, employees, and officials for violations of their rights. A statute – 42 USC 1983 – created a federal right to sue state agents for such violations, but nothing created a similar right where federal employees or agents ran roughshod over your rights.

Bivens arose when federal drug agents kicked down Webster Bivens’ front door searching for drugs. They arrested Web without a warrant, but the drug charges were dismissed by a magistrate judge.  Web sued the agents, alleging a violation of his 4th Amendment protection from unreasonable search and seizure. 

The government argued that the 4th Amendment does not provide a cause of action for damages but “merely… limit[s] the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power.”  Web Bivens argued that a cause of action could be inferred because constitutional protections would be meaningless without a way to seek a remedy for their violation.

Since the Supreme Court’s 1971 decision, it has upheld the concept of a Bivens action only two other times, once for sex discrimination in a federal employment setting (Davis v. Passman (1979) and once for violation of the 8thAmendment by deliberate indifference to prisoner medical care (Carlson v. Green (1980)). Since 1980, Bivens has been on a long, slow march to irrelevance. Under Ziglar v. Abbasi (2017) and Egbert v. Boule (2022), any claim that is not highly similar to the facts in Bivens (excessive force during arrest), Davis (sex discrimination in federal employment), or Carlson (inadequate care in prison) is a “new context” to which Bivens will not be extended if “there is any reason to think that Congress might be better equipped to create a damages remedy.”

And the Court always thinks that. On Tuesday, SCOTUS held that a Rastafarian prisoner whose dreadlocks were forcibly shaved by prison guards two weeks before his release – despite his showing the guards a court order saying that he was allowed to keep them – could not sue state employees for money.

Louisiana inmate Damon Landor sued under the Religious Land Use and Institutionalized Persons Act, a federal law that requires states to protect the religious rights of individuals in state institutions. Among other provisions, RLUIPA requires prison officials to reasonably accommodate prisoners’ religious beliefs.

In a 6-to-3 vote dividing the court along ideological lines, the majority said federal law did not allow the prisoner, Damon Landor, to sue individual guards in their private capacity for violations of the RLUIPA.

Justice Neil M. Gorsuch wrote the majority opinion, holding that there were limits to Congress’s power to attach strings to the federal money given to state institutions like the Louisiana prison where Damon was held.

Three justices dissented, warning that the court’s decision would leave few options for state prisoners whose religious rights were violated.

The decision is reminiscent of the apocryphal line attributed to President Andrew Jackson about a Supreme Court decision: “John Marshall has made his decision, now let him enforce it.”  While probably never said by Jackson, the point is a good one: a law without an enforcement mechanism is toothless.

Speaking of toothless…

Last Monday, the Supremes granted review in a case brought by a nurse facing a $3 million lawsuit over failing to provide medical care to a federal inmate, a case which promises to finally kill off the all-but-moribund Bivens.

Francis Nielsen, who worked at a federal prison in Honolulu, says a lower court incorrectly allowed the case to proceed by expanding precedent on when federal prison inmates can sue officials for deliberate indifference to their medical needs.

Inmate Kekai Watanabe suffered serious injuries when assaulted while in at Honolulu’s Federal Detention Center in 2021. Watanabe said in his lawsuit that he repeatedly requested treatment for severe injuries, but nurse Nielsen only told him to take over-the-counter medication for his pain.

In his petition for review, Nielsen argues that Watanabe should not have a right to sue under Bivens for his injuries. “Preserving what remains of Bivens does little good,” Nielsen wrote, arguing that the doctrine should be overturned. “Bivens is now little more than a ‘zombie.’ It offers only ‘false hope … invit[ing] still more ‘protracted litigation destined to yield nothing.’ And it disserves the interests of civil rights and ‘the public writ large because, absent [Bivens’] formal abrogation, Congress has no incentive to legislate in the space.’”

I cannot help but believe that SCOTUS sees the Nielsen case as the vehicle in which it can finally drive Bivens off a cliff. The New Republic agrees. On Tuesday, it said that Nielsen v. Watanabe “will give the court an opportunity to further narrow… Bivens claims…” The magazine reported:

Taken together, the justices’ position is that Bivens is unacceptable because it is Congress’s responsibility, not the courts’, to create federal causes of action. When Congress does create those claims, however, the justices’ position is that the courts must sharply narrow them through judicially created doctrines like qualified immunity. Judicial power can only make it harder, not easier, for people to hold accountable those officials who violate their constitutional rights.

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

Religious Land Use and Institutionalized Persons Act

New York Times, Supreme Court Bars Lawsuit After Prison Guards Shaved Inmate’s Dreadlocks (June 23, 2026)

Landor v. Louisiana Dep’t of Corrections & Public Safety, Case No. 23-1197, 2026 U.S. LEXIS 2717 (June 23, 2026)

Davis v Passman, 442 US 228 (1979)

Carlson v Green, 446 US 14 (1980)

Ziglar v. Abbasi, 582 US 120 (2017)

Egbert v. Boule, 596 U.S. 482 (2022)

Courthouse News Service, Supreme Court to review inmate lawsuit over untreated prison riot injury (June 22, 2026)

Nielsen v. Watanabe, Case No. 25-417 (certiorari granted, June 22, 2026)

~ Thonas L. Root

Defendants Waiving The Waiver – Update for June 23, 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.

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SCOTUS HOLDS APPELLATE WAIVERS AREN’T ALWAYS IRONCLAD

Just about the last thing any defendant is concerned with when signing a plea agreement with the federal government is the fine print in which she waives the right to appeal or file a post-conviction 28 USC § 2255 petition or a related motion. The agreed-upon sentence, Guideline factors, dismissed counts, and the US Attorney’s promise not to prosecute for anything else are the important questions. Technicalities like waiving appeal and collateral rights, restitution, supervised release… those provisions are usually just so much noise to a defendant who is negotiating away freedom while trying to minimize the pain.

The appellate and collateral attack waiver is not important.

Until it is.

That is, until the parties’ agreement that the Guideline sentence should be between 33-41 months runs into a judge who thinks the statutory maximum sentence of 20 years is more appropriate. The right to appeal such craziness then becomes vitally important. And that’s when the government waves the waiver at the court of appeals, demanding that your appeal be tossed because, after all, you agreed not to appeal.

In 2024, Munson Hunter III signed a plea deal to plead guilty to aiding and abetting wire fraud. The agreement included the standard appeal waiver. The government dismissed nine other counts as part of the package in exchange for Munson’s agreement to a 51-month sentence.

At sentencing, the court accepted the deal, imposing a 51-month sentence. However, concerned that Munson exhibited conduct that suggested some mental issues, the court added a condition that Munson get mental health treatment while on supervised release and take whatever meds the mental health provider prescribed.

Munson was uninterested in spending his supervised release in a drug-induced stupor and tried to appeal, claiming a 5thAmendment right not to be forced to take pills. The 5th Circuit ruled that his appeal waiver barred him from doing so.

Last week, the Supreme Court reversed the Circuit.  Writing for the majority, Justice Elena Kagan explained that “an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.”

The result was not a watershed moment.  After all, eight Circuits already recognize the “miscarriage of justice” exception. But the opinion is notable for the explanation of what constitutes a “miscarriage of justice,” which up to now has been largely an “I can’t define it, but I know it when I see it” standard.

The 8-1 opinion described “miscarriage of justice” as being where

the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can…The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.

Armed with this definition, a well-prepared defendant in many cases may be able to make a compelling showing to get around an appeal waiver. Expect that many cases will follow that include detailed arguments to set aside appeal and post-conviction waivers.

Hunter v. United States, Case No. 24-1063, 2026 US LEXIS 2558 (June 18, 2026)

~ Thomas L. Root