Our House Was A Very, Very, Very Fine House – Update for October 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.

IDIOCY IS NO DEFENSE

I once had a police detective friend down in Virginia who swore that ‘FBI’ stood for ‘freaking bunch of idiots’.  (Well, not ‘freaking’ but you can fill that in). 

 The ‘idiot’ part was on display in an 11th Circuit decision last week that held that while the federal government is largely immune from a Georgia family’s lawsuit over a misdirected FBI raid at their home, the agent who led the raid was incompetent and may have violated their constitutional rights.

In 2015, the FBI launched Operation Red Tape (aptly named for a stodgy bureaucracy) to address violent gang activity in Georgia. Eleven years ago this week, the Operation resulted in a 30-defendant indictment. One of the unfortunate defendant was Joe Riley.

The SWAT team, which loved kicking down doors, secured a search warrant for Joe’s house, located at 3741 Landau Lane. Hilliard Cliatt, his then-fiancé Curtrina Martin and her seven-year-old son, lived in a nearby house, down the street and around the corner from Joe. Hilliard’s house was a very fine house… until the FBI got done with it.

When FBI Agent Lawrence “Wrong Way” Guerra led the SWAT team on its predawn raid to nab Joe, he missed, smashing through Hilliard’s front door, detonating a flash-bang grenade, holding the occupants at gunpoint, terrorizing the boy, and tossing the place. Unsurprisingly, Lawrence ignored Hilliard’s protestations of innocence until another officer stumbled across some mail with the residence address on it and realized the team had the wrong house.

When the dust settled, Hilliard, his fiancé and her son all sued Lawrence and the Bureau. A district court found the agents were not immune from suit, the 11th Circuit reversed, finding they were.  The Supreme Court sent the case back.

Last week, the 11th reversed the qualified immunity granted to Lawrence, noting the geographical and physical differences between Hilliard’s residence and the one listed in the FBI’s search warrant were so stark that the agent’s “conduct in verifying the address to be raided was simply not consistent with a reasonable effort to ascertain and identify the place intended to be searched.”

The two homes were three houses away from one another, on opposite sides of the road and separated by a cross street. Plus, street signs clearly marked the intersection as not being the street where the target home was located. Only an idiot would have driven by in the daylight the day before and still gotten it wrong.

But, the Circuit hinted, Lawrence was just the idiot to pull it off. “[A] reasonable jury could fairly conclude that Agent Guerra failed to engage in reasonable efforts to avoid error, and, therefore, violated the plaintiffs’ constitutional rights,” the Court wrote. “Such plain incompetence has clearly violated the 4th Amendment since at least 1995 when we decided this materially similar precedent.”

The decision was a mixed bag. The Circuit upheld the district court’s holding that the government was immune because a drug raid is a ‘discretionary function’ exception to the Federal Tort Claims Act. But the Court’s decision is noteworthy in that it recognized that some negligence – picking the wrong house with the wrong address on the wrong street – is too extreme to permit a grant of qualified immunity to the agent who was in charge of the raid.

Martin v. United States, Case No. 23-10062, 2026 U.S. App. LEXIS 30717 (11th Cir., October 7, 2026)

~ Thomas L. Root

More than One Way to Skin a Union Cat – Update for October 15, 2026

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BOP SAYS, ‘TAKE THAT, DISTRICT COURT!’ ON UNION CANCELLATION

Three weeks ago, U.S. District Judge Vernon D. Oliver (D. Conn,) ordered the BOP to immediately restore union protection for more than 30,000 employees who lost it after the BOP unilaterally ended the Council of Prison Locals 33’s collective bargaining agreement a year ago.

Two weeks ago, the union asked Judge Oliver to hold the BOP and Director William K. Marshall III in contempt for failing to comply with the preliminary injunction. The next day, Marshall rescinded the AFGE contract cancellation notice but immediately issued a new notice that the contract had been re-terminated for different reasons and then said the agency no longer needs to honor the injunction.

“The court’s order was based solely on the conclusion that bureau leadership had issued inconsistent rationales for terminating the CBA; that order does not preclude the bureau from issuing a new termination decision after reconsidering the basis for that action,” Marshall’s October 7th memorandum to the union states. “Neither the court nor the union has indicated any disagreement regarding the agency’s ability to re-terminate the CBA in a new decision.”

The union is not happy. “It’s absurd and shameful that this administration would stoop so low as to flout the rule of law inside our own federal prisons just to silence the voices of the brave correctional officers who work every day in some of the most challenging environments in the country,” AFGE National President Everett Kelley said in a statement.

We would caution the kids at home not to try this: it’s the kind of in-your-face contempt that would probably result in indictment for private citizens.

Federal News Network, BOP re-terminates union contract, days after being ordered to restore it (October 7, 2026)

AFGE News, Bureau of Prisons Terminates Union Contract Despite Court Order Mandating Reinstatement (October 13, 2026)

~ Thomas L. Root

First Week at the Supreme Court: Guns, Gender and Guidelines – Update for October 13, 2026

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SCOTUS GETS BACK TO WORK

This year’s Supreme Court term (known in judicial speak as “October Term 2026”) began last week with some interesting, if below-the-radar, developments.

Felon-in-Possession: Last spring, the 5th Circuit declared 18 USC § 922(g)(1) – the felon-in-possession statute – unconstitutional as applied to a defendant whose only prior felony was a state simple drug possession conviction. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibited from owning guns.

The government – which usually gets its way when it wants Supreme Court review – asked SCOTUS to take up the case but hold it until it could apply its ruling in United States v. Hemani, last June’s holding that 18 USC § 922(g)(3) – the subsection that bars “habitual” drug users from having guns – violates the 2nd Amendment as applied to a Texas man who said that he smoked marijuana a few times a week.

The Hemani decision noted that it did not address the federal law “disarming individuals convicted of felonies (often including drug-related ones.”  After Hemani, Defendant Hembree urged the justices to leave the 5th Circuit’s ruling in place. “The decision in Hemani does not affect the outcome here,” he wrote in his response to the Government petition for certiorari, because it “says nothing about nonviolent felons being categorically and permanently disarmed.”

Last week, the Supremes agreed, denying the government review of the 5th Circuit decision. This means that the 5thCircuit joins the 3rd (Range v. Attorney General) and the 6th (United States v. Williams, sort of) in holding that § 922(g)(1) can violate the 2nd Amendment as applied to some people whose prior felonies don’t show dangerousness.

United States v. Hembree, 165 F.4th 909 (5th Cir. 2026)

United States v. Hembree, Case No. 25-1219 (Cert denied, October 5, 2026)

Do The Notes Count? For everyone who ever wondered whether you have to read the footnotes, the Supreme Court will reconsider the 30-year-old Stinson v. United States holding that courts must follow Sentencing Commission commentary that interprets or explains a Guideline “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Stinson made a lot of sense back when courts were required to follow the Guidelines and the Chevron doctrine directed courts to defer to agency interpretation of statutes. But in 2019, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in Kisor v. Wilkie that courts must defer to an agency’s interpretation of its regulations only where the regulation is genuinely ambiguous on the question at issue.

In Beaird v. United States, the Supreme Court will consider whether Stinson still correctly captures the deference that courts must give to the Guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.

The Beaird defendant claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful gun possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”

The sentencing Guideline applies an enhancement where the firearm has a “large-capacity magazine,” but exactly how large a magazine must be to ne “large capacity” is only defined in the commentary as a “magazine or similar device that could accept more than 15 rounds of ammunition.” That definition sweeps in just about any double-stack auto pistol on the market, including five of the most popular Glocks, Sigs, Smith & Wessons and HKs.

The defendant argues that the commentary, which unlike the guideline itself is not approved by Congress, improperly expands the scope of the guideline. That guideline, he contends, was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)

BOP Transgender Policy: Lawyers for Bureau of Prisons transgender inmates urged the Supreme Court on Thursday to leave in place a court order that bars the BOP from enforcing a new policy on healthcare that would prevent transgender inmates from obtaining hormone therapy and “social accommodations” (such as makeup, wigs, and padding).

The BOP adopted the policy earlier this year, following President Trump’s February 2025 executive order directing the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

Three transgender inmates then went to federal court in Washington, DC, to block the enforcement of the policy. On August 26, Senior US District Judge Royce Lamberth issued an order barring the BOP from implementing the policy, and on September 18, the DC Circuit refused to reverse the order. On September 28, BOP went to the Supreme Court to ask that the order be blocked, complaining that the district court had “substitut[ed] its own policy judgment” for the BOP, “rel[ied] on evidence outside the administrative record… fault[ed] the agency for following presidential directions… [and] denied prison administrators the substantial deference they are due.”

The issue of the temporary order, on the SCOTUS “emergency” docket, will probably be decided next week. Ultimately, a decision on the merits of the underlying case could not just affect transgender inmates but define how much deference courts have to give “prison administrators.”

Trump v. Kingdom, Case No. 26A-416 (application for stay filed September 28, 2026)

~ Thomas L. Root

Small Religious Rights Victory for Prisoner – Update for October 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.

MUSLIM WOMAN’S SUIT AGAINST BOP GOES FORWARD

Aleah Mohammed was arrested for healthcare fraud. A devout Muslim woman, she always wore a hijab, the traditional scarf that covered a Muslim woman’s hair, neck and chest. Her faith prohibited her from being in the presence of strange men without wearing it or letting herself be photographed without wearing the hijab.

That, of course, didn’t work well with the BOP, which removed her hijab for the photo that went into her central file and onto her inmate ID.  Even after her release, Aleah’s probation officer could access the photo in her supervised release file.

Over a year ago, Aleah sued in the Eastern District of New York under the Religious Freedom Restoration Act. The government moved to have the suit dismissed, arguing that because Aleah had been released, she no longer had standing to enjoin the BOP from photographing her without her hijab, and she lacked standing to get an injunction against the BOP doing it to someone else. Last week, the EDNY denied the government’s motion to dismiss:

The Court is unconvinced that, as Defendants argue, because Aleah is no longer incarcerated, the injunctive and declaratory relief she seeks is entirely prospective. Despite her release, Aleah has clearly alleged that BOP continues to use her uncovered photographs and that the use of the uncovered photographs continues to cause her great emotional distress. Said another way, Defendants continue to take actions to this day that injure Aleah. Indeed, a comparison to Shain v. Ellison, 356 F.3d 211 (2d Cir. 2004), which Defendants cite to as support for their argument, only underscores the ongoing nature of Aleah’s injuries. In Shain, the Second Circuit found that plaintiff failed to establish standing because he failed to show a likelihood of a future encounter with the Nassau County police that would result in an unconstitutional strip search… Aleah, on the other hand, has alleged a continuous injury that she experiences to this day. For example, Aleah alleges that her male probation officer uses an uncovered photograph of [her] during Aleah’s monthly meetings. Indeed, Plaintiff has even seen her uncovered BOP photo in use by a hospital which seemingly has no connection to BOP.

Aleah still has a long way to go to win the case, and any remedy she gets will be limited to her. But a win under the RFRA for any prisoner strengthens the Act’s protection for everyone from Baptists to Buddhists to sweat lodge users to Seventh Day Adventists.

Aleah Mohammed v. Lothrop, Case No. 22-cv-1832, 2026 U.S. Dist. LEXIS 224684 (E.D.N.Y. September 30, 2026)

~ Thomas L. Root

BOP Seeks SCOTUS Stay on Transgender Order – Update for October 8, 2026

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BOP TAKES TRANSGENDER POLICY INJUNCTION TO SUPREME COURT

The Trump Administration last week asked the Supreme Court to lift a lower court order blocking the BOP from imposing new restrictions on health care for transgender inmates.

The petition cited security concerns to justify its intervention. “In nullifying BOP’s exercise of its statutorily conferred authority to adopt a policy that prison administrators have determined is necessary to maintain institutional security, the court’s order causes irreparable harm to the government and to the public,” the petition said.

Three transgender inmates sought to file a class action lawsuit in federal court in Washington, D.C. The case has a complicated procedural history, but Senior U.S. District Judge Royce Lamberth issued the most recent order barring the BOP from implementing its 2026 policy on Aug. 26, and a divided panel of the US Court of Appeals for the DC  Circuit turned down the government’s request to pause Lamberth’s order.

The new policy adopted by the BOP would prohibit transgender inmates from obtaining gender-transition surgeries, hormone therapy, and “social accommodations” (such as makeup, wigs, and padding). Courts have blocked the implementation of the new rules in part because the administration had no evidence that such treatments had ever caused security concerns.

The BOP, however, is arguing that the courts should have deferred to its experience and expertise in finding that security and prison administration concerns independently justified the 2026 policy, which departed from prior rules permitting such treatments.

“Considerations of ‘institutional security’ are ‘peculiarly within the province and professional expertise of corrections officials’,” the BOP argued, “and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.”

A response by Respondent Alishea Sophia Kingdom is due by 4 pm today, October 8.

Upon retaking office in January 2025, Trump immediately issued an anti-transgender executive order claiming to restore “biological truth to the federal government.” The BOP subsequently issued a memorandum prohibiting requests for underwear that do not align with an inmate’s sex assigned at birth and barring funds for any medical procedure, treatment or drug intended to make an inmate’s appearance conform to a different gender identity than the one the inmate was born with.

Courthouse News Service, Trump taps SCOTUS in bid to block gender-affirming care for transgender inmates (September 28, 2026)

SCOTUSBlog, Trump administration asks justices to block lower court order on transgender inmate policy (September 28, 2026)

~ Thomas L. Root

There’s Power in 5G1.3 – Update for October 6, 2026

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POWER 5(G1.3)

We’re in the middle of a messy college football season, and we all know who the Power Five used to be.  They’re now just the Power Four, but I’m old school, and I need “Power Five” as a hook for today’s post.

In the sentencing world, Sentencing Guideline 5G1.3 is a powerful if sleepy Guideline, one that delivers sentencing authority and flexibility to a district court to which many judges seem oblivious.

It often happens that defendants will be charged with state offenses and later federal offenses arising from the same incident. I one chad a guy who picked up four Arkansas convictions for methamphetamine possession.  After he started serving his state sentences, federal authorities charged him in a meth conspiracy that swept in all of the conduct that underlay the state convictions.

By the time he got to federal sentencing, he had served 72 months for his state offenses. However, under federal sentencing statutes and the Guidelines, none of that state time would otherwise count against his federal sentence obligation.

That’s where § 5G1.3 comes in, permitting a federal court to adjust the federal sentence to account for prior state time served in a related case.

In the case I was working on, the judge incorrectly said that he couldn’t adjust anything in the 144-month sentence he imposed to account for the time the defendant had already served.  The mysteries of § 5G1.3 were beyond him.

The same thing happened to David Koan. David pled guilty to a child pornography charge. By the time his federal sentencing came around, he had already spent 40 months in state prison for a conviction arising from the same incident.

At sentencing, defense counsel asked the court to adjust David’s sentence to account for the time he had already done in the state. The district court refused, holding that it lacked the ability to do so. The judge told David to take his request up with BOP (probably knowing how futile that exercise would turn out).

David got a federal sentence of 720 months to run concurrently with his state sentence yet to be served (but he got no credit for time already served).

David appealed, and last week the 5th Circuit reversed his sentence.

Guideline 5G1.3(b) directs that “the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment…”  After the district court stated that it did not have the power to award credit for time served, David’s lawyer responded that the court could either “backdate” or “adjust the sentence accordingly” to account for the time served. The Circuit said that this suggestion was good enough to preserve the objection.

While a district court cannot award credit for time served under 18 USC § 3585(b), it nevertheless “retains residual authority to reduce defendants’ sentences based on previous time served related to their offenses… That is, § 5G1.3(b) permits a court to adjust a sentence if the defendant has served time on a certain undischarged (i.e., incomplete) term of imprisonment as long as the time previously served must have “resulted from another offense that is relevant conduct to the instant offense,” and the previous time served “will not be credited to the federal sentence by the Bureau of Prisons… When those two criteria are met, § 5G1.3(b) instructs the court to reduce the sentence for time served and impose the sentence to run concurrently to the remainder of the undischarged term.”

The 5th said that “in sum, § 3585(b) governs the calculation of credit for time spent in custody prior to sentencing, which can be awarded exclusively by the Bureau of Prisons after sentencing, whereas § 5G1.3(b) governs sentence adjustments applied by a federal judge at the time of sentencing to account for time served on a related, undischarged term of imprisonment. Here, the district court erred when it seemingly conflated the two.”

United States v. Koan, Case No. 25-10850, 2026 U.S.App. LEXIS 30283 (5th Cir., October 2, 2026)

~ Thomas L. Root

BOP Is “Union Strong” Again – Update for October 5, 2026

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COURT ORDERS BOP TO REINSTATE 30,000-MEMBER EMPLOYEE UNION

US District Judge Vernon D. Oliver (D. Conn.) last week ordered the Federal Bureau of Prisons to immediately restore union protections for more than 30,000 employees after the BOP unilaterally ended the Council of Prison Locals 33’s collective bargaining agreement a year ago.

In March 2025, President Trump issued an executive order that sought to exclude federal offices involved in national security or intelligence work from having collective bargaining agreements with staff. That order also applies to the Justice Department, which includes the Bureau of Prisons.

The BOP did not terminate CPL-33’s agreement until September 25, 2025. Now, a year later, Judge Oliver has held that BOP Director William K. Marshall III’s decision to cancel the union contract was arbitrary and that his stated reasons were contrived and pretextual.

In the termination letter Marshall sent a year ago to CPL-33 President Brandy Moore White, he cited President Trump’s Executive Order 14251, an edict that banned unions in areas involving national security (which included the BOP) as the reason for the termination, “But that same day,” the Order said, “Director Marshall posted his message that heavily criticized CPL-33’s operations and stated that the ‘whole purpose of ending this contract’ was because the ‘union [was] an obstacle to progress’ and ‘the current contract has too often slowed or prevented changes.’ The letter did not state that EO 14,251 required the termination of the CBA. Nor did it mention the national security rationale underlying the Executive Order. Instead, it only cited to [Marshall’s] criticisms of the union. Although an agency may have multiple reasons for its action, it cannot offer an entirely pretextual explanation that is undermined by its own contradictory assertions made the same day.”

CPL-33 President White said in a statement that she was looking forward to the BOP “promptly complying” with Judge Oliver’s order. The BOP did not immediately respond to a New York Times request for comment.

The ruling is a blow to Trump’s effort to strip hundreds of thousands of federal workers of union protections.

Judge Oliver, whose preliminary injunction will stand until the case is litigated, hinted at “multiple” other problems with the BOP’s termination, but held that addressing them now is premature. The ruling does not hold that BOP management cannot change its policies or working conditions, nor does it determine whether Trump’s broader executive order eliminating collective bargaining requirements at certain federal agencies is lawful.

Instead, it addresses a fundamental 5th Amendment due process precept about government decision-making, which is when a federal agency takes consequential action, the reason it provides for doing so is significant.

Marshall wanted the BOP to embrace real change faster than he could make CPL-33 move. His September 2025 message made his frustration (and intention to cut the Gordian knot) clear. Now, one year later, a federal judge has ordered the agency to bring the union back to the table.

The NY Times, Federal Judge Orders Bureau of Prisons to Restore Union Protections (September 30, 2025)

Memorandum and Order,  National Council of Prison Locals v BOP (September 26, 2026)

Forbes, Judge Orders Bureau of Prisons to Reinstate Collective Bargaining (September 30, 2026)

CBS News, Judge orders Bureau of Prisons to restore its union’s collective bargaining agreement (September 29, 2026)

~ Thomas L. Root

Not Thinking About A Big White Bear – Update for October 2, 2026

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REVOCATION SENTENCE IS REASONABLE BUT UNRELIABLE

For not the first time, a sentencing decision has reminded me of Fyodor Dostoevsky’s big white bear.

In his Winter Notes on Summer Impressions, an 1863 account of travels in Western Europe, Dostoevsky recounted a childhood club he and his brother formed had as its initiation ritual the requirement that the aspirant to membership stand in the corner for five minutes and not think about a big white bear.

Hassan-Nur Mohamed faced deportation to Somalia when he was released from federal prison in 2013. But deportation was kinder and gentler back then, so he was put on supervised release while his immigration case was pending. But just before his supervised release term expired, he learned that he was about to be deported, so he fled to Canada and sought asylum there.

His probation officer filed a violation for leaving the jurisdiction without permission.

In 2025, Hassan decided to sneak back into the United States (perhaps unaware of how fussy ICE had gotten about people like him). He was convicted of aggravated reentry.  At his revocation hearing, the district court counted Hassan’s aggravated reentry conviction as an additional supervised release violation (commission of a new crime), which would make Hassan’s guidelines range 4-10 months instead of the lower 3-9 months, which would have applied if the absconding violation were the only count against him.

At the time, Rico v. United States was pending in the Supreme Court. Recognizing that the Rico court could rule that absconding did not stop the supervised release term from expiring, Hassan’s judge said that while he was counting the aggravated reentry violation, he would only give Hassan 9 months, so that if Rico went against the government, the sentence would be within the lower guideline range.

Rico ultimately held that the Sentencing Reform Act of 1984 does not authorize an automatic extension of supervised release when an individual absconds.  This meant that Rico’s 2025 aggravated reentry conviction happened after his supervised release term ended,  a conclusion that applied equally to Hassan’s aggravated reentry violation.

On appeal, the 6th Circuit said the district clearly erred in counting the reentry conviction. The Government, however, argued ‘no harm no foul,’ because Hassan’s revocation sentence was within the range for the lower-level absconding violation. But the Circuit disagreed, holding that the Guidelines calculation was not merely academic:

While the district court stated “that this would be the appropriate sentence, whether this is a Grade B or a Grade C violation,” its only stated support for this conclusion was that “the violations are… serious.” And in considering the seriousness of ‘the violations,’ the district court included the April 5, 2025 re-entry and subsequent conviction.

But Mohamed’s 2025 conviction was not a supervised-release violation at all. Therefore, the passing statement that ‘this would be the appropriate sentence, whether this is a Grade B or a Grade C violation’ is not enough to overcome the need for confidence that, even without considering Mohamed’s new conviction to be a supervised-release violation at all, the district court would have imposed the same sentence… Although the ultimate sentence is reasonable, the district court did appear to consider Mohamed’s 2025 conviction a supervised-release violation and to consider that violation in determining his sentence. The Supreme Court has made it clear that this is an error… Even though the district court’s ultimate action appears a quite reasonable resolution given the uncertainty as to the future outcome in Rico, the error is not harmless even if it resulted in only a small difference in the sentencing range.

The District Court said it could sentence Hassan as if the big white bear were not in the room, even while acknowledging that it was. The 6th Circuit said that may work for Fyodor Dostoevsky’s club, but it doesn’t for supervised release revocation sentences.

United States v. Mohamed, Case No. 26-3017, 2026 U.S.App. LEXIS 28783 (6th Cir. September 18, 2026)

~ Thomas L. Root

Fill Out This Form (In Triplicate) – Update for October 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.

THE CURE FOR BUREAUCRACY IS… MORE BUREAUCRACY?

Writing in the early 1860s, political scientist John Stuart Mill theorized that bureaucracy is a distinct form of government that had certain advantages, the most important being the accumulation of experience in those who actually conduct the affairs. Nevertheless, he wrote that ultimately bureaucracy stifles the mind, and that “a bureaucracy always tends to become a pedantocracy,” that, a system run by people who “annoy others by overly focusing on minor details, trivial errors, and formal rules rather than common sense or the main point.”

The BOP’s management of its First Step Act obligations is hardly bureaucracy at its finest. A Dept of Justice Inspector General’s report issued last May found that the BOP wasted nearly all of the $400 million or so it was given in 2022 to implement the Act. It gave the Dept of Labor $120 million for a grant program the agencies were supposed to implement together, to award money to grantees who developed vocational and skills-building programs for inmates. After transferring the money, the BOP paid no attention to what was going on, with the result that the program proceeded at a snail’s pace.

A better example of BOP incompetence (although it has tinges of actual fraud) is that the Bureau decided, without authorization, to spend $250 million of the FSA budget to reimburse itself for free inmate phone calls offered during the pandemic. The icing on the cake: the money the BOP claimed for the free phone program was $100 more than what it actually cost the agency. The BOP has custody of white-collar inmates whose offenses pale by comparison.

The Inspector General found that underlaying a lot of the BOP’s problem was that unreliable data impaired the Bureau’s ability to determine whether the First Step Act was accomplishing its objectives or even to accurately communicate its implementation progress to Congress.

In July 2025, BOP Director William K. Marshall III established a First Step Act Task Force to address inmate complaints that FSA home-confinement paperwork was not being processed and staff complaints that the software systems they relied upon were not always displaying accurate dates. 

The Task Force was charged with manually identifying and correcting community-placement dates, moving eligible inmates to cheaper home confinement, manually calculating placement dates that combined FSA and Second Chance Act prerelease custody authority, and reviewing prisoners still inside institutions for additional community-placement opportunities. 

Writing in Forbes, Walter Pavlo said, “The Task Force was an intervention designed to solve immediate problems. The new First Step Act Office appears intended to make that intervention permanent.”

The office, starting with a staff of 15, will oversee the administration and calculation of FSA credits, implement programming, develop policy guidance and training materials nationwide, and manage resources and budget allocation for FSA initiatives.

Marshall told Spectrum News last week that the office will also provide answers about FSA and correcting issues with earned time credits and other program factors. Up to now, Marshall said, FSA Task Force staffers were working on FSA issues in addition to other responsibilities. “This is their main focus [now].”

Marshall acknowledged there are some issues that will take long-term planning to fix. “The lack of [halfway house] beds is… a real issue that we have to face,” Marshall explained. “We don’t control the RRC beds, and we don’t control those staffs – the procurement process takes too long. We’re working on the procurement process as far as trying to obtain some of these contracts and get some of these beds, but it does take a lot of money. It takes a lot of money to do those things, but that’s not the reason to not do it…so we still have to push through and get it done.”

The BOP is an agency that tends toward window dressing. Just last week, it trumpeted that its Program Review Division had been named the “Division of Compliance and Oversight (DCO)” and the Program Review Branch of the Program Review Division (did you follow that?) as the Internal Auditing Branch.  These new names, “effective immediately,” are intended “[t]o more accurately reflect” the offices’ mission,” the BOP said.

Like changing Twitter to “X.” Same messy service by a different name.

If inmates cannot easily bring FSA issues to the new office, which will be physically located in Washington DC and Grand Prairie, Texas, the First Step Act Office could just become another layer of underperforming bureaucracy.

BOP Office of Inspector General, Evaluation of the Federal Bureau of Prisons’ Use of First Step Act Funding and Implementation of First Step Act Programs at Its Institutions (Report 26-057, May 2026)

Forbes, Bureau of Prisons Creates Dedicated First Step Act Office (Sept 24, 2026)

Spectrum News, Bureau of Prisons launches First Step Act office (Sept 24, 2026)

BOP, Introducing the Division of Compliance and Oversight (Sept 22, 2026)

~ Thomas L. Root

Taking the ‘Early’ Out of ‘Early Termination’ – Update for September 29, 2026

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THE OFFICIALS RESET THE GAME CLOCK

Ever think you’ve finally gotten to a win, only for some mook to put a second back on the clock? 

It happened to Western Michigan a few weeks ago in Ann Arbor, letting the Wolverines steal an improbable victory from a team that was supposed to be a cupcake for the mighty U-M football machine.

It doesn’t just happen in the NCAA (which, by the way, admitted its error and said it wouldn’t happen again). It happened last week to Jose Santana-Robles. After Jose did his five years on a drug beef, he began 60 months of supervised release. Jose had a little trouble adjusting to supervised release: the 3rd Circuit said he “accumulated violations, including for testing positive for marijuana and leaving the jurisdiction without permission. In February 2024, the District Court issued a warrant for arrest for his violations. Over a year later, he was arrested in Oregon and was transported to Pennsylvania.”

Jose’s supervised release was revoked, and he was sent back to the BOP for 4 months, to be followed by another 24 months of supervised release. When he finished his 4 months in custody, he moved for early termination of the remainder of his supervised release term. His district judge declined.

Jose appealed. Last week, the 3rd Circuit held that he was not even eligible to ask for early termination, leaving alone the question of whether his judge was right to deny it.

Under 18 USC § 3583(e), defendants are eligible to ask the court to terminate the remainder of their term after serving one year of supervised release. The 3rd Circuit held, however, that Jose’s revocation reset the one-year clock. “The text, purpose, and history [of § 3583] all support the common sense reading that the one-year clock starts from the beginning of the current term of supervised release that a defendant may seek to terminate. Because Appellant filed his motion less than two months into his term of supervised release, his request was foreclosed by § 3583(e)(1) and the District Court did not have the authority to grant his request.”

Oh, Michigan fans… that final-second Iowa win last Saturday? Karma is a harsh mistress.

United States v. Santana-Robles, Case No. 26-1011, 2026 U.S.App.LEXIS 29233 (3d Cir., Sept 23, 2026)

~ Thomas L. Root