BOP Trumpets New Rule It Was Forced To Adopt – Update for September 21, 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.

MAKING A VIRTUE OUT OF FSA NECESSITY

The Bureau of Prisons has announced a change in 28 CFR § 523.42(a), effective September 30, 2026. The change makes an inmate eligible to earn First Step Act credits “after the inmate’s term of imprisonment commences.”  Currently, the rule says that eligibility begins on “the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served…”

This should be a small but welcome deal for FSA-eligible inmates, who on average spend 60 days from their sentencing date (when their BOP imprisonment begins) to the date they arrive at their prison. That 60 days will net them an additional 20 days of FSA credit.

Writing in Forbes, Walter Pavlo (whose work I admire) was effusive in his praise for the “significant” progress made in FSA implementation under BOP Director William Marshall III.

Marshall deserves kudos for advancing FSA implementation more than his predecessors, but praising him for this rule change makes a virtue of necessity.  

Pavlo notes in passing that “[t]he change followed a series of court decisions finding that the BOP’s previous regulation conflicted with the First Step Act. The BOP specifically cited decisions including Miles v. Bowers and Sharma v. Peters in explaining why it was removing the restriction….”

No fooling. It was almost two years ago that Sharma v. Peters depantsed the BOP’s § 523.41, which denied FSA credit to inmates while out on writ or in administrative detention (the SHU)  but not in disciplinary segregation. Last April, both the 1st Circuit and 4thCircuit ruled that the BOP’s rule denying FSA credits until arrival at the designated prison and completion of an initial review was contrary to the FSA. The Miles v. Bowers court ruled:

[T]he statutory obligation to provide prisoners “with the opportunity to actively participate in” EBRR programs during “their entire term of incarceration,” 18 USC § 3621(h)(6), is incompatible with the BOP’s claim that it can refuse to credit prisoners’ participation in programming that it later determines meets the prisoners’ “specific criminogenic needs” simply because that participation preceded the assessment that identifies those needs.

Pavlo argues that “[t]he BOP did something unusual and useful in announcing this change. It calculated the expected financial impact. The agency estimates that expanding the period during which prisoners can earn Time Credits will save approximately $54.1 million annually.”

In fact, the BOP – which only a few months ago was resisting cleaning up its rule – did what it had to do. It deserves no pats on the head for fighting the clear disconnect between its rule and the law for two years before finally surrendering to common sense and the courts.

Forbes, Bureau of Prisons Upgrades First Step Act With More Credits (Sept 18, 2026)

Federal Register, First Step Time Credits – Revision, 91 FR 55740 (Aug 31, 2026)

Miles v. Bowers, Case No. 25-1291, 2026 U.S. App. LEXIS 11998 (1st Cir. Apr 27, 2026)

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

~ Thomas L. Root

LISA Newsletter for September 21, 2026 – 5th Circuit En Banc Asks Whether  ‘Commerce Clause’ Attack Should Doom Felon-in-Possession    

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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.

FOCUS SHARPENS ON CONSEQUENTIAL 5TH CIRCUIT FELON-IN-POSSESSION EN BANC

You may remember the newsletter’s reporting on a 5th Circuit en banc proceeding over whether 18 USC § 922(g)(1) – the felon-in-possession statute – is unconstitutional, not under the 2nd Amendment but rather under the Commerce Clause.

All of the significant felon-in-possession litigation in the past few years has focused on whether the statute violates the 2nd Amendment as applied to nonviolent felons. This case, United States v. Squire, instead asks whether prohibiting people with prior felonies from possessing guns that traveled in interstate commerce violates the Commerce Clause.

In June, Curtis Squire, a convicted drug dealer, lost his argument that § 922(g)(1) was unconstitutional as applied to his situation, one in which a gun was found in his house. He argued that keeping a gun at home for defense was a right enshrined in American history, even for people who otherwise were prohibited by colonial law from carrying a firearm. For good measure, he also claimed the statute violated the 2nd Amendment on its face and was unconstitutional under the Commerce Clause.

The Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” Congress has often used the Commerce Clause to justify exercising power over the activities of states and their citizens, leading to significant controversy regarding the balance of power between the federal government and the states.

Section 922(g) only applies to guns and ammo that have traveled in interstate commerce, because without an interstate commerce nexus, federal law cannot limit the mere possession of a gun. That’s why § 922(g)(1) can’t prevent a convicted felon from building a gun at home. It’s why a § 922(g) prosecution always features testimony from some ATF agent that the gun at issue crossed state lines before falling into the defendant’s hands, and thus that the defendant’s firearm possession is somehow “in or affecting commerce,” as the statute puts it.

In Curtis’s case, he argued that while the gun – which was manufactured in Massachusetts – once traveled in interstate commerce, his current possession of it in his bedroom was too insignificant to “substantially affect” interstate commerce. In United States v. Lopez some 30 years ago, the Supreme Court struck down the Gun-Free School Zones Act of 1990 (which made possession of a gun in a school zone a federal crime). Lopez held that Congress exceeded its constitutional authority under the Commerce Clause because possessing a gun in a local school zone is not an economic activity that substantially affects interstate commerce.

th Circuit held that Curtis’s Commerce Clause challenge was foreclosed by its decision in United States v, Diaz.

However, the 5th Circuit granted en banc review. Rehearing en banc has the case reheard by all 17 judges in active service on the 5th Circuit and as many of the seven judges on senior status as want to join in. Contrary to inmate lore, en banc review is rarely granted, generally about two-tenths of 1% a year of all cases. En banc review is used to reverse prior circuit precedent or where the circuit’s position conflicts with other circuits.

In Curtis’s case, enough judges found the question of whether § 922(g)(1) exceeds Congress’s authority under the Commerce Clause to hear the case, one of only 14 decisions the 5th Circuit will take up en banc this year.

Last week, the Firearms Policy Coalition filed an amicus brief in the case arguing that the limitation in § 922(g) that the gun have traveled in interstate commerce was nothing more than a “jurisdictional hook” that was invalid given the historically narrow use of the term “commerce” when the Constitution was written and the admitted purposes of § 922(g), which was to control violent crime.

Controlling violent crime, the FPC argued, is an activity reserved to the states: the stated purpose of § 922(g) – where 39 states already have laws banning felons from possessing guns (although usually limited by the type of prior crime and for a stated period of time.

As is typically the case, the only evidence that Curtis Squire possessed a gun “in or affecting commerce” was that the weapon had at some point in its history crossed state lines. As the FPC notes, establishing that element is rarely difficult: “The government has proffered testimony that 95% of all guns in the United States have crossed state lines.”

“In other words,” Reason reported last week, “the constitutional rationale for making a federal case out of the pistol found in Squire’s living room is barely more demanding than requiring proof that the gun was made of metal. Can that possibly suffice to treat § 922(g)(1) as an exercise of the power to regulate interstate commerce?”

The FPC thinks not. ‘Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon,’ it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.”

Last month, a woman in Philadelphia threw an ice cream cone at her husband (he probably had it coming).  The ice cream was made in Hershey, Pennsylvania, and the cone was baked in Hermitage, Pennsylvania. But the paper wrapper on the cone was printed in Iowa. Applying Congress’s Commerce Clause theory, the woman’s possession of the ice cream cone was “in or affecting commerce.”

The Commerce Clause argument has great import for § 922(g) defendants. As well, it may affect other statutes that depend on interstate commerce as a jurisdictional hook, from arson to child porn to Travel Act to murder-for-hire.

Whatever the outcome of the en banc proceeding, it will undoubtedly end up at the Supreme Court.

United States v. Squire, Order (5th Cir. July 20, 2026)

United States v. Squire, 177 F4th 614 (5th Cir. 2026)

Firearms Policy Coalition, Amicus Brief in Case No. 25-30324 (September 10, 2026)

Reason, How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws (September 11, 2026)

~ Thomas L. Root

Calling Out Hunter – Update for September 17, 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.

HUNTER HAS NO CLOTHES

US District Judge Joseph Goodwin, who sits on the court in the Southern District of West Virginia,  wrote a thoughtful Substack last week arguing that the Supreme Court’s Hunter v. United States decision last June, like Hans Christian Andersen’s Emperor, has no clothes.

Hunter held that a defendant’s waiver of appellate rights is enforceable except where to enforce it would constitute a miscarriage of justice.  The Court left the question of what is serious enough to constitute a miscarriage of justice for another day.

Judge Goodwin argues that plea deals that waive appellate and 2255 rights are abominations (in the religious sense, here being something utterly repulsive to justice. He recounted how once,

talking off the record about one of these waivers, I asked what kept me from coming into the courtroom, announcing the sentence, and telling the defendant, ‘I’ll get you a good seat on the bus.’ I was being flip. I knew the answer. The law kept me from doing it. But the question is not as flippant as it sounds, because Hunter has to answer it. A waiver that reaches every error reaches that one too. So somewhere between a Guidelines miscalculation and the seat on the bus, the waiver stops working, and the Court has told us only that the first is too small to count. It has not told us what makes the second big enough.

Judge Goodwin points out that statutes, rules of criminal procedure and Guidelines all still apply at sentencing. The defendant still has rights, and the judge still has obligations imposed by law.  The waiver means that there is just no way to enforce those rights and duties.  “That is what has always seemed so odd about the appellate waiver,” the Judge wrote. “The judge remains bound by the law, while the parties agree in advance that some violations of that law won’t be reviewed.

Judge Goodwin states the obvious: the appeal statute, 18 USC § 3742, is not just some private benefit Congress granted a defendant, only to be traded away to the prosecutor. “Appellate review was built into the sentencing system,” Judge Goodwin writes. “It corrects errors, develops sentencing law and, importantly, gives district judges a reason to be careful about getting the law right. I do not see where the parties get the authority to bargain that away.”

The essay is thoughtful reading for anyone concerned that the intersection of justice and efficiency, efficiency may have t-boned justice.

Sentencing Matters Substack, How Lawless Is Too Lawless? (September 8, 2026)

Hunter v. United States, — U.S. —, 146 S. Ct. 1702, 225 L. Ed. 2d 272 (2026)

~ Thomas L. Root

Compassionate Release Data Published – Same ‘Ol Same ‘Ol – Update for September 15, 2026

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NUMBERS TELL TALE OF TWO SENTENCING REDUCTION MOTIONS

The U.S. Sentencing Commission released data last week on both its criminal history reduction decision and the 18 USC § 3582(c)(1)(A) compassionate release sentence reduction motions.

Both datasets are current through June 30, 2026.

The number of prisoners filing compassionate release motions every month, let alone getting grants. continues to fall and is slight compared to the overall federal prison population. For the last quarter, 497 motions were filed, only 70% of the number filed during the same time last year, and only about half the number filed in April through June 2023.

When it comes to the number granted, the news is both good and bad. The data show that about 13% were granted last quarter, a pretty slight number. The grant rate, however, is pretty much unchanged from 2025 (13%, 2024 (14%) and 2023 (12%).

The numbers do not account for the negative effect of the Supreme Court’s Rutherford and Fernandez decisions (May 2026), which denied prisoners filing compassionate release motions the right to rely on disparate sentences resulting from intervening law changes. The data suggest that the Rutherford/Fernandez effect could reduce grants to around 10%.

Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman bemoaned the very limited effect compassionate release has on the overall prison population: “With a federal prison population over 150,000, this means only slightly more than an average of 1 out of every 10,000 federal prisoners are securing a § 3582(c)(1)(A)(i) reduction each month. That’s not a lot of compassion. And, with roughly 4,500 persons being sentenced to federal prison each month, roughly 250 new persons are being sent to federal prison each month for every single federal prisoner securing a sentence reduction.”

In February 2024, the Commission made its change in the criminal history guidelines retroactive. The data show that more than 10,000 federal prisoners have reduced their sentences by about 12 months on average. About 6,000 of those changes were based on the status point amendment (eliminating extra criminal history points if the defendant was on parole, probation or supervised release), and around 4,000 were based on the zero-point offender amendment. Berman said, “Those 10,000 (modest) sentence reductions based on retroactive criminal history amendments granted since February 2024 amount to roughly 10 times as many sentence reductions as have been granted based on compassionate release motion (though the average compassionate release reduction is likely greater).”

U.S. Sentencing Commission, Compassionate Release Data Report (through June 30, 2026)

U.S. Sentencing Commission, Retroactivity Analyses And Data Reports (through June 30, 2026)

~ Thomas L. Root

Disabled Prisoner Allowed to Use ADA To Pursue Prison Indifference to Medical Needs – Update for September 14, 2026

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9TH CIRCUIT LETS PRISONER ADA SUIT GO FORWARD

Ignore, Deny, Dissemble.  The Federal Bureau of Prisons’ (and state prison systems’ as well) approach to inmate medicine seems to follow this formula.  First, ignore the inmate’s medical problem for as long as possible. Then, when it’s no longer possible to pretend the problem isn’t there, deny treatment without a stated basis, let alone justification. Finally, when the inmate is out of options and must sue, dissemble: tell the court that the inmate never complained about the problem, that the problem is no longer there, and that anyway, you are treating the problem so the case is moot.

Last week, beleaguered inmates seeking basic medical care were heartened by a procedural victory in the 9th Circuit, where a state prisoner won the right to a trial under a seldom-used tool in the prisoner’s medical-care toolbox, the Americans with Disabilities Act. The ADA, found at 42 USC § 12101,  prohibits discrimination based on disability. It affords much the same protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964 does based on race, religion, sex, national origin, and other characteristics. In addition, unlike the Civil Rights Act, the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public institutions (including prisons) to make reasonable accommodations for people with disabilities.

The 9th Circuit’s decision reminds us of both how miserable living with a disability in prison can be and how the ADA can be used for relief.

Bilal Adom is a California state prisoner who has a spinal condition that causes him chronic, severe pain and severely limits his mobility. He underwent spinal surgery in 2008 and has an active recommendation pending for a second surgery. He is also a stroke survivor. Adom uses a wheelchair to get around and wears a prison-issued vest that signals he is mobility impaired.

Because of his condition, Adom suffers from incontinence. For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with adult diapers through the prison system’s Durable Medical Equipment program. After Adom was transferred to a different housing unit, prison staff cut off his access to the supplies without explanation. As the Court drily put it, “Without these supplies, Adom would soil himself and his surrounding environment, including his bed and wheelchair.”

Adom asked the prison to restore his access.  His requests were ignored. Following a medical appointment in which a doctor’s “forceful” examination led to Adom’s involuntary urination in his wheelchair seat, he asked the physician to help him get his diapers.  She did nothing. Adom subsequently made multiple written requests for incontinence supplies.

On September 13, 2022, he filed a healthcare services request notifying the prison that he had run out of diapers and that his supplies were not refilled on the normal schedule. In one request, he explained that “he was unable to control his evacuations, that he was using makeshift diapers made of torn towels, trash bags, tissues, and plastic, and that he was ‘humiliated and dehumanized.” On September 18, 2022, Adom submitted a Reasonable Accommodation Request, notifying the prison that he suffered from both urinary and fecal incontinence, that his incontinence supplies were not issued the prior week, that he was soiling his linens, and that he was unable to get new linens or diapers. Between written requests, he informally asked “several building officers” to retrieve, or allow him to retrieve, his incontinence supplies.

A month after his blizzard of requests, the prison formally denied Adom’s request for diapers, telling him instead that staff would “provide [him] a shower as soon as safety and security permits,” and ensure that his soiled clothing was properly washed. The prison denial falsely ruled that “there was no indication found for incontinence supplies.”

Finally, after five months of the worst sort of misery, Adom’s incontinence supplies were restored. Nevertheless, he sued, raising a variety of claims, including an 8th Amendment deliberate indifference count and an ADA count. He sought money damages and an injunction requiring the prison to provide adult diapers. 

The district court was unimpressed and granted summary judgment to the prison system. It held that Adom’s request for injunctive relief was moot because in January 2022, the prison had reinstated his incontinence supplies. The district court further held that Adom was not entitled to money damages under the ADA because he failed to establish that the prison discriminated against him because of his incontinence. Instead, the court said that because the prison provided testing and some alternative accommodations, the district court held that Adom’s evidence “most reasonably indicated a disagreement about medical treatment, rather than disability discrimination.”

Last week, the 9th Circuit reversed the summary judgment decision and sent the case back for trial.

The 9th held that Adom satisfied the three primary elements of his ADA claim and therefore was entitled to declaratory relief where a reasonable jury could conclude that (1) he is disabled within the meaning of the ADA by virtue of his spinal condition, incontinence, or both; (2) he was denied meaningful access to the prison’s toileting and hygiene services because he needed the accommodation of adult diapers to relieve himself hygienically and with dignity; and (3) the denial was by reason of Adom’s disabilities, because it is his disabilities that make it harder for him use the prison’s toileting and hygiene services.

The panel also held that Adom provided enough evidence to earn the right to a trial on whether the prison acted with deliberate indifference when it denied him the benefits of its services (which he must show to get money damages). Rejecting the prison’s contention that a jury could not find deliberate indifference because its staff determined that incontinence supplies were not medically necessary, the panel held that “a public entity is not excused from its obligation to provide a reasonable accommodation solely because it determined the accommodation is not medically necessary or indicated.”

The Circuit remanded the case to the district court.

Adom v. California Dept of Corrections & Rehab, Case No. 24-4756, 2026 U.S. App. LEXIS 27530 (9th Cir. Sept. 8, 2026)

~ Thomas L. Root

SHFTy Business at the BOP – Update for September 11, 2026

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CBS REPORTS ON ‘SHFTY’ DEAL ON BOP NICOTINE POUCHES

Nice deal if you can get it. CBS News reported last Friday that a Florida company that was established only three months ago won what CBS called “an unusual and potentially lucrative deal to be the only business permitted to stock the commissaries of the Bureau of Prisons’ 118 institutions with flavored nicotine pouches.”

The brand of 6-mg pouches, called “mindSHFT,” is not authorized by the Food and Drug Administration for sale in the US, according to a review of FDA data.

The BOP never formally issued a request for bids on a provider for nicotine pouches (which would have been a public document).  In fact, CBS reported, the agency does not even have a signed contract with mindSHFT. Despite this, BOP trust fund chief, Adam Morrow, informed all federal prison commissaries on July 21 that the sale of nicotine pouches “has been authorized,” and the sole approved vendor would be SHFT Holdings Enterprise LLC, the company providing the pouches.

After an anonymous federal employee emailed the DOJ IG and AG Blanche last week to raise concerns, a senior BOP official last Thursday ordered all prisons to stop buying and stocking mindSHFT, according to a Sept 3 internal memo reviewed by CBS News. Federal law prohibits the sale and marketing of nicotine and tobacco-related products that are not authorized by the FDA.

SHFT Holdings Enterprise LLC was incorporated in Florida one week after the BOP published a nationwide “request for information” on May 15 that asked about vendors who could produce “FDA-authorized nicotine pouch products” to sell to federal prisoners. A company spokesman said the company was formed in response to the BOP public notice, but it registered its domain name – https://shftholdings.com — on May 7, the same day the BOP amended its Trust Fund manual to permit the sale of nicotine pouches in commissaries. 

The BOP recommended that commissaries buy three tins of mindSHFT for every inmate, which would have amounted to 459,000 units, or about $3.24 million. The BOP was buying tins at $6.99 per tin and selling them to inmates for $9.10.  One source told CBS News the tins had been “selling like hotcakes.”

BOP accused SHFT Holdings of telling it the pouches were FDA-approved. SHFT denies having said that.  No one has yet determined how SHFT got the contract to the exclusion of other vendors.

A ZYN 10-pack of 6 mg nicotine pouches (150 pouches) is advertised online for $44.90, or about 30 cents a pouch. The SHFT pouches cost inmates about 45 cents a unit.

CBS News, Bureau of Prisons faces scrutiny over startup’s exclusive deal to sell non-FDA-authorized nicotine pouches to prisoners (September 4, 2026)

BOP, PS 4500.12, Trust Fund Manual (May 7, 2026)

~ Thomas L. Root

Judges Aren’t Prefect – Update for September 10, 2026

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DISTRICT COURTS CAN SCREW UP

Hard as it may seem to believe, from time to time, federal district courts can make some pretty rookie mistakes.

Throwing the Baby Out With the Bathwater:  Last week, the 4th Circuit reversed the conviction of Cristian Arias, one of three defendants accused of being MS-13 members who had committed a murder. The defendants’ attorneys agreed on a joint defense that none of the defendants had been involved.  But in her passionate closing argument, Cristian’s attorney suggested that the other two may have done it, but her client had been picked up and was driving around with them after the fact.

The other defendants’ lawyers stood to object several times, but the judge waved them back into their seats. After all the arguments were done, they moved for a new trial because Cristian’s lawyer had essentially accused their clients of the killing. But rather than a new trial or simply instructing the jury that it should disregard counsel’s suggestion, the judge told the jury “to completely disregard the entire closing argument offered by [Cristian’s counsel] on behalf of [Cristian]. You may not use any of the information or arguments she offered as you deliberate in this case.”

The 4th ruled that “even if there were several individual aspects of Cristian’s argument that were improper, much of the argument was not. For instance, at one point during the closing, Cristian’s counsel argued that there was little evidence corroborating [an informant’s] testimony and that there was evidence indicating [the informant] had previously implicated gang members other than Cristian when discussing the murders with other witnesses. Cristian’s counsel also argued there was little evidence indicating Cristian was anything more than a peripheral member of the gang. Whether or not these arguments were convincing aside, no one suggests they were improper. Thus, while the district court enjoys broad discretion to control closing arguments, it abused that discretion in this case by striking all of the argument, even the unobjectionable parts.”

The Circuit criticized the judge for not hearing other counsels’ objections at the time they tried to raise them. Had he done so, the 4th said, the judge could have given proper limiting instructions without throwing the whole baby out with the bathwater.

Sleight of Hand:  Last week, the 9th Circuit reversed Eduardo Valencia’s convictions for Hobbs Act robbery and an 18 USC 924(c) for carrying a gun, and sent it back for a new trial.

Eddie has tattoos covering the backs of both hands. His lawyer wanted him to hold his hands to show them to the jury, so counsel could argue that the video of the crime showed that the robber had no tats and thus could not be her client.  Maybe the judge was mindful of OJ Simpson’s attempt to try on the killer’s gloves and blurting out, “They’re too small,” without taking the stand. This non-testimony testimony let attorney Johnny Cochran memorably argue at closing, “If it doesn’t fit, you must acquit.” For whatever reason, the judge held that Eddie could not exhibit his hands to the jury unless he took the stand.

The district court found that such a display would be testimonial, “and therefore that [the defendant] would have to take the witness stand and subject himself to cross-examination” if he showed his hand tattoos to the jury.Eduardo declined to take the stand, and he was convicted.

The 9th ruled that its own precedent in United States v. Bay established that exhibiting a tattoo was not testimonial. On appeal, the government conceded that the district court’s holding was wrong, but argued the error was harmless because the jury could see Eddie’s hands when he was sitting at counsel table. “That the jury could see Eduardo’s hands in open court misses the point,” the Circuit held. “The fundamental error is that the district court forced Valencia to take the stand in order to display an identifying physical characteristic—hand tattoos—to the jury. That was precisely the error in Bay, and it is the error here.”

United States v. Arias, Case No. 24-4308, 2026 U.S.App. LEXIS 27288 (4th Cir. September 3, 2026)

United States v. Valencia, Case No. 24-3820, 2026 USAppLEXIS 27285 (9th Cir. Sept 3, 2026)

United States v. Bay, 762 F.2d 1314 (9th Cir. 1984)

~ Thomas L. Root

President Grants Clemency to Some Normal People! – Update for September 8, 2026

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TRUMP GRANTS CLEMENCY TO 30 MOSTLY NON-WIRED PRISONERS

Regardless of how one feels about President Trump, no one disputes that he retains the ability to be “unpredictable and unorthodox” (as The New York Times put it): After nearly a year of distributing pardons and commutations only to people who are politically or financially wired to his Administration, last Thursday, Trump issued 30 clemency grants largely to just plain folks.

The clemency grants went to an eclectic group. The news accounts focused on a pardon granted to Emory Jones, a longtime associate ‌of rap mogul Jay-Z (released in 2010). However, the pardons included mostly lower-profile people serving long sentences and lacking obvious connections to the president or his allies.

Unusually, as of Sunday, the White House had released neither a press release trumpeting the clemencies nor list of recipients. Instead, the clemencies were announced by White House Pardon Czar Alice Marie Johnson on her X-formerly-known-as-Twitter account. She said

I am deeply grateful to President @RealDonaldTrump for granting clemency and pardons to 30 deserving individuals whose cases we carefully reviewed and brought forward—and to the White House Counsel team, led by Will Scharf, for the hard work behind these decisions.

In fairness to the Administration, the focus on a Jay-Z associate may have stemmed from Ms. Johnson identifying him in her post. The media also noted that John Dougherty, a Philadelphia union boss who had served a third of his 6-year sentence, had his sentence commuted. However, a White House official told the Times that “Dougherty’s sentence was commuted to allow him to care for his terminally ill wife. Her father had been caring for her, but he passed away while Mr. Dougherty was in prison, the official said.”

While too many federal prisoners face similar circumstances, it’s hard to argue against commutation under Dougherty’s circumstances.

Two of the clemencies were granted to prisoners serving time for  marijuana trafficking  convictions, according to Marijuana Moment.

Thursday’s clemencies suggest that the White House may be abandoning Trump’s very unpopular custom of clemencies for the rich and powerful.  Ms. Johnson seems largely to have been sidelined since her appointment as Trump’s “pardon czar,” and the Dept of Justice’s Office of Pardon Attorney (under the execrable leadership of the recently departed Edward Martin) has had almost no role in Presidential clemencies.

As the Times noted, Trump’s “use of clemency has spawned a cottage industry of lawyers and lobbyists offering to use their connections to bring cases to his attention in exchange for hefty fees.” Thursday’s very low-key and anodyne clemency action may be Trump’s way of defusing the “pay-to-play” criticism leveled against his Administration over its grants to 1,700 people ⁠(1,500 of whom were January 6th rioters) in the last 20 months, some of whom spent a million bucks or more to secure their grants.

A return to normal clemency procedures – as opaque and clunky as it has traditionally been – would be an improvement.

In other pardon-related news, former DOJ Pardon Attorney Elizabeth Oyer – easily the most pro-clemency lawyer to occupy that post in the last 30 years – sued the government last Thursday to get her job back, alleging she was unlawfully dismissed for refusing to restore gun rights to actor and Trump friend Mel Gibson.

In the suit, filed Thursday in federal court in Washington, former Pardon Attorney Elizabeth Oyer says her firing last year violated her constitutional rights and federal civil service protections.

Oyer refused her boss’s demand that she recommend restoring Gibson’s gun rights despite his domestic violence-related conviction. Hours later, DOJ security officers arrived at her office with a termination letter signed by then-Deputy Attorney General Todd Blanche and escorted her from the building, according to her Complaint.

“This case is about much more than what happened to me,” Oyer said in a statement released by her attorneys. “I was fired because I refused to put politics ahead of my duty to the American people.”

NY Times, Trump’s Latest Clemency Grants Benefit Drug Offenders, Union Boss (September 4, 2026)

Alice Marie Johnson @alicemariefree, Post on X (September 4, 2026)

Marijuana Moment, Trump Releases More Federal Marijuana Prisoners As DEA Considers Rescheduling Cannabis (September 4, 2026)

Politico, Former pardon attorney sues DOJ for firing over Mel Gibson gun rights case (September 2, 2026)

Complaint, Oyer v. Blanche, Case No 1:26-cv-3092 (Doc. 1) (D.D.C., September 3, 2026)

~ Thomas L. Root

Sentencing Commission Looks Inward for Next Year – Update for September 3, 2026

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SENTENCING COMMISSION DREAMS BIG, DISAPPOINTS THOSE WHO WOULD JUST LIKE A LITTLE PROGRESS

The US Sentencing Commission adopted its priorities for the coming 2027 Amendment cycle last week, plans that can be summed up as “We’re gonna do some stuff.”

What’s missing are concrete proposals to reconsider guidelines on meth purity, sex offense, or felon-in-possession, to name a few.

The Commission said it intends to “undertake an evaluation of the guidelines and federal sentencing practices in light of the Commission’s mission set forth in the Sentencing Reform Act, the statutory purposes of sentencing in 18 USC 3553(a)(2), and relevant legal developments that have occurred in the past four decades.”

The Commission also expects to undertake a comprehensive review of its Rules of Procedure 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. As part of the priority, the Commission expects to review current practices and consider possible changes regarding: (a) what Commission work is conducted in public; (b) what Commission policymaking materials should be made public; (c) how stakeholder and public involvement is structured, including through rules about ex parte communications; and (d) what analyses supporting agency policymaking are conducted and released publicly.”

Having the USSC start doing more than walking into its meeting room, holding a couple of unanimous votes on guideline changes, and calling it a wrap, all in 20 minutes, would be a good idea. Likewise, when an idea – such as changing the meth purity guidelines – dies, a public funeral where the reasons for the rejection are explained would benefit those of use the Commission likes to call its “stakeholders.”

Writing in Sentencing Matters substack, University of Minnesota law professor Sam Merchant said,

The Commission is exploring at least six substantive changes covering aspects like who sits at the table, adding as nonvoting seats a member of the Criminal Law Committee of the Judicial Conference and a representative of the Federal Public Defenders, making it harder to make amendments retroactive, disclosing Commissioners’ ex parte communications, increasing public participation in agenda-setting, and publicly disclosing meeting materials and nonpublic minutes… If adopted in full, the Commission could operate more transparently, add more voices and broaden participation at meetings and hearings, and could need five votes, rather than four, to apply an amendment retroactively.

USSC, Final Priorities for Amendment Cycle (Aug 27, 2026)

Sentencing Matters substack, Summaries: The U.S. Sentencing Commission’s Final 2026-27 Policy Priorities, Proposed Changes to Rules of Practice and Procedure, and Drone Amendment (August 31, 2026)

~ Thomas L. Root

They Pardoned Him, But Only After A Little Medical Neglect – Update for September 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.

J6 BOP PRISONER GETS PARDON, THEN SUES FCI ELKTON FOR LOUSY MEDICAL CARE

A retired Pennsylvania firefighter who threw a fire extinguisher that hit two police officers during the Jan 6, 2021, attack on the US Capitol has sued FCI Elkton for failing to treat his numerous medical ailments. The BOP’s medical nonfeasance, according to the plaintiff, eventually led to surgery and chronic pain.

Robert Sanford was one of more than 1,500 people President Trump pardoned for crimes committed during the Jan 6 attack.

Sanford was sentenced in 2023 to four years and four months in prison for throwing the fire extinguisher at officers defending the Capitol while calling them “traitors.” He was released in October 2024 after the BOP filed a compassionate release motion asking his sentencing judge to release him about 19 months early on a 52-month sentence because of Sanford’s undisclosed “terminal medical condition.” The court filing redacted the medical condition.

After his release, Trump pardoned him and 1,499 of his closest friends, all fellow rioters.

Sanford’s lawsuit says Sanford was physically fine when he arrived at the prison. In early 2024, he developed worsening back pain that went untreated despite multiple requests for medical care, the lawsuit says. He filed the suit in the Eastern District of Pennsylvania, but it was transferred to Cleveland.

A doctor prescribed a steroid in May 2024, but it did not help, according to the lawsuit. In July, Sanford reported that the pain was so severe that he struggled to walk. Later that month, he returned to the doctor in a wheelchair and was again prescribed steroids. The wheelchair was replaced with a cane, the lawsuit says.

He returned to the doctor, who accused him of faking his illness. Sanford was then thrown into the SHU, according to the lawsuit.

After an X-ray on Aug 1, he was diagnosed with arthritis in his hip and hip impingement syndrome, the lawsuit says. He fell while using a walker the next day. Despite his pleas for help, he was not seen by prison doctors for four days.

Doctors then sent him to a nearby hospital, where they found that he had serious blood clots, a badly fractured hip and lung cancer, according to the lawsuit.

Seriously hurting but accused of faking it?  Who’s ever heard of such a thing happening at the BOP?

Sanford v, FCI Elkton, Case No 4:26-cv-02034-S (ND Ohio, filed May 18, 2026)

~ Thomas L. Root