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Mythbusters – Update for May 23, 2025

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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.

NO, CAMPERS ARE NOT BEING SENT HOME (AND OTHER MYTHS)

twain250523Mark Twain once said, “A lie can travel half way around the world while the truth is putting on its shoes.”

Oh, the sweet irony! Because it appears that Mark Twain (whose name wasn’t really “Mark Twain,” another lie) did not really say that. In other words, it’s a lie that Twain (the name itself being another lie) said that “a lie can travel half way around the world…”

Fitting for today’s post, because it’s hard to say how a lie like that can take flight. That leads us to two whoppers spreading through the Federal Bureau of Prisons like flu in a housing unit.

home210218Myth 1 – All minimum-security federal inmates with fewer than five years left are being sent to home confinement.  I get at least a dozen emails a week on this one: Is it true that Trump signed an executive order sending campers home? Is it true that it will all happen in September? Is it true that all the camps will close?

The answers are no, no, and no.

Trump has signed about 200 executive orders since January 20th, but not a one relates to the Bureau of Prisons (except the order to re-open Alcatraz). Nothing has been scheduled for September. BOP Director William K. Marshall III will not be personally driving everyone home. The camps will not close. It’s all a myth.

Here are the facts: The BOP is only allowed to send people to home confinement in one of two cases. Either the prisoner is in the last six months (or 10%, whichever’s less) of his or her sentence, or the prisoner is eligible to use FSA credits. For the former, 18 USC § 3624(c)(2) lets the prisoner go to home confinement. For the latter, 18 USC § 3624(g)(2)(A) permits spending those FSA credits on home confinement.

Congress has dictated when and how home confinement can be designated. Other Congressional home confinement programs (CARES Act and Elderly Offender Home Detention) expired two years ago. The President cannot order the BOP to send people to home confinement where Congress has passed laws expressly limiting it.

methuser161128Myth 2 – Send me a copy of the new meth law: I get nearly as many emails from people asking me to send them a copy of the “new meth law.” Do I look like a lending library? No matter, the response is straightforward. There is no new meth law.

In January, the Sentencing Commission said it was considering a change in the methamphetamine guidelines to do away with the purity enhancement, an increase in punishment where the meth was especially pure (or was “ice”). The change made great sense: these days, virtually all meth met the higher purity threshold, and so the old supposition – that very pure meth suggested the defendant was a high-level dealer – no longer had any legs.

In April, the USSC adopted proposed amendments that will take effect in November. The meth purity proposal was not among them. To this day, no one knows what happened to the idea.

yogi250523A few points: First, a Guideline is not a law. Judges must follow laws but not guidelines. Laws can be passed that trample guidelines, but guidelines cannot negate laws. Second, the drug trafficking sentence statute (21 USC § 841(b)) contains enhanced penalties for pure meth, and any guidelines change would not change the law and therefore have limited effect. Third, no one in the Republican majority Congress has any interest in easing the drug laws right now, even if fentanyl is the drug bad-boy-of-choice right now.

Recap: Home confinement for campers is a fantasy. A new meth law is a myth. And Mark Twain was not Mark Twain, and he probably never said most of the things he said.

– Thomas L. Root

An Offer You Can’t Refuse – Update for May 21, 2025

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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.

LET’S MAKE A DEAL

letsmakeadeal250522Bad, bad Leo Brown… Well, maybe not so bad, but in bad trouble. In October 2016, Edwin Leo Brown was indicted on four counts of possession with the intent to distribute crack cocaine and a fifth count for being an 18 USC § 922(g)(1) felon in possession (F-I-P) of a gun. Leo was looking at a maximum sentence of 20 years’ imprisonment on each of the four drug charges, and up to 10 more on the F-I-P count.

Leo’s lawyer, Frank Harper, negotiated with the government, ultimately getting two plea agreements—one of which called for Leo to cooperate with the Feds and one of which did not—that both called for Leo to plead guilty only to the F-I-P count. That meant that taking either deal would limit Leo’s sentence to ten years. Harper advised Leo that he should take one of the plea agreements or the other, but Leo was skeptical. When Leo told Harper that he felt like the lawyer could have gotten him a better deal than 10 years, Harper apparently responded in exasperation, “It’s not my fault why you’re facing ten years.”

That offended Leo, who “from that moment” did not “trust [Harper’s] judgment” and told him so. The relationship deteriorated, and Harper subsequently withdrew as counsel.

Enter affable lawyer Brett Wentz. Leo liked Wentz, who agreed that Leo would face a firm sentence of 10 years if he took either plea deal, but told him that even if he did not–instead just entering an “open plea” to all counts without any–Leo’s sentencing guideline range would be the same. “In other words,” as the 4th Circuit described it, “Wentz advised Brown that he would be facing a statutory maximum of ten years’ imprisonment regardless of whether he accepted a plea offer or not.”

Leo really wanted to preserve his right to appeal, which he would have to waive under either version of the plea agreement. So after Wentz told him he’d get no more than 10 years with or without a plea deal, Leo thought it was a no-brainer. He rejected the plea offers and entered a guilty plea to all counts without benefit of a plea agreement.

harper250522At his change-of-plea hearing, the judge told Leo that he faced up to 20 years’ imprisonment on each of the four drug charges. At that point, Leo and lawyer Wentz conferred off the record. Leo then told the court he understood the penalties. The judge proceeded to tell Leo that he faced 10 years on the F-I-P. Leo again talked to Wentz off the record before telling the court he understood that potential penalty, too.

Unless there’s a plea deal that requires a particular sentence, the judge always tells a defendant during a change-of-plea hearing that even if defense counsel had given him an estimate of what the sentence might end up being, that estimate is not binding on the court. Leo’s judge told him this, but Leo “affirmed that he understood and subsequently entered an open guilty plea as to all five counts.”

You can see where this is headed, but Leo couldn’t. At sentencing a few months later, the court hammered Leo with 210 months’ imprisonment—17½ years—on all counts, an upward departure from the advisory guideline sentencing range of 87 to 108 months. Leo was not pleased.

After his sentence was affirmed on appeal, Leo filed a 28 USC § 2255 post-conviction motion arguing that Wentz provided ineffective assistance in giving Leo wrong advice on taking the plea deal.

Relying on the Supreme Court decision in Lee v. United States, the district court ruled that it would “not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his [counsel’s] deficiencies.” Instead, it would look to “contemporaneous evidence to substantiate a defendant’s expressed preferences.” Based on the record, the district judge found, “even if Wentz had properly advised Brown about his sentencing exposure… Brown would not have signed the non-cooperation plea agreement with an appellate waiver and pleaded guilty to count five pursuant to the plea agreement” because avoiding having to “waivi[e] his right to appeal was more important to Brown than his sentencing exposure.”

On Tuesday, the 4th Circuit reversed the judgment, holding that Lee was the wrong standard to apply and that Leo had “demonstrated a reasonable probability that, but for Wentz’s erroneous advice regarding sentence exposure, he would have accepted the government’s offer.”

The 4th held that “the biggest distinction” between Lee and Leo’s case “is that Lee concerned an individual who accepted a guilty plea offer, while the instant appeal concerns an individual who rejected a guilty plea offer.” The Circuit said that the proper standard where a plea deal is rejected is set out in Missouri v. Frye and Lafler v. Cooper, a pair of Supreme Court decisions from 2012 that “articulated a different way to show prejudice” where a plea deal is not accepted, which is the issue in Leo’s case.

coulda250522A defendant who argues he rejected a plea offer because of ineffective assistance of counsel “need not present contemporaneous evidence to support his ineffective assistance claims,” the 4th Circuit said. Instead, a reasonable probability that a defendant would have accepted the plea offer but for counsel’s bad advice was met here by Leo’s testimony that he “would have taken the plea that the Government offered [him]” had he known he was facing a theoretical maximum of 90 years’ imprisonment, and that he believed, based on Wentz’s advice, that his “maximum exposure” when he pleaded to all five counts was “[n]o more than ten years.” The very fact that Leo pled guilty to more serious charges—namely, receiving 17.5 years’ imprisonment when the government’s plea offer offered a max of 10 years—was alone enough to show a “reasonable probability” Leo would have taken the deal, the Circuit said.

The Circuit ordered the case remanded and that Leo be offered the original 10-year deal.

United States v. Brown, Case No. 22-7105, 2025 U.S. App. LEXIS 12211 (4th Cir. May 20, 2025)

Lee v. United States, 582 U.S. 357 (2017)

Missouri v. Frye, 566 U.S. 134 (2012)

Lafler v. Cooper, 566 U.S. 156 (2012)

– Thomas L. Root

Pardon News Continues Unabated – Update for May 20, 2025

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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.

ALICE IS BACK… AND A ‘SUBSTANTIAL BATCH” OF CLEMENCY GRANTS MAY BE COMING

After President Trump appointed former federal inmate Alice Marie Johnson to be his “pardon czar” last February, she seemed to disappear. No one even knew whether she’d have a White House office as opposed to mere corresponding privileges with Trump.

alicesrestaurant250224Last week, we learned a little about what she is doing and got a hint that a clemency release is looming. In a Fox News interview with Lara Trump (which included a lot of fawning over the President), Johnson said, “President Trump had asked me to go find people like myself, and I brought many to the White House and President Trump gave those individuals a second chance…” She said that she “sent over 100 clemency and pardon petitions to the White House” and “46 people really were able to get a second chance in life…”

Johnson suggested that her criteria included people “who deserve this second chance who are similarly situated, not just like me, but who have served enough time, who have paid their debt to society, plus there are those who have been, I’m going to say, the victims of lawfare the same way our President was.”

“Lawfare” as commonly used refers to an attempt to damage or delegitimize an opponent, or to deter an individual’s usage of his or her legal rights. President Trump has said that his indictments for January 6th conspiracy, mishandling of national security documents, Georgia election interference, and New York “hush money” allegations were all lawfare against him.

pardonme190123A batch of clemency grants may be on the horizon. Last week, The Wall Street Journal reported that clemency for some plain folks may be coming, “The president, according to a senior administration official, has taken a particular interest in the work of Alice Johnson, the pardon czar he appointed earlier this year,” the Journal said. “He regularly asks her, ‘Where are my pardons?’ The White House is expected to announce a substantial batch of pardons in the coming weeks, the official said.”

But that’s about the only good news about clemency. Ed Martin, the man who was so reckless as acting District of Columbia U.S. Attorney that his nomination for that position couldn’t get out of the Senate Judiciary Committee, has seized the helm as Dept of Justice Pardon Attorney. Last week, Martin–described as an “egregiously unqualified political hack who has never served either as a prosecutor or judge” by over 100 former federal prosecutors who signed a letter opposing his appointment to the U.S. Attorney position–said last week that “I do think that the Biden pardons need some scrutiny… And they need scrutiny because we want pardons to matter and to be accepted and to be something that’s used correctly. So I do think we’re going to take a hard look.”

Martin tried to use his office as Acting U.S. Attorney to threaten everyone from DOJ prosecutors to members of Congress to medical journals to people critical of Elon Musk to Wikipedia’s tax-exempt status.  Now, not the least bit inconvenienced by the fact that Presidential pardons cannot be undone, he intends to spend the Pardon Office’s time looking at pardons of which he disapproves (and this from a guy who as Acting U.S. Attorney dismissed a January 6th felony case against a man he had represented as defense attorney).

pardonsale210118Meanwhile, the pardon bazaar continues. Rumors are flying that Sean “Diddy” Combs is seeking a pardon to end his seamy federal sex crimes trial in New York, that former Minneapolis cop Derek Chavin could be pardoned for his federal civil rights conviction stemming the murder of George Floyd, that former Congressman George Santos is seeking a pardon to avoid a federal prison sentence imposed for fraud-related convictions, and that those perennial celebrity prisoner whiners Todd and Julie Chrisley are renewing their campaign for pardons from their federal fraud convictions.

A couple of clemency grants for just plain prisoners would be a welcome change.

Fox News, Trump ‘pardon czar’ details how she’ll help incarcerated Americans who ‘paid their dues’ (May 17, 2025) (video)

The Wall Street Journal, The Wild West of Presidential Pardons in Trump’s Second Term (May 13, 2025)

Law and Crime, ‘We want pardons to matter’: Trump admin will ‘take a hard look’ at final grants of clemency issued by Biden, Ed Martin says (May 13, 2025)

– Thomas L. Root

Making “Good Enough” on 922(g)(1) the Enemy of 2nd Amendment Perfection – Update for May 19, 2025

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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.

IS DOJ TRYING TO AVOID A SUPREME COURT 922(G)(1) CHALLENGE?

Voltaire wrote (roughly translated) that perfection is the enemy of good enough. Disturbing evidence is emerging that President Trump’s administration is adopting that standard in fighting to keep 18 USC § 922(g)(1) – the felon-in-possession ban that is the most enforced gun law on the federal books – in place.

perfectiongood250519Several DOJ Supreme Court filings last month urged SCOTUS to reject review of F-I-P cases asking whether § 922(g)(1) can be applied to nonviolent felons consistent with New York State Rifle & Postal Assn v. Bruen, arguing in part that the DOJ’s yet-unformed proposal to use 18 USC § 925(c) to restore gun rights for some felons is good enough.

In March, DOJ ginned up an ad hoc rights restoration program to reward actor and Trump supporter Mel Gibson by giving him back his gun rights despite a domestic violence conviction. Opposition to the decision cost Pardon Attorney Elizabeth Oyer her job. Ultimately, the agency restored the gun rights of 10 people (including Gibson), noting cryptically that each person had submitted “materials… seeking either a pardon or relief from federal firearms disabilities, and it is established to [the Attorney General’s] satisfaction that each individual will not be likely to act in a manner dangerous to public safety and that the granting of the relief to each individual would not be contrary to the public interest.”

gibsingun250519DOJ has neither issued any regulations on how former felons might apply for gun rights restoration nor has it responded to multiple requests for details. But that has not stopped DOJ from citing this undisclosed and opaque process as an additional reason for the Supreme Court not to grant review in any felon-in-possession 2nd Amendment cases.

On April 25, Solicitor General John Sauer opposed a petition for cert from a 4th Circuit § 922(g)(1) as-applied denial. “Although there is some disagreement among the courts of appeals regarding whether § 922(g)(1) is susceptible to individualized as-applied challenges, that disagreement is shallow,” SG Sauer wrote, “[a]nd any disagreement among the circuits may evaporate given the Dept of Justice’s recent reestablishment of the administrative process under 18 USC § 925(c) for granting relief from federal firearms disabilities.”

The Reload, a gun law newsletter, said, “The Trump Administration’s preferred approach to gun rights for convicted felons [is] one that would grant a high degree of discretion and centralize the decision-making within the executive branch rather than through a widely applicable legal precedent, as gun-rights advocates have long sought in court. As a result, it may undermine many of the movement’s best cases by undercutting the claims of sympathetic plaintiffs.”

The Government seems to be deliberately avoiding picking a Supreme Court § 922(g)(1) fight that it doesn’t think it can win. I reported previously that DOJ decided against filing for cert after losing a 3rd Circuit en banc decision on § 922(g)(1)’s constitutionality. In a letter to the Senate Judiciary Committee, the Solicitor General said, “In the case of Bryan Range, a Pennsylvania man with a 30-year-old state misdemeanor conviction for understating his income on a food stamp application, the Third Circuit ruled the ban violated his Second Amendment rights… The Department of Justice has concluded that a petition for a writ of certiorari is not warranted in this case,” Solicitor General John Sauer wrote a letter sent to the Senate Judiciary Committee last month. “The Third Circuit’s decision is narrow, leaving § 922(g)(1) untouched except in the most unusual applications.”

Two weeks ago, the 9th Circuit in United States v. Duarte joined the 4th, 8th, 10th and 11th Circuits in refusing to distinguish between violent and non-violent criminals for the purposes of F-I-P constitutionality. The Reload said, “Assuming Duarte appeals the decision, which seems likely, it could present a compelling opportunity for the High Court to address the now deepened circuit split with the 3rd, 5th, and 6th Circuits, which have all recognized an ability for individualized challenges to the federal ban by non-violent offenders.”

melyndavincent250218Last week, a cert petition filed in Vincent v. Bondi may derail the DOJ’s efforts to avoid a Supreme Court reckoning on F-I-P. Melynda Vincent is the poster child for an as-applied challenge to § 922(g)(1), a woman who was convicted 17 years ago of felony bank fraud for passing a fraudulent $498 check when she was homeless and an addict. She got no jail time. Since then, she rehabbed, became a mom, earned several master’s degrees, and started her own rehab counseling firm. Nevertheless, § 922(g)(1) permanently keeps her from possessing a gun to protect her family.

The Reload said that SCOTUS may find ruling on F-I-P easier “by accepting a case like Vincent’s, where even most hardline gun-control advocates would have a difficult time arguing she is too dangerous for consideration.”

DOJ may oppose Vincent by arguing that its new § 925(c) gun rights restoration procedure, whatever it may be, is good enough to take care of her wish to possess a gun. But if § 922(g)(1) violates the 2nd Amendment as applied to Melynda Vincent, then some amorphous and opaque DOJ procedure to restore gun rights on the whim of the AG hardly cures the violation. What’s more, it means that some, if not many, of the tens of thousands of federal prisoners doing time for a potentially unconstitutional offense will be left out in the cold.

The “good enough” of a § 925(c) rights restoration will not be sufficient substitute for the “perfection” of a Supreme Court ruling on § 922(g)(1).

Opposition to Petition for Certiorari, Hunt v. United States, Case No 24-6818 (filed April 25, 2025)

The Reload, The Coming DOJ-SCOTUS Showdown Over Felon Gun Rights (May 18, 2025)

Solicitor General Letter to Sen Richard Durbin (April 11, 2025)

Petition for Certiorari, Vincent v. United States, Case No. 24-1155 (filed May 12, 2025)

– Thomas L. Root

Sentence Reduction: Like Vegas But Without Free Drinks – Update for May 16, 2025

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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.

SENTENCE REDUCTION ODDS AREN’T GREAT, USSC DATA SHOW

dice161221The United States Sentencing Commission released some interesting retrospective data on Wednesday, showing that winning sentence reductions based on retroactive Guidelines is not necessarily a sure bet.

While you’re losing in a casino, you’re often given free drinks. In federal court, not so often…

In November 2023, the Commission adopted Amendment 821, which changed how criminal history is calculated for purposes of figuring a defendant’s advisory sentencing range. The USSC did away with “status points,” the extra two criminal history points applied when a new offense is committed while the offender is on parole, supervised release, or probation. On the other end of the spectrum, the Commission decided that a defendant who had zero criminal history points was entitled to a two-level reduction in his or her Total Offense Level.

The structure of the process for winning a sentence reduction based on Guidelines changes that are deemed retroactive is governed by 18 USC § 3582(c)(2). If the defendant is eligible (which is not the slam-dunk you might think it is), the district court is nevertheless entitled to determine with almost unreviewable discretion whether the offender deserves all of the break offered by the new lower Guideline, some of the break, or none at all.

funwithnumbers170511Since the Commission’s change in status points became effective, 15,177 federal inmates (9.6% of the prison population) have applied for reduction. Of those, district courts across the nation granted 36%, only about a third of the motions filed. Out of districts with more than 100 applications filed, Eastern Wisconsin was the toughest (97.2% denied), with Southern Iowa, Southern New York, Minnesota, and Eastern Arkansas in second place, all around an 80% denial rate. Maryland (93.8% approval rate), Kansas (66.1% approval), and Northern Alabama (61.0% approval) were the best.

Defendants who sought the zero-point criminal history reduction hardly fared better. Out of 11,749 applications (7.4% of the inmate population) to have the Guidelines 2-level reduction applied, only 32.2% received reductions. Out of districts with more than 100 applications filed, Arizona (91.2% denied), followed by Southern Iowa (89.7% denied) and South Dakota (88.3% denied) were the worst places for a prisoner to be. The best place to get a status point reduction was South Dakota (88.3% denied), with Eastern Texas (64.0% approval rate), Middle Florida (61.1% approval), and New Jersey (47.7% approval) as runners up.

compeddrink2400716The Commission also released compassionate release numbers through March 2025. Since the inception of inmate-filed motions under 18 USC § 3582(c)(1)(A) – the so-called compassionate release motion – with passage of the First Step Act in December 2018, 12,916 motions have been filed, with 13.7% granted. Through March 2025, the success rate has held roughly steady – 89 such motions have been granted, 13.4% of the total filed.

US Sentencing Commission, Part A of the 2023 Criminal History Amendment Retroactivity Data Report (May 14, 2025)

US Sentencing Commission, Part B of the 2023 Criminal History Amendment Retroactivity Data Report (May 14, 2025)

US Sentencing Commission, Compassionate Release Data Report, Preliminary Fiscal Year 2025 Cumulative Data through 2nd Quarter (May 14, 2025)

– Thomas L. Root

BOP Hiring Woes Continue – Update for May 15, 2025

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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.

BOP TOLD TO DO MORE WITH LESS

hiringfreezeB250515The Trump administration is halting some hiring at the Bureau of Prisons despite chronic understaffing has led to long overtime shifts, augmentation by nurses, teachers, cooks and other workers as corrections officers, lockdowns and loss of programs.

Shane Fausey, former National President of the Council of Prison Locals, told the Senate Judiciary Committee in 2022 that staffing at BOP fell from 43,369 employees in January 2016 to 35,000 employees in September 2022. Currently, the BOP reports having 35,925 employees.

The Bureau of Prisons will maintain current staffing levels at least through September 30, Marshall wrote in an email to staff entitled “Staffing and Hiring Decisions.”

Meanwhile, Representatives Glenn Grothman (R-WI) and Elise Stefanik (R-NY) reintroduced the BOP Direct-Hire Authority Act, legislation intended to alleviate BOP staffing shortages by circumventing Office of Personnel Management procedures that can prolong the onboarding process for new hires to over six months.

understaffed220929“One of the main hurdles in President Trump’s effort to reopen Alcatraz will be the ability to quickly hire Correctional Officers,” Grothman said in a press release. “That is why Congress needs to quickly pass this legislation to help the federal prison system which has been understaffed and overwhelmed for years.”

A prior version of the bill was introduced last December as H.R. 6628 but died when the 118th Congress expired at the end of 2024.

Stefanik is chair of the House Republican Leadership Committee.

Associated Press, Cash-strapped Bureau of Prisons freezes some hiring to ‘avoid more extreme measures,’ director says (May 8, 2025)

The Sun, Stefanik supports reintroduction of BOP Direct-Hire Authority Act (May 14, 2025)

– Thomas L. Root

Getting Habeas Corpus ‘The Hell Out of Here’ – Update for May 13, 2025

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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.

HABEAS MABEAS?

The Trump Administration continues to underscore its dedication to constitutional rights.

canceldueprocess250513A week ago, President Trump was asked on NBC’s Meet the Press whether US citizens and noncitizens alike had 5th Amendment due process rights. “I don’t know,” the President replied. “I’m not, I’m not a lawyer. I don’t know.”

Trump said he has “brilliant lawyers… and they are going to obviously follow what the Supreme Court said.” He complained that he was trying to deport “some of the worst, most dangerous people on Earth… I was elected to get them the hell out of here, and the courts are holding me from doing it.”

In other words, what a President perceives to be his mandate trumps (no pun intended) constitutional protections.

Last Friday, White House deputy chief of staff Stephen Miller said that the White House is “actively looking at” suspending habeas corpus as part of the administration’s immigration crackdown:

Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.

alicewords250513Habeas corpus dates predates medieval English common law. It requires law enforcement to justify detaining people and produce those people before a judge so their cases can be reviewed. Federally, the right is exercised through 28 USC §§ 2241 and 2255. The Constitution’s Suspension Clause allows habeas corpus to be suspended only “in cases of rebellion or invasion [when] the public Safety may require it.”

Of course, the White House is suggesting that habeas corpus would be suspended only for immigrants here illegally. The problem is this: ICE sweeps up someone it says is an illegal immigrant. That person has no right to challenge the accusation before being whisked out of the country. My barber, a guy whose family has been in this country for at least 150 years, told me the other day that he didn’t see why illegal immigrants should have any constitutional protections whatsoever. My question to him was, “So what if ICE bursts into your shop and grabs you, alleging that you’re an illegal immigrant. What do you do then, if you can’t petition the court for a hearing at which ICE has to prove you’re not dyed-in-the-wool-American born-in-the-USA Bob the Barber?”

He thought about that but concluded, “No, they’d never do that.”

Right.

A suspension of habeas corpus would mean the Trump administration could detain people believed to be noncitizens without letting them challenge that detention or to deport noncitizen prisoners without giving them access to §§ 2241 or 2255 proceedings or to immigration courts.

dueprocess250513Habeas corpus has been suspended only four times in American history, and each time Congress has authorized the suspension. (In the case of the Civil War, President Limcoln suspended habeas corpus first, but Congress caught up with the Habeas Corpus Suspension Act, 12 Stat. 755 (1863), that authorized Lincoln’s suspension after the fact).

The National Constitution Center has observed that the Constitution is vague when it comes to “who in the government can suspend the writ of habeas corpus, but it is commonly believed that only Congress can do so,” Forbes said last week. “That means it’s likely Trump would face legal challenges if he decided to suspend the writ of habeas corpus on his own without Congress… but it remains to be seen how the courts could rule.”

habeasinvasion250513New York Times writer Maggie Haberman told CNN that the habeas corpus suspension proposal is an attempt to put the federal courts on notice: “Some of this might just be fear. A, it’s a way to intimidate the courts, which we have seen Trump and Stephen Miller do, a lot of, they’ve been criticizing judges routinely and repeatedly… It also might be to scare migrants and to get migrants to leave.”

Boston Globe, Trump, in a new interview, says he doesn’t know if he backs due process rights (May 4, 2025)

The Hill, White House ‘actively looking’ at suspending habeas corpus in immigration crackdown (May 9, 2025)

National Constitution Center, The Suspension Clause (2025)

Forbes, Stephen Miller Suggests Trump Administration Could Suspend Habeas Corpus To Detain Immigrants—Here’s What That Means (May 9, 2025)

The Hill, Haberman: Threat to nix habeas corpus just a way to ‘intimidate courts,’ ‘scare migrants’ (May 10, 2025)

– Thomas L. Root

Section 922(g) Constitutionality Gets Messier – Update for May 12, 2025

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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.

EN BANC 9TH CIRCUIT DECISION FINDS § 922(g)(1) IS CONSTITUTIONAL

The question that has loomed for thousands of federal defendants since of the Supreme Court upended decades of 2nd Amendment jurisprudence with the 2022 New York State Rifle & Pistol Association v. Bruen decision is whether 18 USC § 922(g)(1), which essentially slaps a lifetime gun possession ban on anyone with a felony conviction, remains constitutional. Second Amendment compliance of the so-called felon-in-possession statute just got more complicated, if not fractured, with last Friday’s 9th Circuit ruling in United States v. Duarte.

gunshow241018No one familiar with the 9th Circuit’s legendary anti-gun predisposition should be surprised.

Steven Duarte got pulled over in 2019 while having a gun in his car. Because he had been convicted of five prior felonies – including vandalism, evading a cop twice, possession of drugs, and a state-law felony for possessing a gun as a felon – he was charged and convicted of an 18 USC § 922(g)(1) offense. He challenged § 922(g)(1)’s constitutionality as applied to him, and a year ago, a three-judge 9th Circuit panel ruled 2-1 that after Bruen, § 922(g)(1) was unconstitutional as applied to Steve, a nonviolent felon.

The 9th Circuit, being the 9th Circuit, voted to rehear the case en banc. Last Friday, a year to the day after the 3-judge panel ruled in Steve’s favor, the en banc court (with five judges disagreeing for one reason or another) held in a 127-page opinion that the history and tradition of gun laws in America meant that § 922(g)(1) could disarm all felons consistent with the 2nd Amendment.

Back in 2008, the Supreme Court held in District of Columbia v. Heller that the 2nd Amendment conferred “an individual right to keep and bear arms” on the people. In a frenzy of obiter dicta, the Court noted, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited:”

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Two years after Heller, the Supremes repeated in McDonald v. City of Chicago that the “assurances” that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.'”

nickdanger220426The Duarte majority ran with that. Before Bruen, the 9th held in United States v. Vongxay that “[n]othing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1)” and that “felons are categorically different from the individuals who have a fundamental right to bear arms.” The en banc majority ruled last week that “Bruen did not change or alter this aspect of Heller or McDonald. Rather, Bruen and its lineal descendent, United States v. Rahimi, support Vongxay’s holding that § 922(g)(1) constitutionally prohibits the possession of firearms by felons.

First, the Bruen Court largely derived its constitutional test from Heller and stated that its analysis was consistent with Heller. Second, the Circuit said, “Bruen limited the scope of its opinion to ‘law-abiding citizens,’ evidenced by its use of the term fourteen times throughout the opinion.” The opinion lets the idea that people who have been convicted of a felony at any time in their lives can never be law-abiding citizens be inferred by the reader.

Third, the en banc 9th said, in the Bruen decision “six justices, including three in the majority, emphasized that Bruen did not disturb the limiting principles in Heller and McDonald. Finally, the Duarte ruling said, “the Bruen majority clarified that ‘nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes… Justifying this reservation, the Supreme Court explained that “shall issue” laws require background checks for the very purpose of ensuring that licenses are not issued to felons.”

deadfingers250512Following that, the Duarte court decided that because capital punishment was the penalty for many if not most felonies in colonial America and because being dead was a worse outcome than not being allowed to have a gun, permanent disarmament is consistent with everyone’s expectations at the time the 2nd Amendment was ratified. A dissenting judge referred to this as “the cold, dead fingers’ rationale.

Dissenting, Judge Lawrence VanDyke argued that given the “paradigm change in Second Amendment jurisprudence that Bruen effected,” the majority’s conclusion that the Circuit’s pre-Bruen precedent remained good law. More importantly, he recognized that the effect of the majority’s holding was to give state legislatures “unilateral discretion to disarm anyone by assigning the label ‘felon’ to whatever conduct they desire” and thus “can disarm entire classes of individuals, even absent a specific showing of individual dangerousness or propensity to violence.”

circuitsplit220516The 127-page opinion aligns the 9th Circuit with four other circuits upholding the categorical application of § 922(g)(1) to all felons, the 4th, the 8th, the 10th, and 11th. Two circuits – the 5th and 6th – have rejected “as applied” challenges like Steve’s, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons. The 3rd Circuit has held in an en banc decision that § 922(g)(1) is unconstitutional as applied to a defendant who was convicted of making a false statement to secure food stamps (not precisely a felony, but falling within the class of prohibited people defined by § 922(g)(1)). The 1st, 2nd and 7th Circuits have thus far declined to address constitutional challenges to § 922(g)(1) on the merits.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that

[t]he Supreme Court has so far dodged this issue, which has been broadly litigated since Heller was decided back in 2008 and which has generated considerably more lower court division since Bruen and Rahimi reoriented Second Amendment jurisprudence. With this latest ruling in the largest circuit, and with the Justice Department’s new efforts to restore gun rights to more persons with criminal convictions… I suspect the Justices might see even more reasons to avoid taking up this issue in the days ahead.

United States v. Duarte, No. 22-50048, 2025 U.S. App. LEXIS 11255, at *66-67 (9th Cir. May 9, 2025)

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

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

McDonald v. City of Chicago, 561 U.S. 742 (2010)

United States v. Rahimi, 602 U.S. 680 (2024)

United States v. Vongxay, 594 F.3d 1111 (2010)

Sentencing Law and Policy, En banc Ninth Circuit broadly rejects Second Amendment challenge to federal felon-in-possession prohibition (May 10, 2025)

– Thomas L. Root

A Nikola Truckload of Pardons – Update for May 9, 2025

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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.

CLEMENCY BAZAAR

Trevor Milton knew how to do it. The founder of the electric-truck maker Nikola Corp. was convicted of wire fraud in 2022 for a promotional video that purported to show its electric semi rig hauling a trailer but was really a prototype without any electroc motors that Nikola had recorded rolling downhill.

nikola250509Trevor applied for a presidential pardon, arguing that his trial was flawed by a biased juror, lousy jury instructions, and prosecutors bringing charges in the wrong venue.

Complaining about an unfair prosecution hardly separated Trevor from thousands of other federal prisoners unhappy about their convictions. But Trevor had more: he pointed out that the prosecutors were the same people who had previously investigated some of President Trump’s allies. And he prepared for seeking a pardon by donating almost $1.7 million to support Trump’s 2024 presidential campaign and hired two lawyers well-known in conservative circles to push for his pardon.

“All the effort appeared to pay off,” Bloomberg Law reported this week, when Trevor got a phone call. “[A]fter 30 seconds on hold, President Donald Trump got on the line and told Milton that he was going to grant him a full pardon.” A week later, Trump called him again to report “’[i]t’s signed. You’re cleaner than a baby’s bottom, you’re cleaner than I am, Trevor,’ Milton recalled” to Bloomberg.

The president “is effectively and responsibly using his constitutional authority,” White House spokesman Harrison Fields explained. “Over the past four years, we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.”

clemencyjack161229Some critics suggest that Trump is not righting wrongs as much as running a pardon bazaar. Gregg Nunziata, former general counsel for Marco Rubio when he was a senator and now executive director for the Society for the Rule of Law, told Roll Call that Trump’s actions are “deeply un-American.”

“From the first days in office, there has been a pattern in pardons, in personnel, in the policies of using the powers of government to reward the president’s friends and allies and punish his perceived enemies,” Nunziata said. “That is the rule of a man out for his own interest and that is an assault on the full protection of the law and notions of fair play that our society, our country, depend on.”

As for its role, the Dept of Justice – which is without a Pardon Attorney since the firing of Elizabeth Oyer over the Mel Gibson gun flap two months ago – is “committed to timely and carefully reviewing” all clemency applications and making unbiased, consistent recommendations to the president, according to a DOJ statement.

Milton said he filed for clemency with the DOJ Pardon Attorney in January. Bloomberg reported, however, that the pardon didn’t follow the normal DOJ review process.

President Joe Biden set a record for granting clemency during his term, handing out over 4,000 commutations but only about 80 pardons. The commutations went overwhelmingly to federal prisoners and people who fell within classes of convictions – primarily for marijuana possession – or for CARES Act home confinees. Biden received widespread and bipartisan criticism for preemptively pardoning his family and allies to prevent Trump from going after them criminally.

obtaining-clemencyTrump, on the other hand, has set a presidential record for granting pardons – 1,590 and counting – starting with the January 6th Capitol rioters and then expanding to include white-collar defendants, cryptocurrency entrepreneurs, and anti-abortion activists. Pardon recipients include “numerous others who praised him or served as a witness against political rivals, including former Illinois Gov. Rod Blagojevich… He also pardoned Devon Archer and commuted the sentence of Jason Galanis, former business partners of Hunter Biden who served as witnesses in the House probe against the former president,” Roll Call reported yesterday.

Trump has even extended his pardon efforts beyond the limits of presidential authority (which does not extend to pardons for state offenses). He posted on TruthSocial Monday night that has directed DOJ “to take all necessary action to help secure the release” of Tina Peters, a former Colorado local election clerk in Colorado who was sentenced to nine years in state prison last fall for her role in a voting system data breach, a failed attempt to find voter fraud from the 2020 election.

Last March, DOJ filed a statement of interest in Peters’ pending 28 USC § 2254 habeas corpus case pending in US District Court for the District of Colorado. The post-conviction action seeks federal review of the constitutionality of her state conviction. The DOJ claims that it is concerned about Peters’ health and allege that “[r]easonable concerns have been raised about various aspects of Ms. Peters’ case.”

The pace of Trump’s pardons eclipses the president in second place, Bill Clinton (396 pardons in eight years) and in the process has fostered a “breakdown in the traditional vetting process for deciding who gets relief and supercharged a pardon economy unlike anything seen before,” as Bloomberg put it.

As a result, people who can afford it are spending big to get their applications in front of Trump, devoting tens of thousands of dollars to fees for attorneys, lobbyists and consultants on the pardon process.

money160118“There’s a huge level of interest,” said  Margaret Colgate Love, who served as the US Pardon Attorney during the Clinton years and now represents clemency clients. “People think Trump is going to do something for them.”

Presidents from both parties have long used their authority to circumvent official process and dole out pardons to friends and supporters. The constitution puts almost no limits on the practice, though leaders typically wait until the end of their tenure to award clemency. Trump has announced clemency grants on a dozen occasions since he took office three months ago.

All of this is not good news for the ordinary federal defendant, let alone a prisoner who can afford a donation of several Honeybuns and a couple of soups to the Trump campaign. “It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” Oyer told Bloomberg.

A White House spokesman said Trump would work with the administration’s pardon czar, Alice Marie Johnson, to “continue to provide justice and redemption to countless deserving Americans.” Those with fat wallets and MAGA hats, that is.

Bloomberg Law, Lawyers Are Quoting $1 Million Fees to Get Pardons to Trump (May 7, 2025)

Roll Call, Pardons for friends, retribution for foes (May 7, 2025)

Democracy Docket, Trump Orders DOJ to ‘Secure the Release’ of Convicted Election Denier Tina Peters (May 6, 2025)

– Thomas L. Root

Escape From Alcatraz Fixation – Update for May 8, 2025

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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 Federal Bureau of Prisons is an agency with too little money, a $3 billion backlog of infrastructure repair needs, 4,000 fewer employees than needed, 143,000-plus prisoners in BOP facilities, and utterly chaotic management.

So what does the agency need more than anything right now? How about a mandate to rehab a prison with a 300-inmate capacity that was shut down for being too costly some 62 years ago.

intentions250508What a great idea! What could possibly go wrong?

In what the Associated Press called “a stunning directive from President Donald Trump,” the BOP was told in a Truth Social tweet last Sunday night to “REBUILD, AND OPEN ALCATRAZ!” — the legendary federal penitentiary that still stands on an island in San Francisco 62 years after it last imprisoned an inmate.

“Even as the Bureau of Prisons struggles with short staffing, chronic violence and crumbling infrastructure at its current facilities,” AP reported on Monday, “Trump is counting on the agency to fulfill his vision of rebooting the infamously inescapable prison known in movies and pop culture as ‘The Rock.’”

Alcatraz, the island located off the coast of San Francisco, was closed as a prison in 1963 and has since been turned into a museum run by the National Park Service, a tourist attraction generating about $6 million in revenue annually. The BOP closed the prison after determining that an estimated $3-5 million was needed just for restoration and maintenance work to keep the facility open. That’s $31-52 million in 2025 dollars, and that doesn’t account for deterioration over the past 62 years since closure.

The number also did not include daily operating costs. The BOP says Alcatraz was nearly three times more expensive to operate than other prisons. In 1962, BOP Director James Bennett said it was not an “economically sound policy” to invest millions of dollars to rehab Alcatraz. Housing an inmate in Alcatraz costs more than three times what it costs in Atlanta.

alcatraz250508On its website, the BOP says: “The major expense was caused by the physical isolation of the island – the exact reason islands have been used as prisons throughout history. This isolation meant that everything (food, supplies, water, fuel…) had to be brought to Alcatraz by boat. For example, the island had no source of fresh water, so nearly one million gallons of water had to be barged to the island each week.” Add to that staff costs: in San Francisco, federal pay would be adjusted for the sky-high cost of living in the Bay Area, which ranks 7th out of 9,294 metro areas on earth.

The BOP already has a “supermax” facility, ADMAX Florence, holding 354 inmates and 13 penitentiaries that together imprison over 17,200 high-security inmates. Alcatraz never even held its capacity of 336 inmates. 

At no time has the BOP argued it needs more high-security or ADMAX beds. In fact, the BOP’s sole new facility in the planning stages is a new medium-security prison in Letcher County, Kentucky.

None of the economics or agency needs analysis matters to President Trump. Rather, his idea to reopen Alcatraz is a reflection of his political instincts and personal tastes, even as it is a long shot to come to fruition.

Trump’s suggestion that Alcatraz could once again be a penitentiary for hardened criminals highlights both his efforts to project a tough-on-crime image and his fondness for cultural symbols of past generations:

violent160620“For too long, America has been plagued by vicious, violent, and repeat Criminal Offenders, the dregs of society, who will never contribute anything other than Misery and Suffering,” Trump wrote on Truth Social. “When we were a more serious Nation, in times past, we did not hesitate to lock up the most dangerous criminals, and keep them far away from anyone they could harm. That’s the way it’s supposed to be.”

Trump’s nostalgia may be misplaced. He was recalling a time (1961) when the nation was incarcerating 119 people per 100,000 population. By last year, the state and federal government were locking up almost five times that number, 531 people per 100,000 population, the 6th highest rate in the world.

The facts are irrelevant. What matters is that Trump thinks Alcatraz is symbolic, that “it represents something. Right now, it’s a big hulk that’s sitting there rusting and rotting,” he told reporters. “It sort of represents something that’s both horrible and beautiful, and strong and miserable. Weak. It’s got a lot of qualities that are interesting.”

When Trump was asked what inspired him to reopen Alcatraz, he said, “Well, I guess I was supposed to be a moviemaker.”

Newly minted BOP Director William K. Marshall III promptly issued a statement enthusiastically supporting Trump’s call. He promised that the BOP “will vigorously pursue all avenues to support and implement the President’s agenda.

“I have ordered an immediate assessment to determine our needs and the next steps,” Marshall said in the statement. “USP Alcatraz has a rich history. We look forward to restoring this powerful symbol of law, order, and justice.”

williammarshall250508Good luck with that, Bill. The BOP needs $3 billion for infrastructure repair. It asked Congress for $260 million for Fiscal Year 2025. It got $179 million. Of the $3 billion needed to repair existing BOP facilities, Walter Pavlo wrote in Forbes last fall, “Spending at these levels is simply not going to happen.”

Earlier this year, BOP issued a memorandum to senior leaders that it had to take on more than $400 million in new expenses — due to a government-wide 5.2% pay increase for employees and inflation — without receiving any additional funding to cover it. While the agency said it should prioritize hiring, a corrections officer and union representative told Government Executive in October that workers “are leaving in droves” and “running from this agency” because of job strain.

Six weeks ago, the BOP cut all retention bonuses, meant to stop the loss of staff, especially correctional officers.

It doesn’t much matter what Billy says the BOP will “vigorously pursue.” The BOP is a NASCAR driver punching the accelerator on a car that’s out of gas.

Corene Kendrick, ACLU National Prison Project deputy director, dismissed Trump’s Alcatraz statement as a “stunt.” She told the Guardian, “I don’t know if we can call it a ‘proposal’, because that implies actual thought was put into it. It’s completely far-fetched and preposterous, and it would be impossible to reopen those ancient, crumbling buildings as anything resembling a functioning prison.”

policestate190603The Los Angeles Times warned that “it’s easy, as many quickly did, to write off this push to spruce up and fill up America’s most notorious prison-turned-national park as just bloviating or distraction. But like the sharks that circle that island in the Bay, the real danger of the idea lurks beneath the surface… Trump in recent weeks has moved to undo years of criminal justice reform. He is making changes that increase police power, signaling a push to refill federal prisons and detention centers with Black and brown people and curbing the ability of those impacted to seek redress in courts.”

The Times argued that reopening Alcatraz as a prison “is nostalgia for an America where power ran roughshod over true justice, and police were an authority not to be questioned — or restrained.”

Associated Press, The federal Bureau of Prisons has lots of problems. Reopening Alcatraz is now one of them (May 6, 2025)

The Hill, Trump’s call to reopen Alcatraz faces ‘daunting’ challenges (May 5, 2025)

NBC News, Trump’s call to reopen Alcatraz as a prison could be stymied by roadblocks (May 5, 2025)

The Guardian, Not just Alcatraz: the notorious US prisons Trump is already reopening (May 6, 2025)

BOP, The Rock

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2025)

Los Angeles Times, The real threat behind reopening Alcatraz (May 5, 2025)

– Thomas L. Root