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Federal Judge Blocks New BOP Transgender Policy – Update for June 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.

JUDGE BLOCKS BOP TRANSGENDER ORDER FOR NOW

The Supreme Court yesterday handed down three cases of interest to prisoners and their families, and a District of Columbia judge laid the leather to a class action against the Federal Bureau of Prison’s handling of FSA credits. All of that must wait until the weekend for me to digest and write about. For now, I have a decision to write about from last week, in which a federal judge ruled that the BOP cannot withhold gender-transition medical care from inmates identifying as transgender.

Under an Executive Order that President Trump signed on January 20th, the BOP was ordered to withhold any accommodations – from surgery and hormone therapy to access to gender-specific underwear and other commissary items – previously provided to inmates identifying as transgender.

In a 36-page-opinion, US District Judge Royce C. Lamberth (U.S. District Court for the District of Columbia) granted a preliminary injunction against enforcement of the Executive Order and assigned class-action status to the lawsuit, brought on behalf of an estimated 1,028 BOP inmates who are diagnosed with gender dysphoria, a disorder caused by a mismatch between their assigned gender and their perceived gender. The preliminary injunction will remain in place while attorneys for the ACLU and the Transgender Law Center pursue a lawsuit challenging Trump’s executive order.

The Judge wrote that BOP rules adopted in response to the Executive Order seemed likely to be found to be “arbitrary and capricious” in violation of 5 USC § 702(6) and the 8th Amendment. The judge ordered the BOP to continue providing hormone therapy to transgender people as needed, and to restore access to social accommodations such as hair removal, chest binders and undergarments. “The BOP may not arbitrarily deprive inmates of medication or other lifestyle accommodations that its own medical staff have deemed to be medically appropriate,” he wrote.

The ACLU and the Transgender Law Center filed the suit on behalf of one trans woman and two trans men, but the judge made it a class action representing any person incarcerated in federal prison who now needs, or who may in the future need, access to gender-affirming care.

Memorandum Opinion (ECF 67), Kingdom v. Trump, Case No 1:25cv691 2025 U.S. Dist. LEXIS 105237, (D.D.C., June 2, 2025)

Washington Post, U.S. judge halts Trump ban on treatment for 1,000 transgender prisoners (June 3, 2025)

– Thomas L. Root

“Factual Predicate” is For Another Day – Update for June 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.

SCOTUS LETS 2244 “FACTS VERSUS CLAIMS” CIRCUIT SPLIT FESTER

What the Supreme Court did not do last Friday is nearly as interesting as what it did do.

As anyone who has pursued a post-conviction motion under 28 USC § 2255 knows, the law does its best to limit such petitions to one to a customer. Bringing a second or successive § 2255 motion is limited by 28 USC § 2244(b) to cases where the Supreme Court has declared a statute unconstitutional or where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.”

But what is the meaning of the term “factual predicate?” Some circuits have held that a factual predicate is the underlying fact that the claim is about. Others have held that a factual predicate includes evidence that supports a previously unavailable claim.

In the 1st, 2nd, 3rd, 5th, 7th, 8th, 10th and 11th Circuits, the claim itself has to be new. Up to last year, only the 9th Circuit had held that new evidence supporting a claim that has always been available is enough.

Kayla Ayers was convicted of arson under Ohio law in 2011 based in part on testimony from an expert hired by the State that the fire that consumed her house started at two different corners of a mattress at the same time (which pretty much proved that it was deliberately set). In the years since her conviction, she maintained her innocence but could not afford to hire her own expert to make her case. In 2019, the Ohio Innocence Project agreed to take on her case and paid for a real arson pro who made mincemeat of the State’s expert testimony.

The state courts said she was too late with her new evidence, as did the federal district court when she filed a 28 USC § 2254 petition (a § 2254 is like a § 2255 motion, but for state prisoners seeking federal review of a state post-conviction decision). When Kayla appealed to the 6th Circuit, however, the appeals court concluded that the new expert report was precisely the kind of “factual predicate” that would justify allowing her to file her petition for post-conviction relief even after the one-year statute of limitations had run, reasoning that she could not have “discovered” it earlier due to not being able to afford to hire an expert until the Innocence Project agreed to bankroll her.

The State of Ohio asked the US Supreme Court to reverse the 6th Circuit and settle the circuit split. Last week, after relisting the State’s certiorari petition three times, the Supremes refused to review the case.

This does not mean that SCOTUS agrees with the 6th’s position that new evidence about an old claim is enough to constitute a new “factual predicate” under § 2244(b). It could be the majority of justices agreed that there was a reasonable probability Kayla would have been acquitted if the new evidence had been available. Possibly, the reason for denial was that Kayla had already served all of her time and was at home (presumably without any matches in the house).

But the broad definition of “factual predicate” for purposes of the timeliness of Kayla’s petition (§ 2244(d)(1)(D) applies equally to “factual predicate” in 2244(b)(2)(B) covers federal prisoners seeking permission to bring a late § 2255 as well. With the 6th‘s Ayers decision now binding, federal prisoners in that circuit have a much broader means of getting back into court for a second § 2255 motion.

Chambers-Smith v. Ayers, Case No 24-584 (certiorari denied June 6, 2025)

Ayers v. ODRC, 113 F4th 665 (6th Cir. 2024)

– Thomas L. Root

‘A Uniform Change Away’ – Former BOP Inmate Now BOP Deputy – Update for June 10, 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.

FORMER BOP INMATE NOW BOP DEPUTY DIRECTOR

Some cynical Bureau of Prisons inmates have quipped before that certain BOP employees are “only a uniform change away” from being inmates, an aphorism occasionally proven by convictions of BOP staff for sexual abuse of inmates, bribery, introducing contraband, or general mayhem.

Last week, the cliché was turned on its head… but in a very good way. Joshua J. Smith, a former federal inmate who President Trump pardoned in 2021 for drug trafficking crimes committed more than two decades before, just swapped prison khakis from 20 years ago for a suit and corner office as the BOP’s Deputy Director.

Yeah, I know… a Trump pardon based on merit. That alone is amazing. But who would have ever predicted that someone would be involved with the BOP on both sides of the fence?

Last Thursday, BOP Director William K. Marshall III announced that he was naming Smith, a Tennessee businessman who founded inmate advocacy and rehabilitation nonprofit Fourth Purpose Foundation, as his second in command.

“Josh brings to this role something our agency has never had before at this level, a perspective shaped by lived experience, proven innovation and national impact,” Marshall said in a staff memo. “His firsthand understanding of our facilities — of the tension, the risk and the importance of trust — makes him uniquely positioned to advocate for the resources and reforms front-line staff need to do their jobs safely and effectively.”

Smith entered the BOP as an inmate “at age 21 as an 11th-grade dropout with no plans to exit it any differently than how he entered,” Walter Pavlo wrote in Forbes last week. Smith served five years at FCI Manchester, Kentucky, being released in 2003.

The Fourth Purpose website says Smith “saw the system from the inside, its challenges, its blind spots, and its unrealized potential. While incarcerated, something began to shift. He found faith, discipline, and most importantly, he found a sense of purpose. For Josh, prison wasn’t just a consequence, it became a transformative experience. When he was released in 2003, he walked out determined not to waste a second chance he had been given. He created a plan to stay out of the system. But that sense of purpose followed him. Reentry wasn’t easy, but it shaped his empathy. It helped him understand the barriers people face on the outside and planted the seed of a deeper mission.”

When he was pardoned in January 2021, a Knoxville TV station reported, “Smith started a multi-million dollar company and a non-profit to help former inmates transform their lives.” The residential service company he started, Master Service Companies, grew into a $30 million enterprise with more than 180 employees, many of whom were ex-offenders.

Rabbi Moshe Margaretten, President of the nonprofit Tzedek Association, told Pavlo, “Director Marshall couldn’t have made a better choice. Josh Smith brings a deep moral clarity and transformative vision to the Bureau — grounded in lived experience and a passion for redemption and human dignity. His leadership on reentry is exactly what this moment demands.”

Pavlo wrote, “Smith realizes that real change is only going to occur if he has buy-in from the staff and that may be a challenge. Former Director Colette Peters, also an outsider to the BOP, found change difficult though she did manage to improve hiring and made a number of strides in implementing the First Step Act.”

Nevertheless, Pavlo cheered Smith’s appointment. “The BOP needs change and they need reform. Nothing says reform louder than bringing in someone like Josh Smith who has seen life on both sides of the fence.”

NBC, Former federal inmate pardoned by Trump tapped as Bureau of Prisons deputy director (June 6, 2025)

WBIR-TV, Knoxville businessman Josh Smith awarded Presidential Pardon (Jan 20, 2021)

Forbes, Meet Joshua Smith, New Deputy Director of Bureau of Prisons (June 6, 2025)

– Thomas L. Root

Supreme Court to Review Two More Compassionate Release Cases – Update for June 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.

COMPASSIONATE RELEASE ON DECK AT SUPREME COURT

In an unusual Friday evening order, the Supreme Court last week granted review of two more compassionate release cases, perhaps adding them to the one compassionate release case already on its docket for next fall or maybe issuing two separate decisions interpreting 18 USC § 3582(c)(1)(A) in the same Term.

Two weeks ago, the Court granted review to Fernandez v. United States, a case asking whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also be grounds for setting aside a sentence under 28 USC § 2255.

On Friday, the Court added Rutherford v. United States and Carter v. United States to the docket. The two cases are consolidated in one proceeding. Whether Fernandez will become part of that decision or become its own opinion has not yet been announced.

Rutherford and Carter ask whether in adopting new Guideline 1B1.13(b)(6), effective in November 2023, the Sentencing Commission exceeded its authority. That Guideline directs that a change in the law that means a prisoner’s current sentence could no longer be imposed–along with other factors–can be an “extraordinary and compelling reason” for compassionate release under the statute.

In one of the cases, defendant Daniel Rutherford committed two robberies using a gun in over a 5-day period. Using a gun in two robberies netted Dan two convictions for using a gun in a robbery (a violation of 18 USC § 924(c)). He was sentenced to 32 years for the two § 924(c)s, seven years for the one and 25 years for the second.

If Daniel had been sentenced after the First Step Act passed, he would have received a 14-year mandatory minimum for his two 18 USC 924(c) convictions, seven apiece. First Step amended § 924(c) to clarify that the 25-year sentence for a second conviction only applied after a defendant had been convicted of  § 924(c) once already. But before First Step, courts held that if a second § 924(c) was committed even a day after the first one, the 25-year minimum applied to the second one.

In the second case, Johnnie Carter, convicted of multiple bank robberies in 2007, argued that if he had been sentenced after First Step, he would have 21 years of mandatory time instead of the 70 years he is serving.

The Sentencing Commission’s enabling law directs it to define what constitutes an “extraordinary and compelling reason” for compassionate release. Nevertheless, some circuit courts have held that because the First Step Act changed § 924(c) but did not do so retroactively, the Commission exceeded its authority in making the disparity due to those changes in the law an element of compassionate release.

The 1st, 4th, 9th and 10th Circuits have OK’d allowing courts to consider the changes. The 3rd and 11th have gone the other way. Just a month ago, the 6th Circuit joined the naysayers, ruling in United States v. Bricker that adoption of § 1B1.13(b)(6) exceeded the Commission’s authority.

It does not overstate the case to say that SCOTUS’s holdings in Fernandez, Rutherford and Carter will define the future of compassionate release. The cases won’t be argued until late next fall or in early 2026, with a decision due by about a year from now.

Rutherford v. United States, Case No. 24-820 (Supreme Ct, petition for cert granted June 6, 2025)

Carter v. United States, Case No. 24-820 (Supreme Ct, petition for cert granted June 6, 2025)

Fernandez v. United States, Case No. 24-556 (Supreme Ct, petition for cert granted May 27, 2025)

United States v. Bricker, Case No 24-3286, 135 F.4th 427 (6th Cir. Apr 22, 2025)

Courthouse News Service, Justices take on sentencing reform issues, IQ tests for disabled facing death row (June 6, 2025)

– Thomas L. Root

Streamlining How To Get The Horse to Water – Update for June 5, 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.

BILL INTRODUCED TO SPEED BOP CORRECTIONAL OFFICER HIRING

job210830Representatives Glenn Grothman (R-WI) and Elise Stefanik (R-NY) last month reintroduced the BOP Direct-Hire Authority Act (H.R. 3342), 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.

Stefanik is chair of the House Republican Leadership Committee.

“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.

horsetowater250606Streamlining the process to hire correctional officers does not alter the desireability of the BOP as a career path. The agency continues to rank at the bottom of federal agencies as an employer, putting up dismal marks on quality of leadership, pay, recognition, and work-life balance. Leading the horse to water could get easier with passage of the BOP Direct-Hire Authority Act, but no one is floating any ideas on how to make the horse drink.

In an unrelated but dramatically illustrative example of the problem, the BOP employees union at FCI Phoenix last week bought a billboard ad near the prison demanding that the warden and regional director be fired.

FCIPhoenix250605The Arizona Republic reported that American Federation of Government Employees Local 3954 has accused prison leadership of failing to protect the lives of the people who work in the prisons.

H.R. 3342, BOP Direct-Hire Authority Act

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

Arizona Republic, Phoenix federal prison union members call for warden, regional director to be removed (June 3, 2025)

– Thomas L. Root

The Wild, Wild West Wing – Update for June 3, 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.

TRUMP MANAGES TO MAKE CLEMENCY EVEN CRAZIER

wildwildwestwing250603The rolling waves of pardons and commutations emanating from the White House seem like good news to federal prisoners, who are filing clemency petitions to get in on the frenzy. Think Robinhood investors piling into a meme stock…

Over the past several weeks, President Donald Trump has issued a wave of pardons and sentence reductions to dozens of people. That’s good news. The bad news is that the recipients of Trump’s largesse are largely political allies, campaign donors, law enforcement officials, and Republican politicians.

I won’t try to recount them all, people from crooked cops to digital dope peddlers to gang bangers to celebrity fraudsters. Even George Floyd murderer Derek Chauvin and accused sex monster and rapper Sean ‘Diddy’ Combs are being talked about as candidates for Trumpian clemency largesse. Instead, I’ll look at the lessons to be derived from the freedom frenzy:

The three sure-fire ways to get clemency from this Administration are (1) to be a rabid Trump supporter, (2) to have millions to spend, or (3) to know someone who knows someone who knows someone in Trump’s inner circle.

clemencypitch180716For more than a century, career civil servants led the Dept of Justice Office of Pardon Attorney, evaluating clemency petitions based on legal and humanitarian criteria that were criticized for the glacial review pace, too much DOJ input, and opaque and sometimes inconsistent decisions. But now, newly appointed Pardon Attorney Ed Martin, a vigorous MAGA partisan, “has begun turning the office into a new pipeline for political allies to get their cases in front of Trump,” the Wall Street Journal reported last week.

Martin unabashedly described his pardon approach last week on X: “No MAGA left behind.”

Martin said he is working closely with Alice Johnson, the White House pardon czar whom Trump pardoned of drug offenses during his first term. That’s good news. The bad news is Martin’s approach: “The message should be clear that we’re sticking by people that do good things and the right things.”

MAGAhat250603Martin’s first pardon recommendation, adopted by Trump last week, was Scott Jenkins, the former sheriff of Culpeper County, Virginia. Jenkins was to report to prison last week after being convicted of selling no-show auxiliary sheriff’s deputy positions for over $75,000 in bribes. The evidence included videos of the sheriff accepting bags of cash and testimony of some of the people who bought the badges. He was sentenced to 120 months.

But as the Bulwark explained last week, “Jenkins was a rabidly anti-immigrant, pro-Trump sheriff who’d become a minor celebrity in MAGA world. Trump himself may not have known of him, but Ed Martin did… Martin celebrated his achievement just after the pardon: ‘Thank you, President Trump! I am thrilled that Sheriff Jenkins is the first pardon since I became your Pardon Attorney.’”

For those not connected to MAGA, seeking clemency “has become big business for lobbying and consulting firms close to the administration, with wealthy hopefuls willing to spend millions of dollars for help getting their case in front of the right people,” a lobbyist told NBC News. “From a lobbying perspective, pardons have gotten profitable.”

pardonsale210118Two people directly familiar with proposals to lobbying firms said they knew of a client who’d offered $5 million to help get a case to Trump. “Cozying up to a president’s allies or hiring lobbyists to gain access to clemency isn’t new,” NBC said. “But along with the price spike, what’s different now is that Trump is issuing pardons on a rolling basis — rather than most coming at the end of the administration.”

“It’s like the Wild West,” a Trump ally and lobbyist said. “You can basically charge whatever you want.”

But what about Alice Johnson, appointed as Pardon Czar to bring worthy clemency candidates to President Trump? Is that working?

Alice apparently was instrumental in bringing reality TV stars and celebrity whiners Todd and Julie Chrisley to Trump for full pardons of their bank and tax fraud convictions. Todd stayed in the headlines for the 24 months he served of his 12-year sentence by claiming, among other things, that FPC Pensacola was “literally” starving inmates to death, that the prisoners were forced to live in filth and eat contaminated food, and that he “feared for his life.”

“I know not only their stories, but I make sure that I’m selecting people who have either been rehabilitated, who pose no safety risk, and also we look at cases where there has been obvious weaponization against these individuals,” Alice Johnson told NewsNation Now. She was quoted in Eonline as saying “The celebrity part really didn’t play a role in this… These are everyday Americans who deserve a second chance,” she continued. “I’ve really been looking at those who pose no safety risk, don’t have victims of violent crimes. These people need to be returned to their families. They really get a chance to have a second shot at life.”

money170419A month ago, Trump pardoned Paul Walczak, a former nursing home executive sentenced to 18 months in prison and ordered to pay more than $4 million in restitution for tax crimes. The pardon came after Walczak’s mom, a GOP donor, Walczak’s pardon has received attended a $1-million-per-person fundraising dinner at Mar-a-Lago, the New York Times reported.

Even some of the people who are not rich or famous are lucky enough to get in on the act. An “everyday American” prisoner who was not a Chrisley but received clemency last week was serving a 50-year sentence for healthcare fraud. One of his co-defendants, however, had been Alice Johnson’s cellie at FCI Aliceville. Alice got her sprung in 2020. Five years later, the co-defendant lobbied Alice to get him out, too.

I helped him with his clemency petition a few years ago, a 100-page tome. No doubt he deserved clemency but no more or less than countless others whose conspiracies did not include someone who became Alice’s cellmate.

clemencytornado250603Ultimately, it’s depressing. Clemency has always been like a tornado tearing through a neighborhood, taking some lucky inmates seemingly at random while leaving others in their bunks to serve out their time. Now, there isn’t even a randomness factor anymore, a sense among prisoners that maybe, despite the ordinariness of their offense or their families’ quotidian circumstances, they may be the beneficiaries of a Presidential act of grace.

Now, it’s all about loyalty, wealth, connections.

We’re in a different clemency world than ever before, but the average federal inmate is further from fair consideration than ever.

CNN, ‘No MAGA left behind’: Trump’s pardons get even more political (May 28, 2025)

NBC, Trump pardons drive a big, burgeoning business for lobbyists (May 31, 2025)

Washington Post, Trump’s clemency spree extends to ex-gangster, rapper, former congressmen (May 29, 2025)

The Bulwark, Trump’s Dangerous Pardon Power (May 27, 2025)

Pensacola News Journal, Todd Chrisley served sentence at Pensacola Federal Prison Camp before pardon. What to know (May 28, 2025)

New York Times, Trump Pardoned Tax Cheat After Mother Attended $1 Million Dinner (May 27, 2025)

– Thomas L. Root

Things Are Seldom What They Seem – Update for June 2, 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 OL’ SWITCHEROO

buttercup250602Unless you’re my age (and I am not telling you what that age might be), you’re probably not familiar with Gilbert and Sullivan’s light opera, 19th-century musicals that parodied British life. In H.M.S. Pinafore – perhaps their best-known work – low-class Buttercup pines for the high-born captain of the Royal Navy warship HMS Pinafore. At one point, she tries to hint to the Captain that despite their difference in societal status, they might be able to hook up.

She sings,

Things are seldom what they seem, skim milk masquerades as cream, black sheep dwell in every fold, all that glitters is not gold…

Remember two months ago, when the BOP said no one would get more than 60 days of Second Chance Act halfway house time, only to recant a week or so later? It seemed that the problem had been solved. Unfortunately, as the Bureau of Prisons proved last week, the fix was illusory, as “storks turn out to be but logs” or “Bulls are but inflated frogs.”

A new BOP memorandum issued last week at first seemed to be a wonderful expansion of home confinement, but it in fact strips away SCA rights from prisoners who have been serving the longest sentences.

We have not seen the memo, just a press release. The release provides that home confinement will be “a priority for individuals who are eligible and do not require the structured support of an RRC. RRC placement will be reserved for those with the greatest need.” What’s more, unit teams are directed to “use FSA and SCA Conditional Placement Dates—based on projected Earned Time Credits (FTCs) expected to earn—to guide prerelease planning and ensure accurate and timely referrals.”

More home confinement? Great news, right?

Not really. The new policy does not expand the BOP’s authority to place people on home confinement by even one day. Ever since 2008, the BOP has had the authority to place inmates in home confinement for the final 10% of their sentences (up to a maximum of 6 months) under 18 USC § 3624(c)(2). Six years ago, the First Step Act amended § 3624(c)(2) to direct that the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

Just like Dorothy always had the power to go back to Kansas, the BOP has had the power to send prisoners to home confinement.
Just like Dorothy always had the power to go back to Kansas, the BOP has had the power to send prisoners to home confinement.

However, none of the BOP’s authority meant much up to now. BOP staff largely did not send people directly to home confinement. It was easier to send them to halfway house and then let the halfway house send them on to home confinement and do the monitoring. The halfway houses were glad to do it, because it freed up a bed they could sell for another inmate, and they still got some payment for the inmate they were continuing to monitor.

Suddenly, the BOP has figured out that it can better use the limited number of halfway house beds it has under contract (and save money) by sending low-risk inmates directly to home confinement. It’s the right call, but it doesn’t expand the availability of home confinement one bit. The BOP has no more power to put people on home confinement today than it had a week ago, a month ago, a year ago, or even as of December 21, 2018.

What’s worse is what the memo does NOT say. On Saturday, Walter Pavlo reported in Forbes that “[w]hen asked whether inmates are still eligible for Second Chance Act placement up to 12 months prior to their FSA conditional placement date, as has been the case, the BOP responded, ‘Due to statutory restrictions found in 18 U.S.C. § 3624(c)(1), an individual who has earned 365 days (12 months) of First Step Act credits to be applied to prerelease custody cannot receive additional prerelease time under the Second Chance Act.’”

This means that no one with 730 or more FSA credits will get any SCA halfway house or home confinement. Pavlo wrote, “The BOP’s current stance contradicts its position from just a few months ago, when it stated that stacking First Step Act and Second Chance Act benefits was permissible. Now, without addressing its previous position, the BOP asserts that home confinement under the Second Chance Act is only allowed by law during the final 12 months of a prison sentence.

home210218Additionally, the BOP claims that home confinement under the First Step Act can only be applied when the First Step Act time credits earned are equal to the remaining length of the prison term. This means an inmate cannot apply First Step Act credits to home confinement while also receiving up to 12 months of prerelease custody (6 months in a halfway house and 6 months in home confinement) under the Second Chance Act. For many inmates, this change means they will have to remain in prison for up to a year longer than they had initially expected.”

In the press release, BOP Director William K. Marshall III boasted that “President Trump said he would fight for the forgotten men and women of this country, and the First Step Act proved he meant it. Now, we are ensuring that this reform continues to work—not just as a policy, but as a promise to Americans seeking redemption and a path forward.”

BOP Press Release, Federal Bureau of Prisons Issues Directive to Expand Home Confinement, Advance First Step Act (May 28)

Forbes, Prisoners Set Back By Bureau Of Prisons Home Confinement Expansion (May 31)

– Thomas L. Root

A Pair and a Half of Shorts – Update for May 30, 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.

Today, some shorts… just in time for warm summer weather.

shorts250530

SUMMER’S HERE – TIME FOR SOME SHORTS

Shocking News: BOP Healthcare Found Deficient – A report issued last week by the Dept of Justice Inspector General found that the BOP has failed to screen over a third of at-risk inmates for colorectal cancer (CRC). Between low screening offers and inmate refusals, less than half of average-risk inmates had a completed annual CRC screening.

healthbareminimum220603What’s more, out of a sample of 327 inmates, the IG found that around 10% had no documented follow-up after testing positive for CRC. Also, the Report found, the BOP lacked timeliness metrics for access to a colonoscopy for inmates with a positive CRC screening. The IG reported that “inmates in our sample waited an average of 8 months between a positive CRC screening and a colonoscopy.”

During the period covered by the Report, there were about 38,000 federal inmates who fell in the age range and “average risk” level for CRC. About 13,600 of them were not offered a screening, according to the Report.

BOP Director William K. Marshall III took time from being excited about a billion-dollar rebuild of Alcatraz (see below) to blame “longstanding staffing issues” for compromising efforts to screen inmates for colorectal cancer in certain facilities.

DOJ Inspector General, Evaluation of the Federal Bureau of Prisons’ Colorectal Cancer Screening Practices for Inmates and Its Clinical Follow-up on Screenings (Report 25-057, May 20, 2025)

Washington Post, Prisons bureau failed to screen inmates for colorectal cancer, watchdog says (May 20, 2025)

shorts250530

Sentencing Commission Releases 922(g) Data: About 7,500 people are convicted every year for 18 USC § 922(g) offenses, the US Sentencing Commission reported last week.

funwithnumbers170511The USSC said men accounted for 98% of all convictions, with 58% of them being black, 21% white and 17% Hispanic. The average age for defendants at conviction was 36 years old.

The defendants were overwhelmingly US citizens (95%). About 24% were Criminal History Category III and another 24% fell into Criminal History VI (the highest category).

USSC, Section 922(g) firearm offenses (May 22, 2025)

shorts250530

BOP Director Calls Rebuilding Alcatraz “Exciting Opportunity”: BOP Director William K. Marshall III, who has less than $200 million in his FY 2025 budget to make $3 billion in infrastructure repairs to existing prisons, told Fox News a week ago that his team is actively exploring the possibility of reopening Alcatraz, the 330-bed penitentiary on an island in San Francisco Bay.

excited250530Marshall called the project – a late-night idea President Trump hatched late on his inaptly-named “Truth Social” site a month ago – an “exciting opportunity” and one that aligns with the Trump administration’s law-and-order priorities.

Last week, KTVU-TV reported that estimates to make the repairs needed to reopen Alcatraz as a prison are close to $1 billion, plus another $40 million to $100 million a year in maintenance.

Corrections1, BOP director: Reopening Alcatraz is an ‘exciting opportunity’ (May 23, 2025)

KTVU, Bureau of Prisons director ‘excited’ about reopening Alcatraz as max-security prison (May 23, 2025)

– Thomas L. Root

Former BOP Officials Support Supreme Court Compassionate Release Petition – Update for May 29, 2025

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FORMER BOP OFFICIALS SUPPORT COMPASSIONATE RELEASE CERTIORARI

scotus161130A month ago, I reported that the 6th Circuit ruled that USSG § 1B1.13(b)(6), the compassionate release guideline subsection that lets courts consider overly long sentences that could not be imposed under current law, exceeded the Sentencing Commission’s authority. Several other circuits have held the same, notably the 3rd Circuit in United States v. Rutherford.

Rutherford is now before the Supreme Court on a petition for certiorari. The Justices have already relisted the case for more consideration (usually an indication that it is getting a serious look) at tomorrow’s conference.

Evidence of the Court’s interest came in Tuesday’s announcement that the Court would review a related issue, Fernandez v. United States. The issue in that case is whether whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also grounds for setting aside a sentence under 28 USC § 2255, the federal habeas corpus statute that can be used to attack the constitutionality of a conviction or sentence.

We'll see about that...
We’ll see about that…

In Fernandez, a district court granted the prisoner a “compassionate release” for reasons that included the court’s belief that there was substantial evidence that he was actually innocent of the murder and that his sentence was disparately long compared to those of his co-defendants (who became informants). The 2nd Circuit reversed (and ordered Joe back to prison), holding that factors that would work for a § 2255 motion could not be relied on for § 3582(c)(1)(A) compassionate release.

The Circuit’s holding was contrary to decisions of the First and Ninth Circuits, which have each held that district courts are not restricted from considering matters under 18 USC § 3582(c)(1)(A) other than the sole restriction – rehabilitation alone cannot support compasionate release – set forth in the law by Congress. The Supreme Court will decide what limits, if any, cabin a judge on what he or she may consider as extraordinary and compassionate reasons for compassionate release.

Fernandez is Rutherford’s spiritual cousin. I would not be surprised to see certiorari granted to Rutherford, and the two cases being combined for argument and decision.

Rutherford is notable for something else: Supporting petitioner Rutherford are amicus briefs, including ones filed by FAMM, six clinical law school professors, and 12 former federal judges. Most interesting may be an amicus brief by former Bureau of Prisons officials (now corrections consultants) represented by civil rights attorney Scott Lewis at Boston firm Anderson & Krieger.

prisonhealth200313Spotlighting the BOP healthcare crisis, the brief argues that expanding access to compassionate release for inmates serving unusually long sentences would benefit the BOP because “aging, unhealthy inmates consume a disproportionate share of BOP’s scarce resources, which has cascading effects on federal prison operations and the safety and security of BOP staff, as well as inmates… [a]nd the thousands of prisoners potentially eligible for compassionate release who are serving ‘unusually long sentence[s]’ with ‘gross disparity…’ are especially likely to become elderly and unhealthy or disabled in prison.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

Fernandez v. United States, Case No. 24-556 (certiorari granted May 23, 2025)

Rutherford v. United States, Case No. 24-820 (petition for certiorari pending)

Brief of Amici Curiae Former Bureau of Prisons Officials In Support of Petitioner, Rutherford v. United States (filed March 5, 2025)

– Thomas L. Root

You Don’t Have to Cheat Someone Out of Money to Commit Wire Fraud – Update for May 27, 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.

STAM’S SCAM SLAMMED

Savingmoney250527The Supreme Court last Thursday upheld the fraud conviction of painting contractor Stamatios Kousisis. Stam got two government contracts that required him to work with disadvantaged business enterprises (DBEs), companies owned by racial minorities.

Stam set up a scam, a “pass-through” DBE company that was supposed to be supplying paint but really was just a front. Stam bought the paint, sold it to the DBE and then bought it back for a small markup that the minority “front” man got to keep for his part in the scam.

The catch was that Stam’s bid – with the sham DBE “front” – was below everyone else’s. As a result, the government paid less than it would have if it had accepted a bid from one of the other contractors who put their bids together with a legitimate DBE. The government charged Stam with wire fraud under the theory that he had fraudulently induced Pennsylvania to save money by contracting with him based on his claim that he was working with a real DBE. Stam argued that under the fraudulent inducement theory, the government had to show Stam intended to harm the government financially, which the government could not do.

The 3rd Circuit held that DBE participation in the deal was “an essential part of the contract,” and that was good enough to establish wire fraud, even if the government did save money. Last week, the Supreme Court agreed.

dbe250527The Supremes held that wire fraud simply requires someone to “devise” a scheme to “obtain money or property” through “false or fraudulent pretenses, representations, or promises.” The fraudulent-inducement theory, Justice Barrett wrote, does that: By using “a pass-through entity,” she said, Stam “‘devised’ a ‘scheme’ to obtain contracts through feigned compliance with PennDOT’s disadvantaged-business requirement.” The goal of the scheme was to obtain “tens of millions of dollars” from PennDOT by “making a number of ‘false or fraudulent… representations’ — first about their plans to obtain paint supplies from [the DBE] and later about having done exactly that.”

Fraud160811Obtaining money or property must be the goal of the wire fraud scheme, SCOTUS said, but the scheme does not “depend[] on economic loss.” The unanimous Court (with three concurring opinions) acknowledged that the wire fraud statute potentially has a “broad” sweep, “[b]ut Congress enacted the wire fraud statute, and it is up to Congress—if it so chooses—to change it.”

Kousisis v. United States, Case No 23-909, 2025 U.S. LEXIS 1982 (May 22, 2025)

SCOTUSBlog, Court upholds federal fraud conviction even without economic harm (May 22, 2025)

– Thomas L. Root