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Circuit Split on Extent of § 2244 Permission May Portend SCOTUS Review – Update for March 13, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

RAGLAND’S BEST…

Michael Ragland won one at the 11th Circuit last week, convincing the appeals court on rehearing that because his pre-First Step Act sentence had been vacated after the FSA passed, he should be resentenced under the Act (which would cut out excess time on six 18 USC § 924(c) convictions, dropping his sentence from 172 to about 65 years).

Prior to the FSA, passed December 21, 2018, anyone convicted of a second § 924(c) conviction for using or possessing a gun during a drug or violent crime – even if the offense occurred on a successive day – would receive a mandatory minimum sentence of 25 years on top of any sentence for any other count.  Sell a half pound of pot every day for a week, and you would be sentenced for selling 3.5 lbs. of weed (maybe 21 months in prison, not a lot under the Guideline). Selling that pot with a gun stuck in your pants, and before First Step, you would pile seven § 924(c) counts onto your sentence.  The first one would add at least 5 years to your 21 months. But § 924(c) counts for successive days would add a whopping 150 years – 25 years per count – to the total. Your sentence just became 1,881 months in prison.

We have covered all of this before. Remember the pancakes?

That wasn’t what § 924(c) was intended to do.  Rather, Congress meant that if you got convicted of possessing, using or carrying a gun during a violent or drug crime, did your time, and then got convicted of another § 924(c) offense after you got out, you hadn’t learned a thing. A 25-year sentence is just what you need.  But Congress was sloppy, writing the statute to say that any subsequent § 924(c) offense – even if it happened the next day or even an hour later – carried the 25 years. U.S. Attorneys back then were not known for moderation (unlike these days, when they’re known for not telling the truth). The “stacking” aspect of the old § 924(c) statute was an irresistible tool to them.

FSA changed that. Now, for the 25-year mandatory minimum to apply, you have to have been convicted of a prior § 924(c). That would still give our hypothetical weed seller with a gun stuck in his pants a minimum sentence of 21 months plus a mandatory 420 months for the gun, but his sentence would have at least become merely excessive rather than stratospheric.

Unfortunately, the FSA change to § 924(c) did not apply retroactively to people already sentenced. That caused some weirdly unjust outcomes. If our hypothetical weed seller had been sentenced on December 1, 2018, he would have gotten the full 1,881 months. Had his sentence been imposed just a month later, on January 2, 2019, his sentence would have been about 24% of that.

What was even more unfair (if that were possible) was that people sentenced before FSA passed but had their sentences vacated on appeal (requiring resentencing) were being denied FSA’s protection when the new sentence was imposed, because their first sentence had been handed down before FSA passed.

The Supreme Court’s 2025 decision in Hewitt v. United States fixed that anomaly, holding that any § 924(c) sentence – even a resentencing – imposed after First Step became law had to comply with the FSA. Thus, for Mike Ragland, last week’s outcome was preordained by Hewitt and surprised no one. The decision is interesting, instead, for its potential as the next Supreme Court § 2255 procedure case.

Mike previously got permission under 28 USC § 2244 to file a second or successive § 2255 petition raising the § 924(c) resentencing issue. But while the § 2255 motion was pending in the district court, he asked permission to amend it to raise other sentencing issues. The district court refused Mike unless he got approval from the 11th Circuit to file yet another successive § 2255 motion.

In last week’s decision, the 11th agreed with the district court that Mike had to file a fresh § 2244 request for a second or successive § 2255 if he had other issues to raise.

The 11th said,

Here, we authorized Ragland to raise ‘one claim’ in his successive § 2255 motion: that he was actually innocent of Count Sixteen… Ragland argues that the 7th Circuit in Reyes v. United States reached a different result on similar facts… The 4th Circuit has also adopted this approach… To the extent our sister courts permit movants to add new claims that have not been screened, and which exceed the bounds of the leave granted by the court of appeals, we respectfully disagree…

The Circuit split on this procedural question is the kind of issue the Supreme Court lives for. Don’t be surprised to see it on SCOTUS’s docket next term.

United States v. Ragland, Case No. 23-12278, 2026 U.S. App. LEXIS 6612 (11th Cir. March 5, 2026).

Hewitt v. United States, 606 U.S. 419, 145 S.Ct. 2165 (2025)

~ Thomas L. Root

New Jersey Vacation Goes Awry – Update for March 12, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WE FIND THE GOVERNMENT’S B.S. ‘TROUBLING’

Crystall Robles-Lopez was a homegirl. At 30 years old, she had never traveled from her home in Puerto Rico, never been on an airplane, and instead grew up in poverty. When someone offered her $1,500 to carry a couple of suitcases full of… well, something, Crystall wasn’t sure what… on an airline flight to New Jersey, she felt like she had won the lottery.

Free money and an all-expenses paid trip to sunny Newark, New Jersey. Wowsa!

Sadly, the “something” was about 25 lbs. of powder cocaine. Crystall didn’t make it out of the San Juan airport before being caught.

Crystall’s Presentence Report recommended she receive a 3-level Guidelines (USSG § 3B1.2) mitigating-role reduction. The government argued against it, pointing out that the only crime at issue was Crystall transporting coke, and she couldn’t have a minor role in a one-person crime. Besides, the government said, she was the ‘primary player’ in the conspiracy, she understood the crux of the criminal activity more than any other participant, she hailed Uber rides to take herself to the hotel and then to the airport, and she maneuvered the cocaine to minimize the potential to get caught in a highly policed environment.”

Last week, the 1st Circuit threw out Crystall’s sentence. It criticized the district court for not identifying the “relevant conduct as a whole” to determine Crystall’s role among all of the players. Instead, the Circuit observed, “the district court recognized only the steps Robles herself took to smuggle the two suitcases of cocaine through the airport and onto the plane. By declining to consider any ‘activities… undertaken in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense,’’ the court failed to identify the full universe of relevant participants.”

“Instead,” the 1st said, the district court merely recited “the facts that made Robles guilty of the crimes for which she was charged.” But the purpose of the § 3B1.2 factors “is not to establish guilt; it is to help a court decide whether to apply leniency because a defendant, while guilty, played a substantially subordinate role in the criminal activity.” The district court “incorrectly… placed inappropriate determinative weight on the government’s assertion that her role was indispensable to the success of the criminal endeavor.” But the Guidelines note that “a defendant who… is simply being paid to perform certain tasks should be considered for an adjustment” and caution that “an essential or indispensable role in the criminal activity is not determinative” of eligibility.

The 1st Circuit included a sharp rebuke aimed at the government: “The government makes an unsupportable attempt in its appellate briefing to cast Robles as ‘the star of the show’ and the ‘primary player’ in the conspiracy, making assertions about her role and activities that are patently inconsistent with uncontroverted record evidence… These exaggerations and inconsistencies by the government are troubling.”

United States v. Robles-López, Case No. 23-1587, 2026 U.S. App. LEXIS 6427 (1st Cir., dated February 4, 2026, but released on March 4, 2026)

~ Thomas L. Root

Diesel Therapy Doesn’t Cure Mootness, 10th Circuit Says – Update for March 10, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE PRISONER MOVES BUT THE LAWSUIT SURVIVES

One of the tools a prison administration’s toolbox has traditionally used to thwart an inmate’s lawsuit against the conditions of confinement is diesel therapy, a transfer (always involuntary) to a new joint. Moving a prisoner somewhere else – besides the disruption to his or her life the transfer causes – is a great way for a prison administration to rid itself of a troublesome inmate, impose punishment without calling it that (or being called to account for it) and sometimes to let the government argue that the inmate’s suit about prison conditions at Smiley Face Correctional Institution is moot because he or she is now at Happy Time Prison, hundreds or thousands of miles away from where the complained-of deprivation occurred.

Mootness is a constitutional concept, grounded in Article III’s “case or controversy” requirement. The doctrine provides that although an actual controversy may have existed at the action’s onset, if that controversy ceases to exist, a federal court must dismiss the action for want of subject-matter jurisdiction. Even if a case is not constitutionally moot, it may be prudentially moot, where the court decides in its discretion that the likelihood of continued injury is too abstract for the court to waste its time on it.

Colorado prisoner Rodney Eaves sued the State in federal court, arguing that officials at the facility where he was housed violated his 1st Amendment rights by denying him access to relics and rituals used in the practice of his native American faith. He wanted an injunction from the federal district court ordering prison officials at his facility to stop interfering with his 1st Amendment rights and statutory rights under the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc-2000cc-1.

During the suit’s pendency, Colorado transferred him to another prison and then argued that his suit was moot. The federal district court denied the State’s mootness claim, and the State appealed.

Last week, the 10th Circuit agreed with Rod, holding that “where an incarcerated plaintiff alleges exposure to unlawful conditions of confinement at the time he files his complaint, a subsequent transfer to another prison will not render his claim(s) for injunctive relief constitutionally moot unless defendant can show plaintiff is not and will not be exposed, even in part, to such conditions at his new facility.” A case becomes constitutionally moot only when party claiming mootness “establishes subsequent events make it impossible for a court to grant any effective relief whatever to his adversary.”

To avoid dismissal on the basis of prudential mootness, the 10th held, the plaintiff “bears the burden of establishing a recurrent violation of the wrongs about which he complained is more than an abstract possibility, such that the court may grant him some meaningful relief. Here, Rod submitted an affidavit stating his conditions of confinement at the new prison were substantially the same as they were at the old one.  Prison officials did not deny this. The Circuit ruled that because the State had “submitted nothing to contradict [Rod’s affidavit], the record points in only one direction… the State continues to subject Plaintiff post transfer to at least some of the allegedly unlawful conditions of confinement from which he seeks relief.” Thus, Rod’s religious freedom claims were not prudentially moot.

Eaves v Polis, Case No 23-1143, 2026 U.S. App. LEXIS 6341 (10th Cir. March 4, 2026)

Colorado Politics, 10th Circuit distances itself from prior decision making it easier to toss prisoner lawsuits (March 6, 2026)

~ Thomas L. Root

Guns, Drugs and Appellate Waivers – Update for March 9, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT HAS PRISONER-FRIENDLY WEEK…

The Supremes heard oral arguments in two cases last week, and while it is always perilous to predict the outcome from what happens in oral argument, the signs favor two pro-prisoner decisions.

In the closely-watched United States v. Hemani case, the government sought review of a 5th Circuit holding that 18 USC § 922(g)(3) – which prohibits drug abusers from possessing guns – could be applied to a gun owner who smoked pot a few times a week consistent with the 2nd Amendment.

Attorneys for the government compared § 922(g)(3) to colonial-era laws that disarmed “habitual drunkards.” However, Justice Neil Gorsuch wondered whether Hemani even qualified as a “habitual user” of marijuana. Gorsuch observed that the term “habitual drunkard” carried a very different meaning in early American history, because people generally drank alcohol in great quantity. “John Adams,” Gorsuch said, “took a tankard of hard cider with his breakfast every day,” while “James Madison reportedly drank a pint of whiskey every day.”

And if those Founding Fathers were not “habitual drunkards,” Gorsuch asked, “then what do we know about Mr. Hemani? We know he uses marijuana … about every other day… [W]e don’t even know the quantity of how much he uses every other day.”  And the federal government, Gorsuch said, “has not been able to define what a user is.”

A majority of the justices seemed to agree that § 922(g)(3) may be overbroad, lumping together occasional drug users with people addicted to drugs who threaten public safety. “Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked the government’s attorney. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?” she added.

If the Hemani opinion focuses on “dangerousness,” it may advance arguments that nonviolent felons should not be subject to § 922(g)(1). Politico, however, warned that it is “unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.”

A case that has drawn lesser interest (but is maybe more consequential for defendants) is Hunter v. United States. Hunter asks what exceptions exist to federal defendants’ waivers of their right to appeal, language that appears in virtually every one of the 94% of federal cases that end with a guilty plea every year.

SCOTUSBlog reported that “[t]he justices seemed poised to endorse more exceptions than just the two the government endorsed – ones for ineffective assistance of counsel in entering into a plea agreement and for sentences above the statutory maximum. A number of justices also expressed misgivings about relying on contract law to define exceptions to appellate waivers… and a majority seemed likely to hold, at a minimum, that a defendant could escape from an appellate waiver when enforcing it would result in a “miscarriage of justice…”

The National Law Journal observed that DOJ’s “hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback,” even suggesting that if a district court were avowedly racist at sentencing, an appeal waiver would prevent the defendant from getting any relief.

Writing last week in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman argued that broad sentencing appeal waivers “insulate all sorts of sentencing errors from scrutiny and review, and they seem fundamentally inconsistent with the decision by Congress in the Sentencing Reform Act of 1984 to provide both defendants and the government with the right… to seek appellate ‘review of an otherwise final sentence’.”

Berman wrote that he “was pleased to discover at least one Justice (Justice Jackson) seemed drawn to the idea that broad sentencing appeal waivers were void as against public policy, and I was even more pleased that it was not clear that any Justice was eager to embrace the government’s suggestion that broad sentencing appeal waivers were subject to almost no exceptions. I predict the majority of the Court will end up between these extremes, and I am already looking forward to seeing what the middle ground will be.”

United States v. Hemani, Case No. 24-1234 (oral argument March 2, 2026)

Politico, Supreme Court wrestles with gun ban for drug users (March 2, 2026)

SCOTUSBlog, Supreme Court skeptical of law banning drug users from possessing firearms (March 2, 2026)

New York Times, Supreme Court Appears Skeptical of Law Banning Drug Users From Owning Guns (March 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument March 3, 2026)

SCOTUSBlog, Justices poised to adopt exceptions to federal criminal defendants’ appellate waivers (March 6, 2026)

National Law Journal, ‘Racist Sentencing Judge?’: DOJ Stuns Supreme Court With Stance on Appeal Waivers (March 4, 2026)

Sentencing Law and Policy, Broad array of Justices express broad concerns about broad appeal waivers in Hunter oral argument (March 3, 2026)

~ Thomas L. Root

Good Ideas, Recycled, in Senate – Update for March 6, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SMARTER SENTENCING ACT IS BACK

Senators Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and Mike Lee (R-UT) last week reintroduced the Smarter Sentencing Act as S.3959, which seeks to update sentencing for federal drug offenses, and S. 3960, the Smarter Pretrial Detention for Drug Charges Act, which would give judges greater discretion in pretrial detention decisions for nonviolent drug charges.

The Smarter Sentencing Act, introduced in two prior Congresses, would lower mandatory minimum sentences for some nonviolent drug crimes. For reasons not clear to me, while Sen. Durbin’s office trumpeted this as the Smarter Sentencing Act, S.3959 is actually titled “A bill to focus limited Federal resources on the most serious offenders.”

Over half of all federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill provides federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.

Durbin and Lee first introduced the Smarter Sentencing Act in 2013; some reforms were later included in the First Step Act. The current bill is cosponsored by eight Democratic senators and supported by the National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, and Association of Prosecuting Attorneys.

The Smarter Pretrial Detention for Drug Charges Act would remove blanket presumptions that require detention before trial for most federal drug charges.

A 2017 Probation and Pretrial Services Office study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.”

Federal Newswire, Durbin and Lee Introduce Bipartisan Bills Targeting Federal Drug Sentencing Reform (February 26, 2026)

S.3959, Smarter Sentencing Act

S. 3960, Smarter Pretrial Detention for Drug Charges Act

~ Thomas L. Root

The Error Is Harmless If You Really Did It – Update for March 5, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS

Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.

Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the § 924(c)s were based.

However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.

Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”

Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.

Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)

~ Thomas L. Root

6th Amendment Doesn’t Let You Coach Up Your Client/Witness – Update for March 3, ,2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

EVERYBODY’S TALKING AT ME

There is little in American criminal law as sacred as a defendant’s right to talk freely and confidentially with his or her attorney. But even the sacred has exceptions.

Last week, the Supreme Court ruled 9-0 that when a trial court recesses a criminal trial during a defendant’s testimony, the court may order that the defendant and counsel not discuss that testimony during the break except where it is incidental to talking trial strategy or taking a plea deal.

On trial for murder, Aaron Villarreal took testified in his own defense. After about an hour, the trial judge recessed for the rest of the day and told Aaron and his lawyer not to talk about his testimony overnight. Aaron was convicted.

On appeal, he argued that the order not to discuss his testimony violated his 6th Amendment right to effective assistance of counsel.

The Supreme Court agreed, listing some types of attorney-client discussion that a trial court may not prohibit. “A defense attorney may rehearse her client’s testimony before her client takes the witness stand,” Justice Ketanji Brown Jackson wrote for the Court. “And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good. Such discussion of testimony qua testimony is entirely proper and the consultation that enables it is constitutionally protected before the defendant’s testimony begins and after it concludes. But for the duration of the defendant’s time on the stand, consultation about the testimony itself—rather than incidental discussion of testimony in service of protected topics—sheds its constitutional protection.”

“No less than before or after his testimony, a defendant’s access to advice about trial strategy remains essential to the collaborative enterprise that is criminal defense,” Brown held. What’s more, the flow of information goes both ways, she said, with counsel remaining free to obtain information from the client on which trial strategy may hinge.

The Court acknowledged in a footnote that “[t]he line between discussion of testimony for its own sake and discussion of testimony incidental to other topics may not always be razor sharp.  We trust that defense counsel will not evade the spirit of qualified conferral orders by couching discussion of testimony qua testimony in strategic terms.”

Villarreal v. Texas, Case No. 24-557, 2026 U.S. LEXIS 1103 (February 25, 2026)

~ Thomas L. Root

A “Totally Decimated” DOJ Pardon Office Sidelined by “Corrupt” Clemency Process – Update for March 2, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARDON OUR MESS AT THE OFFICE OF PARDON ATTORNEY

The Dept of Justice Office of Pardon Attorney has always been rather opaque. Last week, we got a glimpse of President Trump’s OPA, and what we saw was not good.

Under the Constitution, the President holds unreviewable clemency power. However, since 1789, various government offices have provided the President with administrative support for the exercise of executive clemency. In 1865, a DOJ office was formally delegated the responsibility of assisting the President in vetting clemency petitions. It became the “Office of Pardon Attorney” in 1894. Historically, presidents have relied on OPA’s pardon review process to rely on the pardon attorney process before making pardons, but they are not required to do so.

OPA used to apply five standards for someone to be considered for clemency, including conduct since conviction, seriousness of the offense, acceptance of responsibility for the crime, the extent of punishment already suffered (especially collateral consequences), and references from other people who could attest to the applicant’s good character and rehabilitation.

Not anymore. A troubling New York magazine article last week detailed the mess that OPA has become, and the implications for federal prisoners without rich parents or powerful friends.

Elizabeth Oyer, who headed OPA when Trump came into office, was the first former public defender to serve as Pardon Attorney. Her staff of 45 was responsible for reviewing the cases of thousands of offenders to determine who was worthy of clemency. But within hours of President Trump taking office, “she was cut out of the process, which was rerouted from the top down.” Oyer told New York that she began learning about Trump clemency grants “when they popped up in the news.”

Oyer was fired last March when she refused to agree that actor and friend of Trump Mel Gibson should have his gun rights restored. Gibson was disqualified under 18 USC § 922(g)(9) because of a misdemeanor conviction for violence against his ex-girlfriend and the mother of his 1-year-old daughter at the time.  New York described Oyer’s firing as “a death knell for the office, according to some former staffers.”

“The office has been totally decimated,” an ex-staffer was quoted as saying. The office is down from 45 to about 15 employees. Many took buyouts when Elon Musk’s DOGE offered them last April. “Others,” New York said, “quit rather than stick around in an office where their work was being ignored.” (DOJ, of course, denies that OPA has been sidelined).

Two people appear to be in charge. Alice Marie Johnson, the “pardon czar” Trump appointed a year ago – a former federal prisoner serving life for a cocaine trafficking conspiracy before Trump commuted her sentence in 2018 (and later upgraded her to a full pardon) – works out of the White House. “Some ex-staffers hoped Johnson would maintain the office’s mission-based work…” one former OPA employee said. “But I don’t know that she has a staff,” says another former employee.

The official head of OPA is Edward Martin, named Pardon Attorney as a consolation prize after he was found to be too controversial to pass the Senate appointment process to be US Attorney for Washington, D.C. New York reported that Martin is uninterested in the Pardon Attorney position and apparently appears at the office about once a week.  “He’s just not there that much,” the staffer said.

The best way to obtain clemency in the current environment is to pay big in order to go around OPA. Lobbying for clemency is big business. Billionaire Changpeng Zhao, who violated money-laundering prevention statutes at his crypto exchange, Binance, was pardoned last fall, about a month after hiring the lobbying firm of Donald Trump Jr.’s friend Ches McDowell. The cost for a month’s lobbying? $450,000. (It helped that Binance was also a major backer of the Trump family’s cryptocurrency stablecoin). Nursing-home magnate Joseph Schwartz paid conservative lobbyists nearly $1 million last April to lobby for a pardon on tax-fraud charges; by November, Schwartz was free.

“Attorneys close to Trump are now seeking fatter fees,” New York reported. “Rudy Giuliani was reportedly shopping around a $2 million price last year. One former pardon-office lawyer… said they were hearing lobbyists go as high as $5 million to work their connections in the White House.”

Last Tuesday, in his State of the Union address, Trump asked that Congress “pass tough legislation to ensure that violent and dangerous repeat offenders are put behind bars and importantly, that they stay there.” Trump is not a friend of federal inmates who have neither connections nor a lot of money. Yet I hear weekly from prisoners believing that Trump is about to grant a large number of commutations to federal prisoners.

Not likely. All that is certain is that OPA has been broken and made irrelevant by the White House. “It’s heartbreaking,” one attorney who left OPA shortly after Oyer was fired told New York. “It’s not that they’re doing it differently that makes it heartbreaking. It’s that it’s corrupt.”

New York magazine, Trump’s Pardon Office Is ‘Totally Decimated’ The team has been virtually replaced by highly paid lobbyists and friends of the president. (February 27, 2026)

Politico, Trump showcases gruesome stories throughout the night (February 24, 2026)

~ Thomas L. Root

Contraband and Lousy Food – Update for February 27, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A REMARKABLE ADMISSION… AND A WARNING

BOP Director William K. Marshall took to video last week to describe with uncommon candor the BOP’s losing battle with contraband in its facilities.

In a 5-minute video posted on the BOP website, Marshall said BOP staff is confronting a steady stream of drugs, weapons and drone drops, some of which is being introduced by corrupt BOP employees.

In the last 10 months, BOP staff have used Narcan in more than 500 apparent overdose incidents. Drugs found in facilities include fentanyl, methamphetamine, marijuana, liquid-soaked papers, Suboxone strips, amphetamines, mushrooms and vapes. In the same time period, Marshall noted, the BOP has intercepted 228 drone drops, seized nearly 17,000 cell phones, confiscated 4,300 weapons, recovered nearly 50 lbs. of methamphetamine, and stopped 231 visitors with contraband.

Notably, Marshall disclosed that the BOP has conducted contraband investigations involving 260 staff members. He recounted one case in Texas where a staff member was caught smuggling tobacco into a facility. 

It is both evidence of the severity of the problem and of Marshall’s willingness to recognize reality that he acknowledged that some of the contraband problem is staff-driven. (But then, in the past 10 months, Marshall has proven himself to be a very different director. He is the director who looked at a plate of expired dining hall food being served to an inmate during a facility visit last summer and asked a warden, “Would you eat that? If the answer is ‘no,’ then don’t serve it. Period. That’s` not just about food safety, that’s about human decency”).

As for the contraband problem, Marshall said, “These numbers represent real threats stopped by real people. But for every attempt we catch, others are still trying.” And he had a warning: “We are prosecuting anyone, whether a visitor, a staff member, or an inmate who attempts to introduce contraband into our facilities. This unified approach sends a clear message – criminal activity in or around federal prisons will not be tolerated, and those responsible will be held accountable.”

William Marshall, Growing Threat of Contraband in the Bureau of Prisons (February 17, 2026)

 

Forbes, “Would You Eat That? A Leadership Question at the Bureau of Prisons (February 11, 2026) 

~ Thomas L. Root

Bill Seeks To Cut Away Federal Criminal Law Thicket – Update for February 26, 2027

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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.

BILLS SEEK TO IDENTIFY FEDERAL CRIMINAL CODE BLOAT

Senators Mike Lee (R-UT) and Chris Coons (D-DE) last week introduced S. 3868, the Count the Crimes to Cut Act, a bill aimed at addressing the overweight federal criminal code. The bill, cosponsored by two Republicans and two Democrats, would require the Attorney General to publish a list of all federal criminal statutory offenses, including the elements for each offense, the potential criminal penalties, prosecution data from the past 15 years, and mens rea requirements.

The bill, already passed by the House of Representatives as H.R. 2159, would create a searchable database of the estimated 5,000 federal crimes.

“Meaningful criminal justice reform requires more than good intentions—it takes a serious examination of what’s already on the books,” said Sen Peter Welch (D-VT), one of the bill’s cosponsors. “Congress has a responsibility to understand the full scope of the federal criminal code to promote public safety. This bipartisan legislation will increase transparency, reduce overcriminalization, and ensure due process in our criminal justice system.”

The bill has been endorsed by the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, Families Against Mandatory Minimums, the Due Process Institute, and the R Street Institute.

The conservative reform organization Right on Crime observed:

The average American is estimated to commit multiple felonies a day without knowing it. This isn’t a punchline or a hypothetical nightmare — it’s a reflection of how vast and unmanageable our federal criminal code has become. The body of federal criminal law has grown so large that no person or institution has been able to definitively count how many crimes currently exist. The result is a justice system that is unfocused, inconsistent, and increasingly ineffective.

S.3868, Count the Crimes to Cut Act

H.R. 2159, Count the Crimes to Cut Act

Press Release, Lee Introduces the Count the Crimes to Cut Act (February 19, 2026)

Press Release, Welch Joins Bipartisan Legislation to Modernize Federal Criminal Code (February 19, 2026)

~ Thomas L. Root