All posts by lisa-legalinfo

BOP Would Walk 500 Miles… – Update for October 3, 2025

Leave a comment

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

TAKE THE LONG WAY HOME

One of several pervasive First Step Act myths I hear regularly from inmates is that the BOP is required to place them in facilities located within 500 driving miles from their homes. FSA sponsors trumpeted this as a great gift to prisoners when FSA passed nearly 7 years ago, but – as always – the fine print is what counts. And the fine print has more holes than a window screen.

In 18 USC § 3621(b), Congress said that “subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns,” the BOP shall place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.”  Any BOP manager whose had his or her morning coffee can find another “security concern” exception sufficient to place a prisoner anywhere there’s an opening.

Now, the Dept of Justice Inspector General has reported that the BOP has been dogging it. In an audit released last week, the IG said that the BOP’s inmate placement data showed that a third of the inmates the audit evaluated were over 500 miles from their release residence on September 28, 2024. What’s more, despite the law, the BOP continued to use a straight-line, or “as the crow flies” calculation instead of driving miles, resulting in an undercalculation for the inmates evaluated of about 8% (8,600 people).

Additionally, the IG found that out of a sample of 100 inmates (placed both more and less than 500 miles from home), for 26% the auditors could not determine the reason the inmates were placed where they were, “particularly when there were comparable facilities closer to the inmate’s residence.”

Not that it matters. Under § 3621(b), BOP designation decisions are “not reviewable by any court.”

Dept of Justice Office of Inspector General, Audit of the Federal Bureau of Prisons’ Efforts to Place Inmates Close to Home (Report 25-083, September 25, 2025)

~ Thomas L. Root

Lawyers Can Be Wrong But Still Be Good, 7th Says – Update for October 2, 2025

Leave a comment

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

WRONG DOESN’T MEAN INEFFECTIVE, 7TH CIRCUIT SAYS

Otis Elion pleaded guilty to distributing meth in 2017. The district court held that he qualified as a Guidelines Chapter 4B “career offender.” Otis’s attorney did not object, because after researching whether his prior convictions qualified as predicate offenses for career offender, she concluded that challenging that sentencing enhancement would fail.

In his 28 USC § 2255 petition, Otis argued his lawyer provided ineffective assistance under Strickland v. Washington by not challenging his “career offender” status. The district court agreed that he was prejudiced because he really didn’t qualify as a “career offender,” but that his lawyer – although wrong – was not ineffective.

With several prior drug convictions, Otis may have been a “career offender” under USSG § 4B1.1(a). The drug convictions might have been considered to be “controlled substance offenses, “defined as federal or state offenses that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)” or possession with intent to engage in those actions, punishable by imprisonment for a term exceeding one year.”

One of Otis’s priors was a 2006 federal conviction for distribution of crack cocaine. Before that was a 2000 conviction for delivery of a look-alike substance. The oldest was a 1999 conviction for delivery of a look-alike substance within 1,000 feet of public housing property. The Presentence Report concluded that those convictions qualified Otis for career offender.

His attorney reached the same conclusion, so she did not object to the application of the enhancement at Otis’s sentencing. Instead, she argued Otis ‘s health and life circumstances justified a mitigated sentence. The district court sentenced Otis as a “career offender” to 167 months.

To Otis, neither his 1999 nor his 2000 state convictions was controlled substance offense because look-alike substances made the Illinois statute broader than the Guidelines, and his lawyer’s failure to make that argument violated his 6thAmendment right to effective assistance of counsel. Using the modified categorical approach, the court agreed the Illinois use of “look-alike” substance made it different from the Guideline’s use of counterfeit substance.

Otis’s attorney had wrongly concluded that “counterfeit” and “look-alike” were a categorical match. But the 7th Circuit said last week that a defense attorney does not need to forecast changes in the law. “Failure to object to an issue that is not settled law within the circuit is not unreasonable by defense counsel… A defense attorney’s choice not to make a potentially meritorious argument is not automatically deficient performance, even if it stems solely from a legal error.” 

Strickland holds that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” the 7th said. Strickland necessarily permits mistakes that are reasonable. Only when the defense attorney’s error is so appalling that he can no longer be considered “counsel” for his client is his performance deemed deficient… The giving of legal advice that later is proven to be incorrect, therefore, does not necessarily fall below the objective standard of reasonableness.

If an attorney declines to make an argument that no court has accepted and no other attorney has made, yet which later succeeds, it is doubtful the attorney’s omission was unreasonable under prevailing norms of practice. Otis’s lawyer did the necessary work, the 7th observed. “She researched the categorical approach arguments, found the applicable caselaw, and analogized that precedent to Otis’s case. When the caselaw provided no answer, she used statutory interpretation and relied on her extensive experience. She just reached a different conclusion than the Circuit did —a  conclusion on which reasonable minds could disagree.”

Elion v. United States, Case No. 24-3014, 2025 U.S. App. LEXIS 24770 (7th Cir. September 24, 2025)

~ Thomas L. Root

Bureau of Prisons Says ‘Union, No’ – Update for September 30, 2025

Leave a comment

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

BOP CANCELS UNION CONTRACT FOR 30,000 EMPLOYEES

The Federal Bureau of Prisons last Thursday canceled its collective bargaining agreement with Council of Prison Locals 33, the national union representing more than 30,000 of its 34,900 workers. Cancellation of the contract, which would have expired in 2029, makes BOP employees “the latest group to be targeted by the Trump administration’s effort to assert more control over the government work force,” according to the New York Times.

BOP Director William K. Marshall III told employees that the union “has a proud history of advocating for its members, and I want to acknowledge the positive contributions it has made over the years… But when a union becomes an obstacle to progress instead of a partner in it, it’s time for change. And today, thanks to President Donald J. Trump and Attorney General Pamela Bondi, we’re making that change. Today, I’m announcing the termination of our contract with CPL-33 effective immediately.”

Marshall said that workers would not be fired, suspended or demoted without cause or due process, and that their pay and benefits were guaranteed by law to stay in place. Nevertheless, he told Brandy Moore White, the union’s president, that employees no longer have a right to union representation during meetings with management, investigative interviews or other proceedings. Earlier this year, the BOP prohibited the deduction of union dues from employee paychecks, causing union membership to plummet.

Moore White said, “Don’t be fooled, this is not about efficiency or accountability — this is about silencing our voice… “The vast majority of our members are Republicans and voted for this president. I literally cannot explain to you how many messages I’ve gotten from them saying this is such a slap in the face. This man vowed to protect law enforcement, and this is what we get in return. They just feel so blindsided and so frustrated with how this is going.”

She said the union plans to take legal action and seek a Congressional remedy.

Although Trump’s Executive Order issued last spring to cancel government union contracts made use of a narrow legal provision that lets a president suspend collective bargaining for national security, Marshall’s  announcement made no mention of any national security concerns. Instead, he just said the agency was ending the agreement because it believed collective bargaining was a “roadblock” to progress.

John Zumkehr, president of AFGE Local 4070 at FCI Thomson, argued the cancellation increases what he said is an already high risk of suicide among BOP employees. “When you strip away the protections we’ve fought for, you endanger the well-being of every officer and undermine the entire system,” Zumkehr said. “Instead of standing behind us, the Bureau is tearing down the few safeguards we have left.”

Writing in Forbes, Walter Pavlo noted that the BOP “has often been criticized by advocate groups as not being responsive to implementing laws, such as the First Step Act and Second Chance Act. Both of these pieces of legislation were slow to be implemented with some blaming the union for the lack of progress.”

He quoted Rabbi Moshe Margaretten, president of the Tzedek Association, a group instrumental in the creation and passing of the First Step Act, “As someone who has spent years working closely with the Bureau of Prisons on reform, I can say without hesitation that the union has been one of the greatest obstacles to real progress. For too long, every new policy, no matter how commonsense or beneficial to staff and inmates alike, had to be dragged through an approval process where the default answer was ‘no’… This is a watershed moment — an opportunity to finally build a Bureau of Prisons that works better for the men and women who serve in it and for the country as a whole.”

New York Times, Federal Bureau of Prisons Ends Union Protections for Workers (September 26, 2025)

BOP, Director’s Message (September 25, 2025)

AFGE CPL-33, Bureau of Prisons Union Condemns Administration’s Attack on Workers’ Collective Bargaining Rights (September 25, 2025)

Federal News Network, Federal Bureau of Prisons terminates collective bargaining agreement with AFGE (September 26, 2025)

Associated Press, Federal Bureau of Prisons moves to end union protections for its workers (September 25, 2025)

Forbes, Bureau of Prisons Cancels Collective Bargaining Agreement With Union (September 26, 2025)

~ Thomas L. Root

Supreme Court Returns Today With ‘Long Conference’ – Update for September 29, 2025

Leave a comment

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

‘LONG CONFERENCE’ SET FOR TODAY

The Supreme Court holds its annual “long conference” today (Monday, September 29th), a closed meeting at which the justices will consider the roughly 2,000 petitions for review that have built up since their last conference before their summer recess held last June.

Gregory Garre, who served as the US solicitor general 20 years ago, described it as the place “where petitions go to die.” Normally, a petition for cert has about a 1.1% chance of being granted review. “Long conference” petitions have about half of that.

So far, the court’s docket is only about half-full, leaving plenty of room for a flurry of new grants of certiorari for litigants. The court typically agrees to hear more cases from this conference than any other during the term. Still, Supreme Court petitioners prefer to avoid having their cases scheduled for the long conference due to the slightly worse odds of getting a cert grant than other times of the year.

The long conference is the unofficial start to the court’s new term, which by law officially begins on the first Monday in October. For the past two terms, the court has announced new grants on the Friday following the conference, before publishing its usual “orders list” consisting of cert denials (rejected cases) the following Monday.

A notable case to be considered tomorrow is that of Ghislaine Maxwell. She claims that a 20-year-old immunity agreement reached between the government of Maxwell’s associate Jeffrey Epstein covered her as well. The case, if heard, could be the first significant plea agreement case to come from the Supreme Court in over 60 years.

SCOTUSBlog, What is the Long Conference? (August 11, 2025)

 

National Law Journal, 12 Cases to Watch From Supreme Court’s ‘Long Conference’ (August 18, 2025)

~ Thomas L. Root

NACDL Releases Badly-Needed Federal Restitution Study – Update for September 26, 2025

Leave a comment

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

NO ONE CARES ABOUT RESTITUTION… UNTIL THEY DO

Neither fish nor fowl, restitution has long been considered to be remedial – intended to make victims whole – rather than punishment. And many defendants who receive a restitution order pay little attention to it because they are much more fixated on the amount they are getting the enormous amount they will be ordered to pay someday.

Unfortunately, someday always comes, leaving defendants struggling in many cases with restitution that has nothing to do with what they can afford, how much they made from the offense, or even the losses of the victims.

Last week, the National Association of Criminal Defense Attorneys published a report on federal restitution that was detailed, surprising, and insightful. The report found that $110 billion of federal restitution debt remains outstanding, with a full $100 billion of that being deemed “uncollectible.” The average amount of a federal criminal restitution order is more than $3.3 million, including not the “full amount” of a victim’s losses, but often includes calculations of pre-and post-judgment interest as well. In 30% of restitution orders, the victims incurred no loss but are entitled to repayment anyway.

Restitution hearings can be held after sentencing hearings, and not every circuit recognizes a defendant’s right to be present at those restitution hearings (although a pending Supreme Court case, Ellingburg v. United States, may have something to say about that). Courts do not have to apportion liability among defendants; when defendants are found “jointly and severally liable,” each defendant is legally responsible for the full amount of the victim’s losses.

Just last week, the 3rd Circuit ruled that a restitution order where the defendant had stolen from two gun stores was flawed because the stores were awarded the value of the guns and lost sales income from the guns as well.

The NACDL study recommended that Congress and the Supreme Court should recognize that a restitution hearing is part of the sentencing process and therefore is a “critical stage” in the criminal legal process at which the defendant has a right to be present, that because a sentencing is focused on incarceration, a separate restitution hearing should be required to specifically address how much restitution should be ordered and to whom.

The study also argued that federal restitution statutes should be amended to require judges to consider a defendant’s ability to pay, and when payment is ordered, defendants should only be required to reimburse actual losses. The study proposed that joint and several liability should be eliminated.

The chance for any constructive criminal justice legislation with this President and this Congress is minimal. Just last night, we saw the DOJ used on the direct order of the President to charge one of his political enemies. So don’t expect any defendant-friendly changes in the law any time soon, even if they make perfect sense.

Still, the 46-page study, well-crafted and meticulously documented, is worth the download.

NACDL, Empty Pockets and Empty Promises: How Federal Restitution Law Fails Everyone (September 16, 2025)

Ellingburg v. United States, Case No. 24-482 (oral argument October 14, 2025)

United States v. McCormack, Case No. 24-2500, 2025 U.S. App. LEXIS 24139 (3d Cir. September 18, 2025)

 

~ Thomas L. Root

Some Helpful Guidelines Amendment Guidance – Update for September 25, 2025

Leave a comment

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

GUIDELINES ‘EXPLAINER’

Lebedin Kofman, a New York criminal law firm has published an online explanation of the Guidelines amendments that will take effect in less than 40 days. These changes – as we have repeated often – are not retroactive to anyone already in prison.

Still, knowing what those changes are may benefit people seeking compassionate release, other 18 USC § 3582(c) sentence reductions, or other resentencings.  Here are some highlights:

Departures: The most dramatic change eliminates the departure system that’s been in place for 37 years. LK says, “This isn’t just moving the furniture around; it’s tearing down the walls and rebuilding the house.”

There will still be departures for substantial assistance (USSG § 5K1.1) and early disposition programs (for aliens agreeing to quick deportation). However, the Guidelines system now will depend on calculating the base offense level and any adjustments, and then considering variances up or down under 18 USC § 3553(a), including the nature and circumstances of the offense and the defendant’s  history and characteristics. LK notes, “This requires more individualized presentations of mitigation evidence, which can actually work in your favor if your attorney knows how to leverage it properly.”

Drug offenses: For drug offenses, the amended Guidelines will focus on a defendant’s actual role in the offense rather than just the drug quantities involved. The Guidelines will now cap the drug quantity table at offense level 32 for defendants who receive mitigating role reductions under USSG § 3B1.2.

What’s more, new Guidelines commentary clarifies that § 3B1.2(a) minor reductions are “generally warranted” for defendants whose primary function was among the lowest levels of drug trafficking, including couriers, errand runners, message takers, lookouts, and defendants performing other low-level functions, such as distributing user-level quantities for little compensation or being motivated by intimate relationships or fear rather than profit.

LK said, “This is a game-changer for many defendants who previously got hammered with sentences based on drug quantities they had no real control over.”

Lebedin Kofmin, Federal Sentencing Reform: Major Changes Every Defendant Should Understand (September 10, 2025)

~ Thomas L. Root

‘Starting at the Beginning’ For Criminal History – Update for September 23, 2025

Leave a comment

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

COMMENCEMENT TIME

Usually, commencement happens in the spring. But in calculating Criminal History under the Guidelines, the time since prior convictions occurred is calculated from the “commencement of the instant offense.”

Sometimes, that’s easy. A defendant who pulled a “smash and grab” at a jewelry store and is convicted of a Hobbs Act robbery knows the date and hour his crime “commenced.” But many, if not most, cases are not so cut-and-dried.

Xavier Josey did time for a North Carolina child sex case. Afterward, he was required to register in whatever state he lived as a sex offender. He moved from North Carolina to New York, where he did not properly register. Later, he moved to Pennsylvania, where he failed to register again.

The Feds charged him with nonregistration in Pennsylvania. In scoring his criminal history,  to determine his Guidelines sentence, the District Court looked back 15 years from the date he should have registered in New York, which happened four years before he failed to register in Pennsylvania. The District Court concluded that “commencement of the instant offense” meant commencement of any relevant conduct as defined by USSG § 1B1.3 rather than commencement of the conduct that underlay the count of conviction. It’s like the Hobbs Act defendant having “commencement” of his robbery turned back to the time he took a kid’s French fries at McDonald’s ten years before.

The effect of Xavier’s court setting “commencement of the instant offense” as being a few years before his current crime was that his criminal history included three prior sentences that would otherwise have been excluded. His Guidelines sentencing range became 24 to 30 months instead of 15 to 21 months.

Last week, the 3rd Circuit vacated the sentence.

In calculating a defendant’s Criminal History Category, the Guidelines assign points for each prior sentence of imprisonment, but only if it was imposed within a specified period of time looking back from “the defendant’s commencement of the instant offense.” For prior sentences exceeding one year and one month the “look-back period” is fifteen years, and for any other prior sentence, it is ten years. But what conduct “commence[s]… the instant offense” to anchor the look-back period?

The Guidelines, however, say it is the conduct comprising the offense of conviction. The Sentencing Commission, however, included commentary to USSG § 4A1.2 instructing that “commencement of the instant offense” includes “relevant conduct.” USSG § 4A1.2 cmt. n.8. Guideline § 1B1.3 says that “relevant conduct” includes “all acts and omissions… that were part of the same course of conduct.” And § 1B1.3’s commentary, in turn, describes “same course of conduct” in terms that potentially sweep in a wide range of similar activity.

The 3rd held that “courts may consider commentary only when the text of a particular Guideline is genuinely ambiguous… and here there is no such ambiguity: ‘Commencement of the instant offense’ means the start of the conduct comprising the offense of conviction, i.e., the specific offense conduct for which the defendant is then being sentenced.”

How the commencement date of the instant offense in drug and white-collar conspiracy cases gets figured often has a significant effect on a defendant’s criminal history score. The Circuit has reminded defendants that the commencement date cannot be rolled back on a whim.

United States v. Josey, Case No. 24-1891, 2025 U.S. App. LEXIS 24290 (3d Cir. September 19, 2025)

~ Thomas L. Root

Congress May Tackle Criminal Reform… And That’s Probably Not Good – Update for September 22, 2025

Leave a comment

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

I’VE GOT YOUR GOOD NEWS AND YOUR BAD NEWS

It’s been seven long years since President Trump championed his last crime bill, the First Step Act, through Congress. Although the measure was far from perfect, it represented the biggest advance in sentencing, rehabilitation, and crime reduction in 25 years.

Now, Trump and congressional Republicans are at it again, “actively discussing a sweeping crime bill that would go far beyond their recent forays into DC’s criminal justice system,” Semafor reported last week.

The plans remained ill-formed but are serious, intended to let the Republicans keep the momentum going on a politically advantageous issue.

That’s all good news, but the bad news is that what comes out is unlikely to be a “Second Step Act.” Instead, imagine an extension of the Violent Crime Control and Law Enforcement Act of 1994.

A sense of what’s to come showed up last week, when the House of Representatives passed two bills targeted at DC.  The first, the D.C. Criminal Reforms to Immediately Make Everyone Safe Act, or DC CRIMES Act, which would prohibit DC local officials from changing sentencing laws and restrict the ability of local judges to be more lenient with younger criminals. The second, H.R. 5140, lowers the age at which youthful offenders can be tried as adults for some violent offenses to 14.

The DC CRIMES Act passed the House 240-179, while H.R. 5140 passed 225-203.

That may just be a start, as Congressional Republicans trip over themselves to support Trump’s belief that DC is overrun with crime. Last week, Sen John Cornyn (R-TX) introduced S. 2815 to repeal DC’s Incarceration Reduction Amendment Act and Second Chance Amendment Act, which the Sentencing Project told legislators last week “ignore decades of evidence proving extreme punishments do not make us safer.”  Instead, the bill –  which would require a mandatory life sentence for 1st degree murder – would “not improve safety, but it will have two very predictable impacts. It will increase the burden on the already critically-strained Federal Bureau of Prisons, which houses most individuals convicted of DC Code offenses, and it will increase racial disparities.”

After all of this, there is no reasonable belief that a federal criminal code revision will be anything short of Draconian. Example? Take H.R. 3486, now pending in the House, that would require a mandatory minimum 5-year sentence for an immigrant who illegally re-enters the US after being convicted of a felony and deported. The government has known for a decade that longer sentences do not deter crime. But what matters is symbolism: mandatory minimums look tough on paper, and legislators don’t lose elections by looking too tough.

But steering a sweeping piece of anti-crime legislation through Congress during an election year won’t be easy. Semafor said, “It would require close coordination between Congress and the White House to unite a Republican Party with disparate views of criminal justice that could easily fracture over the issue, not to mention work to win the Senate Democratic support such a bill would need.”

Congressional failure to legislate may be the best chance federal prisoners have, which is simply to hold on to the imperfect system already in place.

Semafor, Republicans eye a crime bill for Trump, and for the midterms (September 17, 2025)

Criminal Reforms to Immediately Make Everyone Safe Act of 2025 (H.R. 4922)

Bill to lower the age at which a minor may be tried as an adult in DC to 14 years of age (H.R. 5140)

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Sentencing Project, Letter to Rep James Comer (September 15, 2025)

Stop Illegal Entry Act of 2025 (H.R. 3486)

~ Thomas L. Root

Correctional Officer Mental Health Forgotten Issue, New Video Says – Update for September 19, 2025

Leave a comment

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

PRISON DOESN’T JUST DRIVE INMATES CRAZY

A 21-minute documentary, “Behind the Wall,” released last week on YouTube, spotlights a critical issue in America’s jails and prisons that is much less discussed than inmate mental health: the toll of trauma on correctional officers.

Behind the Wall explores the human cost for those tasked with maintaining order in a system that can be dehumanizing for anyone who touches it.

Through the voices of correctional officers, the film reveals how the work impacts their physical and mental health, their families, and their communities — and calls for wellness programs dedicated to supporting corrections staff.

Corrections 1 said the film “continues a body of documentary work recognized globally for bringing attention to the realities of prisons and the urgent need for systemic change.”

I found the video sobering and insightful, not the whiny woe-is-us plaint I usually hear from Bureau of Prisons union reps. The 21 minutes I devoted to watching the program were well spent.

I had an inmate reader scoff at my report on this earlier in my newsletter. He expressed complete uninterest, even disdain, in any discussion on the mental well-being of correctional officers.  Obviously,  COs are human beings. If prisoners want to be treated decently, they have to be equally interested in seeing that those around them – including COs – are treated decently.

Beyond that, there’s some real inmate self-interest here. COs who are mentally stressed, unable to control depression or rage, or slipping into substance abuse are less likely to have professional and courteous interactions with their wards.  From gratuitous violence to simple refusal to help get a sick prisoner to medical services, COs suffering from personal crises are unlikely to be of much help to inmates suffering their own.

Corrections1, ‘Behind the Wall’ documentary highlights toll of prison work on correctional officers (September 9, 2025)

YouTube, Behind the Wall

~ Thomas L. Root

The 65% Law (And Other Silliness) – Update for September 18, 2025

Leave a comment

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

EASTER BUNNY SAYS 65% LAW GOES INTO EFFECT ON NOVEMBER 1ST

I would say the silly season is upon us, but that would wrongly imply that it ever left.

Last week, I had a half-dozen questions about changes in the First Step Act to provide relief to people with gun convictions under 18 USC § 924, about how the Armed Career Criminal Act’s drug predicates are changing, and – of course – how the long-anticipated “65% law” is about to go into effect. And every one of the questions said the same – it’s all happening on November 1st.

I repeat what has become my annual myth-busting ritual over the past decade:

  • No Guideline amendment becoming effective on November 1st will apply to anyone who has already been sentenced (that is, become retroactive). This is unfortunate, because the amendments represent fundamental changes that alter how judges impose sentences, manage post-conviction supervision, and evaluate requests for sentence reductions. But the sad fact is that the Commission proposed retroactivity for a few of the changes and then failed to adopt it for any of this year’s slate of changes.

And what will Congress do? Well, yesterday, the House passed H.R. 5140, lowering the age for which youth offenders in the District of Columbia can be tried as adults for certain criminal offenses, changing the threshold to 14 years of age. The Hill reports that “Republicans are set to vote on several other bills relating to D.C. crime later this week as they carry on President Trump’s crusade against crime in the nation’s capital after his 30-day takeover of the city’s police force expired.”

It’s a safe bet that no one in Congress has the stomach to pass any bill that will ease criminal laws or help prisoners.  The crusade, as The Hill described it, is against crime, not for crime.

  • This means that there is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of their time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off. Nothing, nada, zilch, bupkis.

As the Federalist – commenting on the mentally ill suspect accused of stabbing a Ukrainian immigrant to death last month in Charlotte, North Carolina – said last week, “Instead of buying into the dangerous lie that mass incarceration doesn’t work, we should be building more prisons and sending violent criminals there for lengthy sentences… What we’ve been doing for years now is dangerous and morally indefensible. Releasing violent criminals onto the streets, as White House deputy chief Stephen Miller said Tuesday, is a ‘form of political terrorism’ — perpetrated by Democrat elected officials against the people who live in their jurisdictions.”

Do these people sound like they’re interested in any common-sense criminal justice reform? Is there an Easter Bunny?

I am sure that I will have to write this again next year.  And the year after that.  And the year after that. Ad infinitum.

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Federalist, We Need To Bring Back Mass Incarceration And Involuntary Commitment (September 10, 2025)

~ Thomas L. Root