All posts by lisa-legalinfo

How Do You Spell ‘Give Me A Brak’? – Update for September 16, 2025

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

3rd CIRCUIT HELPS OUT LITIGANT WITH THE ‘LEGAL JARGIN’

Chris Lauria, detained in the Allegheny (Pennsylvania) County Jail, sued some corrections officers for excessive force and deliberate indifference. Chris proceeded pro se, and he wasn’t very good at it. At one point, he asked the court to appoint an attorney to represent him because he did not “speak Legal Jargin.”

Chris, like many pro se litigants, struggled in opposing an F.R.Civ.P. 56 motion for summary judgment that the COs had filed, which argued that the case should be thrown out because Chris had not exhausted administrative remedies by going through the jail grievance system first. The COs filed an affidavit from the jail warden that no grievance from Chris had ever been scanned into the system. Chris wrote back that he had been in the Special Housing Unit and had slipped his grievance under the door for pickup, the usual procedure for people in the SHU and only way he had to file.

In granting summary judgment, the District Court relied in large part on a 3d Circuit holding in United States ex rel. Doe v. Heart Solutions, PC, a 2019 case that held that an unsworn statement not made under penalty of perjury cannot be considered in deciding a Rule 56 summary judgment motion. The District Court concluded that Doe meant it “cannot consider the unsworn statements related to exhaustion as part of its summary judgment analysis.”

But Rule 56 has an escape hatch: Rule 56(e) permits a court to issue appropriate orders when “a party fails to properly support an assertion of fact.” Courts have the discretion to allow litigants to address errors in their summary judgment materials, including by allowing additional time for the resubmission of unsworn allegations in supplemental affidavits.

Last week, the 3d Circuit reversed the District Court and reinstated Chris’s lawsuit. It held that the District Court had expanded the scope of the Doe holding “in a small yet significant way. In Doe, we held that statements that are both unsworn and not given under the penalty of perjury are ‘insufficient to create an issue of fact on summary judgment’… But our holding in Doe does not compel courts to completely disregard unsworn statements when assessing the propriety of summary judgment: such statements may inform a court’s decision pursuant to [Rule] 56(e) to issue appropriate orders when “a party fails to properly support an assertion of fact.”

District courts have “ample discretion to call upon the parties to remedy the defects [in summary  judgment materials], by submitting supplemental affidavits or otherwise,” the Circuit said, and “[i]n determining whether to exercise this discretion, courts are permitted to consider the totality of the allegations made, both sworn and unsworn.”

The 3d didn’t tell the District Court whether to give Chris a chance to resubmit his statements under penalty of perjury, but underneath the “legal jargin,” the implication that the Circuit thought the District Court should consider that the failure to do so “appeared to be the product of a pro se litigant’s ignorance of procedural rules — and had not been objected to by Appellees in their summary judgment briefing,” Chris should get a procedural break.

Lauria v. Lieb, Case No. 24-1461, 2025 U.S. App. LEXIS 23622 (3d Cir. September 12, 2025)

United States ex rel. Doe v. Heart Solutions, PC, 923 F.3d 308 (3d Cir. 2019)

~ Thomas L. Root

Shocking News – BOP Healthcare ‘Unacceptable’ – Update for September 15, 2025

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

DOG BITES MAN

In journalism, a ‘dog bites man’ story is one that is completely unsurprising and unremarkable. Last week, in a perfect example of this genre, the Dept. of Justice Office of Inspector General reported that yet another Bureau of Prisons facility was providing grossly substandard healthcare to inmates.

On Wednesday, the OIG issued a report on its unannounced inspection of FDC SeaTac, the detention center located about a thousand yards south of SeaTac Airport between Seattle and Tacoma, Washington. The inspection was conducted under the OIG’s authority granted in the Federal Prison Oversight Act, which requires regular independent reviews of BOP facilities.

The inspection, which occurred last December, found only three out of the FDC’s nine nursing positions and one of two pharmacist positions were filled. “At the time of our inspection,” the Report said, “10 of 20 Health Services Department positions were vacant, including the Clinical Director position (which had been vacant for at least 18 months). Moreover, based on the BOP’s own staffing projection tool, the institution appears to require a doubling in the size of its Health Services Department—from an authorized level of 20 positions to 40 positions—to meet its healthcare needs.”

The report was the sixth issued by the OIG on unannounced inspections of BOP facilities, all of which were unstinting in their criticism of BOP healthcare. A report that yet another BOP facility was not meeting inmate medical needs was

Even the FDC SeaTac Health Services Department leadership called health services staffing a crisis. The short staffing meant that Health Services “had to prioritize the provision of emergency care to inmates and we identified extensive delays in care for both routine and serious health concerns. For example, we identified concerns with FDC SeaTac’s ability to provide medical care to inmates who submit medical care requests. We selected a sample of 29 medical requests that appeared to be among the most serious, including for respiratory distress and severe pain, and found that 62 percent (18 of 29) were never addressed by a healthcare provider. We also determined that FDC SeaTac was unable to provide timely outside medical appointments for inmates with conditions that could not be addressed at the institution.”

As of November 2024, SeaTac had a backlog of 480 blood draw orders more than 30 days past due, again due to staffing shortages. The Report said, “Health Services Department employees told us that without blood test results they could not appropriately monitor the health of inmates with chronic conditions, such as diabetes, or diagnose new illnesses. For example, more than half of diabetic inmates whose records we reviewed had not received necessary diabetic testing within recommended time frames.”

OIG staff also identified unsafe practices unrelated to staffing. Crushed pills were stored loosely in plastic bags. Exam tables were filthy. Hazardous medical waste bins overflowed. Expired medications were still in use and lab specimens were left unrefrigerated. Insects crawled through clinical areas, and staff food was stored alongside medical supplies.

Writing in Forbes, Walter Pavlo said, “The inspection paints a picture not just of underfunding but of dangerously neglected standards of care.”

Sen Patty Murray (D-WA) called the conditions at the detention center unacceptable. “Individuals in federal detention should not be forced to risk their lives because they can’t get urgent medical issues addressed,” she said in a prepared statement. “I’m reaching out to the Bureau of Prisons about this report—much more needs to be done to make sure people in federal custody can get the health care they need.”

Meanwhile, last Friday, DOJ announced more than 50 new measures aimed at reducing suicides among prisoners in federal custody. The announcement follows recommendations from a department-wide working group tasked with developing strategies to address suicide in prison and jail.

While federal facilities record a lower suicide rate compared to state prisons and local jails, officials said, DOJ must work to prevent every possible death. The new framework, outlined in the Report on Actions to Reduce the Risk of Suicide by Adults in Federal Custody and Advance a Culture of Safety, sets five objectives: expanding information sharing, improving access to mental health care, fostering healthier facility environments, reducing opportunities for self-harm, and forming policy through data-driven research.

Spokesman-Review, Federal inspection finds an inmate healthcare ‘crisis’ at SeaTac detention center amid health worker shortage (September 10, 2025)

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Detention Center SeaTac (September 10, 2025)

Federal Prison Oversight Act, Pub.L. 118-71, 138 Stat. 1492 (July 25, 2024).

Shore News Network, Justice Department launches sweeping reforms to curb suicides in federal custody (September 12, 2025)

Forbes, Troubling Findings At FDC SeaTac: A 2025 OIG Inspection Report (September 10, 2025)

~ Thomas L. Root

Failure to Anticipate Is Not Ineffective Assistance – Update for September 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.

Should Have Seen That Coming

Tyree Neal pled guilty to conspiracy to distribute cocaine in violation of 21 USC §§ 841(a)(1), (b)(1)(C), and 846. At his sentencing, the district court found that Ty’s prior Illinois cocaine conviction supported a recidivism enhancement under § 841(b)(1)(C) that raised his maximum sentence from 20 years to 30 years. The district court hammered him with 30 years.

Two years after Tyree lost his appeal, the 7th Circuit held in United States v. Ruth that under the “categorical approach,” because Illinois’s definition of cocaine is broader than the federal definition, an Illinois conviction for cocaine delivery could not support a recidivism enhancement under 21 USC § 841(b)(1)(C). This meant that if Ty were sentenced today, his maximum sentence would be 20 years.

Ty filed a 28 USC § 2255 habeas corpus motion arguing that his appellate, sentencing, and plea attorneys were all constitutionally deficient because they failed to anticipate the argument that ultimately won in Ruth. Ty claimed they should have seen it coming and raised it in his case.

The district court denied his § 2255 motion. Last week, the 7th Circuit agreed.

The Circuit said the proper inquiry is “an objective assessment of counsel’s performance considering the options available to the defense.” Considering his appellate attorney, the 7th agreed that “looking back, it is fair to say the Ruth argument was stronger than those appellate counsel made (if that is not already apparent from the outcome of Ruth compared to Neal’s direct appeal). But we cannot conclude the Ruth argument was “clearly stronger” at the time of Neal’s appeal.

“A significant obstacle to comparison is that the arguments aimed at different goals. As an appellate lawyer must, counsel curtailed the number of issues by focusing on Neal’s conviction. If her arguments prevailed, Neal would have had a second opportunity for trial and acquittal. A successful Ruth challenge would have left Neal with a 20-year sentence. Those different ends do not affect the likelihood of success for their different means, but they would influence an attorney’s professional judgment about the “strongest” issues for appeal. Although we can imagine situations where an argument against a defendant’s sentence is strong enough that it must be raised even if in the alternative, appellate attorneys are not always required to pick issues with a higher likelihood of success but a lower reward.”

“Holding that appellate counsel provided ineffective assistance would thus encourage a kitchen-sink approach to advocacy,” the Circuit said, “the implicit logic being that she should have made the Ruth argument in addition to the issues she raised, not instead. Would an attorney still think we would find the Ruth argument persuasive if she knew it shared a limited page-count with Neal’s plea arguments? “As for sentencing counsel, the 7th said, he did what Ty asked him to, attackng the enhancements for use of violence, obstruction of justice, and reckless endangerment. After Neal provided “the names of a number of witnesses that he wanted counsel to interview,” counsel retained an investigator to interview those witnesses, subsequently spoke with several, and subpoenaed them to appear at Ty’s sentencing. Counsel also negotiated a plea deal that, if the court had followed it, would have given Ty the same 20-year sentence that a Ruth issue would have given him.

The Circuit said,

After Ruth, we can comment that sentencing counsel’s attempts to lower Neal’s offense level and convince the district court to exercise its discretion leniently were not the best possible approach to reducing Neal’s exposure. But it is difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy.

Neal v. United States, Case No. 23-1722, 2025 USApp LEXIS 23018 (7th Cir. Sept 5, 2025)

United States v. Ruth, 966 F.3d 642 (7th Cir. 2020)

~ Thomas L. Root

Some Bureau of Prisons Shorts – Update for September 11, 2025

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

BOP WEEK

More Money: Under President Trump’s proposed 2026 federal pay raise, most federal employees will get a 1% across-the-board pay increase.  However, some federal law enforcement personnel will get an additional 2.8% pay increase (3.8% total) matching the planned military pay raise for 2026.

Last week, the Office of Personnel Management said that Bureau of Prisons correctional officers will be included in the 3.8% federal law enforcement 3.8% pay raise.

Federal News Network, OPM to create special salary rate for Trump’s planned law enforcement pay raise (September 3, 2025)

Appeals Hearing on Transgender Injunctions: A US Court of Appeals for the DC Circuit panel last week showed skepticism that it should overturn preliminary injunctions blocking President Trump’s executive order requiring the transfer of 19 federal prisoners who are transgender women to male prisons.

Last winter, a US District Court judge granted an injunction against the transfers, finding they would likely violate the 8th Amendment’s prohibition against cruel and unusual punishment.

Last week, a three-judge appeals panel heard administration arguments that the injunction against the January 20th executive order – that directed the Attorney General to bar people assigned male at birth from women’s prisons and ordered the BOP to revise gender-affirming medical care policies – should be lifted. A lawyer for the coalition of 19 trans women incarcerated in federal women’s prisons who had challenged their transfer to men’s prisons urged the panel to affirm the injunctions and prevent further sexual violence, telling the panel, “This isn’t about some abstract questions, philosophical debates. This is about the constitutional limits on prison officials’ ability to ignore known and serious violence risks.”

During arguments last week, Senior US Circuit Judge Raymond Randolph said that the BOP’s conduct in the case did not seem to follow the requirements set in Trump’s executive order. Randolph noted that a provision of the Prison Rape Elimination Act requires the BOP to ensure an inmate’s safety when considering a transfer to a new prison, which did not appear to be followed in several of the plaintiffs’ cases.

A decision on the case has not yet issued.

Doe v. Bondi, Case No. 25-5213 (DC Cir, oral argument September 5, 2025)

Courthouse News Service, DC Circuit dubious of Trump effort to send 19 trans inmates to male prisons (September 5, 2025)

Big Brother Will Be Watching:  The BOP is asking private industry and community groups to propose better ways to monitor prisoners on home confinement.

The BOP has requested feedback on whether technology, virtual supervision, and hybrid service models can serve as substitutes for traditional halfway houses and day-reporting centers by using biometric tools such as geofencing, video check-ins, and electronic bracelets as potential compliance measures. Some companies already market smartphone apps that use facial recognition and liveness detection, along with GPS-enabled wearables and geofencing dashboards.

The inquiry reflects longstanding strains in the prerelease system due to rising contractor costs, limited facility availability in rural areas, and growing demand for pre-release placements due to the First Step Act and Second Chance Act.

For corrections officials, biometric monitoring systems promise real-time accountability, scalability, and reduced staffing needs. Civil liberties advocates, however, see risks, having described electronic monitoring as a form of “digital imprisonment,” warning that malfunctions, restrictive rules, and intrusive data collection can turn homes into “e-carceration” sites.

Responses to the BOP solicitation for proposals are due by September 30th.

Biometric Update.com, Federal prisons turn to biometric monitoring for reentry programs (September 3, 2025)

~ Thomas L. Root

8th Circuit Affirms ‘Cookie-Cutter’ Approach to Felon Firearm Disenfranchisement – Update for September 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.

ONE AND DONE

The 8th Circuit last week underscored its hostility to any “as applied” 2nd Amendment challenge to the 18 USC § 922(g)(1) felon-in-possession statute.  The Circuit affirmed its holding in United States v. Jackson that “the federal prohibition on possession of firearms by felons is constitutional as a categorical matter. There is no need for a felony-by-felony analysis, and no requirement of an individualized determination of dangerousness as to each person in the class of prohibited persons.”

In 1991, Anthony Browne was a member of the Black Gangster Disciples motorcycle gang/criminal organization. He and some other BGDs followed a rival gang member home. One of Browne’s fellow gang members shot up the place, hitting the intended victim’s mother. While Tony wasn’t the triggerman, he was convicted of committing willful injury and criminal gang participation and got 10 years in prison.

After being released from prison in 1998, Tony got a computer science degree from the University of Iowa and worked for the next 20 years as a software engineer. In 2021, the Dept of Defense granted him a security clearance as part of his job. He also earned an executive order in 2005 from the Iowa governor restoring many of his rights (but not the right to own guns). At age 52, Tony has not had a brush with the law in 34 years.

No matter, the 8th said last week. A “legislature may dispossess forcible felons as a categorical matter,” the Circuit said, and Tony’s argument that under the 2nd Amendment, he is entitled to issuance of a handgun permit unless the sheriff concludes after an individualized determination that Browne is “currently dangerous,” is nothing more than an end run around that.

Writing in The Reload, Jake Fogleman observed that “while he’s no Bryan Range or Melynda Vincent, the distance from [Tony’s] conduct that could credibly lead to him being labeled ‘dangerous’ is significant. There do not appear to be any recent indications that he poses an ongoing threat to the community. On the contrary, he has by all accounts turned his life around. Browne argued his recent history indicates he’s peaceable and, therefore, should have his rights restored. The panel disagreed… ‘Browne’s argument is inconsistent with the relevant history and this court’s conclusions in Jackson. Early American legislatures ordered disarmament and authorized punishment of death for forcible felonies and even for some non-violent offenses… [W]e conclude that the government has satisfied its burden to show that a lifetime restriction on the right of forcible felons to possess firearms, subject to a gubernatorial pardon, is consistent with the Nation’s historical tradition of firearms regulation.”

Browne v. Reynolds, Case No. 24-1952, 2025 U.S.App. LEXIS 22449 (8th Cir. Sept 2, 2025)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

The Reload, Analysis: Eighth Circuit Ruling Shows Thorny Legal Questions Still Surround Rights Restoration Push (September 7, 2025)

~ Thomas L. Root

10th Circuit Says 2nd Amendment Inquiry on § 922(g) Should Focus on Future Dangerousness – Update for September 8, 2025

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

MINORITY REPORT

A divided 10th Circuit panel last week added a disturbing gloss onto the issue of the constitutionality of 18 U.S.C. § 922(g) (which prohibits felons, drug users and others from possessing guns), suggesting that courts should consider a defendant’s future dangerousness in an “as applied” challenge to whether the 18 USC § 922(g)(3) prohibition on unlawful drug users possessing guns violates the 2nd Amendment.

The Circuit’s approach is reminiscent of the Tom Cruise dystopian movie “Minority Report,” where the police arrested people for crimes they had yet to commit.

Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2nd Amendment.

The 10th Circuit reversed.

In the wake of the Supreme Court’s decision in United States v. Rahimi, the 10th noted, “the appropriate [2ndAmendment] analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” The Circuit complained that the district court found that “our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.  But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.”

The government argued that “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.'” Jared, on the other hand,  contended “marijuana users are not in a class of dangerous people.” The 10th said that to determine whether § 922(g)(3) as applied to Jared was “consistent with” the government’s dubious claim, it “must show non-intoxicated marijuana users pose a risk of future danger,” and it remanded the case to the district court for additional fact-finding.

It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2ndAmendment challenge.”

United States v. Harrison, Case No. 23-6028, 2025 U.S.App. LEXIS 21978 (10th Cir. Aug 26, 2025)

~ Thomas L. Root

5th Circuit on the Gun Possession “Dangerousness” Bandwagon – Update for September 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.

5TH CIRCUIT SUGGESTS 922(g)(1) CAN’T APPLY TO NONVIOLENT OFFENDERS

Earnest Clark was on probation for a state aggravated assault with a gun charge when he was caught with yet another gun. He challenged his conviction for being a felon-in-possession (18 USC § 922(g)(1)) as violating his 2nd Amendment rights.

Last week, the 5th Circuit upheld his conviction but in a way that provides a roadmap for such “as-applied” challenges. (An “as-applied” challenge argues that while the F-I-P statute may not always violate the 2nd Amendment, it does violate the 2nd Amendment as it is applied to the individual facts of the defendant’s case).

The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.

What’s more, the 5th held, Earnest possessed the gun while on probation, and § 922(g)(1) is constitutional when applied to those who possess firearms while on probation or supervised release.

The case strongly suggests that, consistent with the 2nd Amendment, someone with a nonviolent conviction who is not on probation cannot be convicted of F-I-P. What’s more, the decision advances the national trend of drawing a constitutional line between violent and nonviolent predicate offenses in F-I-P cases.

United States v. Clark, Case No. 24-60531, 2025 U.S.App. LEXIS 21452 (5th Cir. August 21, 2025)

~ Thomas L. Root

Trump Seeks Crime Reform… And It’s Not First Step Act 2.0, Either – Update for September 4, 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.

GOOD NEWS AND BAD NEWS
McTrump the Crime Dog

President Trump said last Wednesday that Republican leaders in Congress were working with him on a “comprehensive crime bill” in what the New York Times called “his latest effort to push the issue of crime to the foreground of American politics.”

“It’s what our Country needs, and NOW!” Trump said on his Truth Social platform. “More to follow.” He said both House and Senate Republican leadership were working on the bill, but he offered no details.

A new crime bill would normally be a welcome opportunity to amend the First Step Act, especially to address the Federal Time Credit program. However, the bad news is that Trump does not appear to have a crime bill of that kind in mind.

Targeting what he calls “out of control” crime was central to Trump’s 2024 presidential campaign, although US crime is near its lowest level in decades. He has raised the issue in the last two months, with the deployment of National Guard in Washington DC to allegedly control crime there.

Politico reported last week that Trump’s latest comments have puzzled Republicans on Capitol Hill, who don’t know what “comprehensive” measure the president is talking about. Trump discussed extending his control over the DC police with House Speaker Mike Johnson (R-LA) last Tuesday. The House Oversight Committee, which has jurisdiction over DC issues, plans to advance some bills this month to crack down on juvenile crime, reform the education system, and unwind certain policing policies. However, Politico notes, “it’s the Judiciary Committee that would have to advance any crime-related bills that are national in scope.”

Trump ramrodded First Step through Congress in 2018. But running in 2024, Trump distanced himself from his own achievement, barely mentioning FSA on the campaign trail. In 2023, Florida’s governor and a rival presidential candidate, Ron DeSantis, attacked FSA as a “jailbreak bill” and pledged to repeal it.

And while Trump did appoint Alice Marie Johnson, a woman he pardoned in 2020, as pardon czar soon after returning to the White House, “he doesn’t appear eager,” the New York Times said last week, “to remind voters of his criminal justice reform measures… Instead, Trump is pushing for tougher sentencing, including against minors.”

“They’re children, but they’re criminals,” Trump said at last Tuesday’s marathon Cabinet meeting as he turned to his attorney general, Pam Bondi. “We are getting that changed, Pam, I hope, because you have 14-year-old kids that are evil, they’re sick, and they have to be put away.”

At the same meeting, Trump said he wants to see the death penalty imposed on every person convicted of murder in DC. “If somebody kills somebody in the capital, Washington, D.C., we’re going to be seeking the death penalty,” Trump said. “And that’s a very strong preventative.”

Trump appointed Fox News commentator Jeanine Pirro as US Attorney for the District of Columbia after even Republicans refused to confirm firebrand Ed Martin for the post. Pirro has talked a tough game in support of Trump’s theme that DC crime is out of control, demanding that her prosecutors bring the harshest charges allowable, even for minor infractions. Now, Salon reported this past weekend, “her aggressive posture is colliding with real-world constraints, exposing both her limitations and the fragility of politicized law enforcement.”

Pirro recently revealed that she is getting help from military lawyers, because her office is short 90 prosecutors and 60 investigators and paralegals. DC federal courts, which normally process about six new criminal cases per week, now face six or more cases per day, many stemming from low-level offenses that would’ve been diverted or even dismissed previously.

The increase in workload may be unique to DC, but the staffing is not. According to reports I have received, seasoned AUSAs and support staff have been resigning from US Attorneys’ offices around the country. One federal defense attorney told me last week that the quality of work and responsiveness of AUSAs in his district, the Southern District of Ohio, has fallen dramatically since January. “It’s hard to get a call back,” he said.

Salon said last week, “It’s clear that Pirro’s [charging] directives are unsustainable.” With so many people around the country heading for the exits, US attorneys’ offices may be unable to execute on a harsh new crime bill, even if one passes. That does little to address the bad news that an opportunity to reduce recidivism even more by tweaking FSA – and helping prisoners in the process – may be lost in the tough-on-nonexistent–crime posturing.

Writing in Sentencing Law and Policy last week, Ohio State University law professor Doug Berman observed that “[a] decade into the Trump era, I have learned not to take too literally or too seriously what Donald Trump says on social media.  But given that Prez Trump and his GOP allies are viewing crime fighting and crime policy as a winning political issue (and also that Democrats are struggling with a response… new political talk of a new “Comprehensive Crime Bill” makes lots of sense… But, of course, the devil is in the details when it comes to enacting big new federal legislation and in navigating the modern politics and policy-making of crime and punishment.  The First Step Act was truly the culmination of decades of federal criminal justice reform debates, and it is unclear what sets of criminal justice proposals will get enough support in Congress to get to the desk of the President. (I assume a crime bill would not find a way to be immune from the Senate filibuster, so at least 60 Senate [votes] would seem to be a necessity for any bill.)”

New York Times, Trump Says Republicans Are Working on a ‘Comprehensive’ Crime Bill (August 27, 2025)

Politico, Republicans scratch their heads over Trump’s ‘comprehensive’ crime bill (August 27, 2025)

New York Times, In Trump’s 2nd Term, More Incarcerations, Less Talk of Reform (August 27, 2025)

Washington Post, Trump wants expanded death penalty, longer control over police in D.C. (August 26, 2025)

Salon, Fox News star’s jump to the Trump administration is backfiring (August 31, 2025)

Sentencing Law and Policy, Is it too early to speculate about what could be in a new “Comprehensive Crime Bill”? (August 27, 2025)

~ Thomas L. Root

Busy Criminal Caseload for SCOTUS – Update for September 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.

LOTS OF CRIMINAL CASES ON SUPREME COURT FALL DOCKET

The Supreme Court has presaged the start of its October 2025 term by releasing its initial oral argument. Over half of the 19 cases scheduled for oral argument are criminal law cases or closely related to criminal law, and a third of the total are sentencing cases. The number of such cases is substantially larger than the Court’s usual docket.

The best are:

Barrett v. United States, asking whether the 5th Amendment double jeopardy clause permits two sentences for a single act that violates both 18 USC §§ 924(c) and 924(j).

Ellingburg v. United States, asking whether criminal restitution under the Mandatory Victim Restitution Act is penal (punishment) for purposes of the Constitution’s ex post facto clause.

Rico v. United States, asking whether the fugitive-tolling doctrine – which holds that criminal defendants should not receive credit toward prison sentences for time that they have escaped – should be extended to cases where the defendant absconds from supervised release.

Easily the most consequential are Rutherford v. United States and Fernandez v. United States. Rutherford, brought by a defendant serving stacked § 924(c) sentences of 32 years for carrying a gun in two robberies, asks whether a district court may consider disparities created by the First Step Act’s prospective changes in sentencing law – such as destacking § 924(c) punishments – when deciding if “extraordinary and compelling reasons” warrant a “compassionate release” sentence reduction under 18 USC § 3582(c)(1)(A)(i). Fernandez is similar, asking whether a combination of “extraordinary and compelling reasons” that may warrant 18 USC § 3582(c)(1)(A) compassionate release can include reasons that may include grounds that could be raised to set aside a sentence under 28 USC § 2255.

Rutherford has collected well over a dozen amicus briefs from groups as diverse as former judges, former Bureau of Prisons officials, FAMM, NAACP, NACDL and public defenders. Several prominent conservative groups are represented as well. Every amicus brief except one supports defendant Rutherford, and that one – by former Sentencing Commission officials – officially supports neither side but does argue that the USSC’s position that Rutherford is entitled to raise a change in the law as an extraordinary and compelling reason is consistent with Congress’s grant of broad authority to the Commission to define “extraordinary and compelling reasons” in the statute.

Writing for Right on Crime, a conservative nonprofit, former prosecutor Rachel Wright said, “Punishment should also fit the crime, but in Rutherford’s case, the sentence far exceeds what Congress now deems appropriate. No judge should be forced to act as a rubber stamp for outdated policies. We must ensure that justice keeps pace with legislative reform. Right On Crime supports Rutherford’s appeal, saying it reflects conservative values: limited government, evidence-based decision-making and fairness in sentencing. By allowing judges the discretion to recognize outdated penalties as extraordinary, the court could uphold both accountability and proportionality while conserving taxpayer resources.”

Rutherford and Fernandez may not be the weightiest sentencing questions before the Supreme Court this fall. Writing in the Sentencing Matters Substack, Ohio State University law professor Douglas Berman (who filed an amicus brief supporting defendant Rutherford) observed that Ellingburg v. United States could be “the sleeper case of the Fall because it may require the Justices to grapple with the definition of ‘punishment’ for constitutional purposes.”

Barrett v. United States, Case No. 24-5774 (argument October 7, 2025)

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

Rico v. United States, Case No. 24-1056 (argument November 3, 2025)

Rutherford v. United States, Case No. (argument November 12, 2025)

Fernandez v. United States, Case No. 24-556 (argument November 12, 2025)

Right on Crime, Why Conservatives Should Care About Sentencing Disparities: The Case of Rutherford v. United States (August 20, 2025)

Sentencing Matters Substack, Sentencing cases aplenty when SCOTUS returns, with notable friends chiming in (August 18, 2025)

~ Thomas L. Root

 

 

Government Seeks SCOTUS Review of 2nd Amendment Gun Possession by Pot Smoker Cases – Update for August 28, 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.

GUNS FOR DOPERS

The Supreme Court next month will take up a Dept of Justice request to hear a case on the constitutionality of 18 USC § 922(g)(3), the statute criminalizing possession of a gun by a drug user, even as the 11th Circuit weighed in last week with a holding that a user of medical marijuana cannot be prosecuted under the statute consistent with the 2ndAmendment.

The 5th Circuit held last winter that Ali Danial Hemani’s past drug use could not be relied on to prosecute him under § 922(g)(3). Limiting the statute to blocking gun possession only while a person is high effectively guts the statute, DOJ argues in its petition to the Supreme Court.

The government is seeking certiorari on four cases, asking the justices to focus on one involving Hemani, a dual citizen of the United States and Pakistan, who was charged with unlawfully owning a pistol because he regularly smoked marijuana.

Meanwhile, the 11th Circuit last week held that lawful users of medical marijuana under Florida law (despite the fact that possession and use are still unlawful under federal law) cannot be prosecuted under § 922(g)(3) for possessing a gun.

Two medical weed users brought an action in federal court for a declaratory ruling that § 922(g)(3) could not prevent them from having guns. The district court denied their request, holding that the laws and regulations at issue “were consistent with the nation’s historical tradition of firearms regulation and therefore did not violate the 2nd Amendment.”

After holding the case in abeyance until the Supreme Court decided Rahimi, the 11th reversed the district court. “After careful review,” the Circuit wrote, “we hold that the district court erred in concluding that the plaintiffs did not state a claim for relief. We reach this conclusion because, when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden. We therefore vacate the district court’s order…”

When the Government seeks Supreme Court review, it usually gets it. The constitutionality of § 922(g)(3) – which should have implications for § 922(g)(1) felon in possession – may make it onto the Supreme Court docket this coming term.

United States v. Hemani, Case No. 24-1234 (certiorari filed June 4, 2025)

USA Today, Guns or weed? Trump administration says you can’t use both (August 21, 2025)

Florida Commissioner of Agriculture v. Attorney General, Case No. 22-13893, 2025 U.S.App. LEXIS 21356 (11th Cir. August 20, 2025)

~ Thomas L. Root