All posts by lisa-legalinfo

Pardon Industry Grinds On Although Trump’s Not Signing – Update for August 27, 2025

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

PARDON OUR MESS

Senior Dept of Justice officials were left scrambling to interpret sweeping clemency orders that former President Joe Biden approved for thousands of federal prisoners in his final days in office, and they criticized the White House for falsely portraying the releases as limited to “nonviolent” offenders, according to internal emails revealed last week.

The records show that former Associate Deputy Attorney General Bradley Weinsheimer raised alarms immediately after Biden issued three autopen-signed warrants on Jan. 17, covering nearly 2,500 federal prisoners.

In a January 18th message to the White House and the DOJ Pardon Attorney, Weinsheimer wrote that one warrant granting clemency for “offenses described to the Dept of Justice” was so vague it could not be lawfully carried out.

Weinsheimer suggested that Biden provide “a list as to each inmate listing the offenses that are covered by the commutation.” He said Biden needed to clarify the “meaning of the warrant language” so the DOJ could implement it “in the manner intended by the President.”

Weinsheimer also pushed back against White House statements that the clemency recipients were only “non-violent drug offenders,” according to the emails. “In communication about the commutations, the White House has described those who received commutations as people convicted of non-violent drug offenses,” Weinsheimer wrote. “I think you should stop saying that because it is untrue or at least misleading.”

The clemency list included a prisoner who had killed a mother and her 2-year-old child to protect his drug business, another whose enforcer tortured an informant with a butane torch, and a Gangster Disciples member implicated in multiple murders and kidnappings.

Despite Weinsheimer’s warning, the White House promoted the mass commutations as relief for “non-violent drug offenses” and as the largest clemency action ever.

Biden later said he approved broad categories of inmates, leaving details on how to apply those standards to staff. The revelations come amid multiple probes by the Trump administration into Biden’s use of his autopen – a machine that automatically signs the President’s name to documents – for key decisions.

Meanwhile, President Trump – who at the start of his second term was as busy as Biden ever was with a clemency pen– has not granted a pardon or commutation in almost three months.

Trump granted multiple pardons every month from January through May (and, of course, did a massive clemency grant on Inauguration Day for the January 6th rioters). You may remember that at the time, Trump’s pardon of 1,500 J6ers was described in news accounts as a “last-minute, rip-the-bandage-off decision.”  In fact, one White House advisor said that as Trump’s team wrestled with the issue, “Trump just said: ‘F -k it: Release ’em all.'”

However, despite rumors to the contrary, Trump has gone “full stop” on commutations and pardons since the end of last May.

At the time, media reports said that more clemency grants were expected “in the coming days.” So what happened?

Writing in Sentencing Law and Policy last week, Ohio State law professor Doug Berman wondered whether some of the pundit criticism around the last group of grants may have had some impact on how Trump is thinking about clemency action.

No one can be sure, but the pardon industry continues apace, with reports still being published about some people spending millions to buy access to the President for clemency. Last week, I had two prisoners separately say that the rumor mill reports a big commutation/pardon push in a month. I consider that to be myth. With a major push against supposed gangs rampaging in Washington, DC, Trump is not likely to think this is a good time to let some people out of prison.

Bloomberg Law, How a $30 Million Pardon Scheme Failed Before It Got to Trump (August 18, 2025)

New York Times, Flattery, Lobbyists and a Business Deal: Crypto’s Richest Man Campaigns for a Pardon (August 9, 2025)

Washington Examiner, Biden ignored DOJ warnings over legally flawed autopen pardons (August 19, 2025)

Axios, “F–k it: Release ’em all”: Why Trump embraced broad Jan. 6 pardons (January 22, 2025)

New York Post, Biden DOJ ripped White House over clemency grant to ‘non-violent offenders’: ‘Stop saying that because it is untrue’ (August 19, 2025)

~ Thomas L. Root

No Surprises in Retro Guidelines Sentence Reductions, 3rd Circuit says – Update for August 26, 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 SAYS DUE PROCESS APPLIES TO RETROACTIVE GUIDELINE SENTENCE REDUCTIONS

Paul Harmon pled guilty in 2021 to one count of wire fraud. After the retroactive zero-point Guideline 4C1.1 – that let people with no criminal history points who met other requirements earn an extra two levels off their Guidelines offense score – Paul filed a motion under 18 USC 3582(c)(2) for a sentence reduction.

One of the requirements to qualify for the zero-point reduction is that the prisoner cannot have caused substantial financial hardship to any victims. because of a new, retroactive section of the Sentencing Guidelines, USSG 4C1.1.  The District Court, relying on a victim impact statement from the initial sentencing, denied the motion on the ground that Paul had caused substantial financial hardship to his victims. The judge offered Paul no chance to challenge the victim statement at the sentence-reduction stage.

Paul appealed, arguing that the district court’s reliance on the victim statement without giving him a chance to challenge it violated his due process rights.

The 3rd Circuit held that USSG 6A1.3(a), which outlines due process protections for sentencing, also applies to the consideration of motions for sentence reduction under 18 USC 3582(c)(2). The Circuit ruled that defendants have a due process right not to be sentenced based on invalid premises or inaccurate information. While defendants have fewer rights in sentence-reduction proceedings than at initial sentencings, basic due process protections still apply where the information is “new.”

Information is “new,” the 3rd ruled, when it is relied on for the first time to find material facts. This definition ensures defendants have an opportunity to contest information when it matters under the law. But in Paul’s case, the victim impact statement was not “new information” because Paul knew of it at sentencing, where it was relevant to the § 3553(a) sentencing factors, and he had reason and opportunity to dispute it.

The 3rd Circuit noted that the 5th, 7th, 8th and 11th Circuits agree with it, but the 9th has held that USSG 6A1.3(a) does not apply on sentence reduction motions.

United States v. Harmon, Case No. 24-2057, 2025 U.S.App. LEXIS 20655 (3d Cir, Aug 14, 2025)

~ Thomas L. Root

Of Fraud and Weed – Update for August 22, 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.

Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.


LEGISLATIVE ‘SHORTS’

Easing Up on Fraud Guidelines? Law360 reported last week on the U.S. Sentencing Commission interest in modifying the 2B1.1 theft/fraud guidelines.

The USSC said it will consider Guideline reforms to the outsized role of loss calculation in driving the Guidelines advisory sentencing range, one of several priorities the agency has marked for closer examination.

The examination includes a reassessment of the role of actual loss, intended loss and gain in guidelines calculation, and whether the fraud guidelines as they stand “appropriately reflect the culpability of a defendant and harm to victims.”

Also on the table are whether to adjust the applicable loss guidelines for inflation and adjust for the role the defendant played in the crime, including minor roles and those who abuse positions of trust.

Law360, Sentencing Commission Plans To Reassess Fraud Guidelines(August 7, 2025)

More on Rescheduling Marijuana: After telling donors earlier this month that he was considering rescheduling marijuana, President Trump said at an August 11th press conference, “We’re looking at reclassification, and we’ll make a determination over, I’d say, the next few weeks,” The Hill reported.

The Biden administration had sought to reschedule cannabis from Schedule I to the lesser Schedule III but left the process unfinished. The move would bring negligible changes in criminal justice reform but may pave the way for legislative or guidelines reform.

The Hill reported that Adam Smith, executive director of the Marijuana Policy Project, said the Biden rescheduling effort stalled due to a resistant DEA.

The Dept of Health and Human Services recommended in 2023 that marijuana be reclassified as a Schedule III drug, one that has a “moderate to low potential for physical and psychological dependence.”

The Hill, Trump signals push to finish Biden’s marijuana reform (August 15, 2025)

The Hill, Trump admin may reclassify marijuana: Would that make it legal in the US? (August 12, 2025)

~ Thomas L. Root


 

Hacks and Bells – Update for August 21, 2025

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

Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.

PROSECUTORIAL ‘SHORTS’

PACER Hack: A hack of the lawyer-filing side of the PACER case filing system discovered last month let a “nation-state” sponsored group of hackers steal petabytes of sensitive court data – such as sealed filings and presentence reports – using a system vulnerability that’s been known for years.

Politico reported on August 6th that officials said the theft affected at least a dozen district courts and mimicked a 2020 breach of the system.

Wired reported that the breach has pushed some courts onto backup paper-filing plans after sealed records were compromised, possibly exposing the identities of confidential informants and cooperating witnesses. The cyber intrusion was not particularly sophisticated, Politico said, a fact that should be deeply concerning.

Politico, Hack of federal court filing system exploited security flaws known since 2020 (August 12, 2025)

Politico, Federal court filing system hit in sweeping hack (August 6, 2025)

Wired, The First Federal Cybersecurity Disaster of Trump 2.0 Has Arrived (August 14, 2025)

Trump DOJ Can’t Unring the Bell: The Biden Dept of Justice indicted an LA deputy sheriff for an 18 USC § 242 civil rights violation, after he beat and pepper-sprayed a woman who was videoing him handcuffing a suspect.

The sound of a bell unringing?

However, after a jury convicted him, the DOJ changed hands. A Trump-appointed US Attorney asked the district court to sentence the deputy to probation.

After the court imposed a 4-month sentence, the US Attorney moved to dismiss the whole case under Federal Rule of Criminal Procedure 48, thus sparing the defendant even a day in jail.

Last week, the court refused the government’s motion.

The District Judge ruled that the “record reflects that the Government’s newest Rule 48(a) motion is motivated not by the discovery of new evidence or reconsideration of the case, but by disagreement with the Court’s decision to sentence Defendant to four months in prison… Put simply, the Government disagrees with the Court’s sentencing decision and is using Rule 48(a) to erase it. It has even acknowledged that this is its reason for seeking dismissal… Using Rule 48(a) in this way is contrary to the public interest. The government cannot circumvent the Court’s sentencing authority by waiting until after a sentence has been imposed to selectively dismiss charges with the goal of obtaining a desired result.

Order (ECF 134), United States v. Kirk, Case No. 2:24-cr-527 (CD Cal, Aug 8, 2025)

 

~ Thomas L. Root

Sizzling Hot, Drugs and Sex at the BOP – Update for August 19, 2025

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

Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.

BOP ‘SHORTS’

Hot Fun in the Summertime:  Forty House Democrats signed a letter from Rep Alma Adams (D-NC) last week to Bureau of Prisons Director William K. Marshall III expressing concern over the effects of extreme heat on BOP prisoners.

The letter asked 13 detailed questions about air conditioning in BOP facilities, including about prisons without AC or with broken systems, how many heat-related health incidents (illnesses, strokes, and deaths) have occurred since 2022, and any mitigation strategies used where prisoners and staff are in excessive heat.

The letter seeks a response by September 10, 2025.

Letter to William K. Marshall III (August 11, 2025)

BOP Unions Continue ‘Drug Poisoning’ Drumbeat:  It’s been a year since BOP employee Marc Fischer died after coming in contact with purported legal mail to a USP Atwater inmate that was soaked in a liquid “spice” mixture.  The death sparked a flurry of hand-wringing over BOP employees in danger that was not even quelled by autopsy results showing Mr. Fischer died of a heart attack, not exposure to any drugs.

The facts have not detained BOP staff unions, who last week issued a press release asking, “Does another staff member have to die before the Federal Bureau of Prisons finally takes the crisis of drugs entering prisons through the mail seriously? It’s now been a year since Marc Fischer—a longtime mailroom supervisor at U.S. Penitentiary Atwater and former Coast Guard member—lost his life after being exposed to contaminated mail, just before his planned retirement. Since then, nothing has changed. Dangerous substances continue to pour into federal prisons weekly, and staff are left to fight this epidemic with outdated technology and little support from the Bureau.”

The press release asserted that in recent incidents, “17 officers at Thomson were hospitalized after exposure to dangerous substances in the mailroom and required Narcan to survive. Days earlier, ten staff members at FCC Victorville suffered exposures over a four-day stretch.”

The BOP was a bit more circumspect: “We can confirm that several employees at the Federal Correctional Institution (FCI) Thomson have begun feeling unwell following a possible exposure to an unknown substance. Some employees were transported to a local hospital by emergency medical services (EMS).”

In a separate report, WDTV reported that 5 FCI Hazelton employees were taken to the hospital last Wednesday morning, according to the BOP, after being exposed to drugs. The report said, “Any time fentanyl or carfentanil is found, the officers are being sent to the hospital as a precaution…”

WTTV, Federal Prison Staff Still at Risk as Drugs Continue Flooding Through the Mail (August 13, 2025)

WDTV, Multiple FCI Hazelton employees exposed to carfentanil for 4th time this week (August 11, 2025)

Dublin Scandal Nets More Guilty Pleas:  Former BOP correctional officers Jeffrey Wilson and Lawrence Gacad have pled to sexually abusing female inmates at FCI Dublin, formerly a low-security female prison.

Wilson and Gacad were charged last June and entered pleas on August 4. They are the eighth and ninth BOP staffers to have either pled guilty or been convicted involving sexual abuse of Dublin inmates.  The BOP has already agreed to a $116 million payout to abused women.

Dept of Justice, Two More FCI Dublin Correctional Officers Plead Guilty To Sexually Abusing Female Inmates (August 7, 2025)

~ Thomas L. Root

Second Guessing from the Peanut Gallery – Update for August 18, 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.

Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.

CASE ‘SHORTS’

‘Structural Errors’ Are Not a ‘Pass,’ 11th Says: The Parnell brothers ran a big peanut factory that accidentally killed 90 people or so nationwide with dangerous bacteria in the company’s products. When an investigation showed they had been falsifying certifications that their products were pure, they were indicted for fraud.

The brothers hired a team of experienced defense attorneys for the well-publicized trial but got convicted anyway. After losing appeals, they filed 28 USC § 2255 motions claiming their lawyers were ineffective.

Back in 2010, the Supreme Court held in Skilling v. United States that in some cases, prejudice to a defendant can be presumed if he is denied a change of venue because of pretrial publicity. Such a denial is a structural error, one that affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself. Because a structural error “defies analysis by harmless error standards,” the Supreme Court has held, when such an error occurs, prejudice to the defendant is presumed.

The Parnells’ lawyers considered asking for a change of venue because of publicity but rejected it after investigation, because they concluded that a trial in the Albany, Georgia, area – where people understood peanut production and processing – could be better for defendants hoping to sell their argument that they were over-regulated and being scapegoated. In their § 2255 motions, the brothers this decision was deficient representation and – because the Skilling error was structural – they didn’t have to show that their lawyers’ blunder had prejudiced them. Instead, that could be presumed.

Last week, the 11th ruled that just because the underlying error might be structural did not mean that the Parnells’ claim that their lawyers had screwed up by not asking for a Skilling change-of-venue didn’t have to show prejudice. What was more, their Parnells’ lawyers – who brought about 150 years of trial experience to the table – had investigated whether to seek a change of venue and decided that the slim chance the Parnells could meet the Skilling standard and the possible benefits of a local jury where at least one juror understood how tough a business peanut processing could be, argued against seeking a change of venue.

“This case involves a challenge to a carefully conceived and thoroughly thought-out strategic decision made by two teams of experienced counsel after a full investigation,” the Circuit ruled. “It is not one of those rare, few and far between cases in which we will second-guess their strategic decision and find that they performed outside the wide range of reasonable professional assistance. They did not.”

Parnell v. United States, Case No. 22-13907, 2025 U.S.App. LEXIS 20328 (11th Cir. Aug 11, 2025)

Skilling v. United States, 561 U.S. 358 (2010)

Federal Territorial Jurisdiction Question Not Easily Answered: Federal prisoner  Jesse Perez committed a crime while locked up at FCI Petersburg. After being convicted at trial, he argued that the government had not proven to the jury that the crime was committed within the “special maritime or territorial jurisdiction” of the federal government, and – without that showing – the crime was not prosecutable in a federal court.

Last week, the Court ruled that the issue of “special maritime or territorial jurisdiction” has two parts. The jury must find as fact where the crime occurred, in this case at FCI Petersburg. Whether FCI Petersburg is within the special maritime or territorial jurisdiction of the federal government is a purely legal question that the judge, not the jury, decides.

In this case, however, the district court goofed. Under 18 USC § 7(3), a three-part test for special territorial jurisdiction requires (1) federal acquisition of the property; (2) state consent to federal (or cession of its own) jurisdiction; and (3) federal acceptance of jurisdiction. The district court failed to evaluate each element, instead just taking judicial notice that the prison was part of the special territorial jurisdiction of the United States because the government has “practical usage and dominion” over FCI Petersburg.

That’s not enough, the 4th Circuit said, sending the case back for the district court to apply the right test.

United States v. Perez, Case No. 24-4039, 2025 U.S. App. LEXIS 20396 (4th Cir. Aug. 12, 2025)

~ Thomas L. Root

‘Danger’ Is the Key to 922(g) constitutionality, Two Circuits Say – Update for August 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.

A COUPLE OF 922(g) OPINIONS UNDERSCORE “DANGEROUSNESS”

Two decisions last week on the constitutionality of 18 USC § 922(g)(1) – the felon-in-possession statute – and § 922(g)(3) – the drug user-in-possession subsection – convicted the defendants but reflected the United States v. Rahimi trend of focusing on physical danger to the public instead of mere status.

In Louisiana, John Morgan had a prior state conviction for unlawful use of a gun arising from his participation in a drive-by shooting. When he was caught with a gun soon after serving two years in a state joint, he was convicted of being a felon-in-possession.

On appeal, John argued that § 922(g)(1) violated the 2nd Amendment as applied to him. Last week, the 5th Circuit disagreed, affirming his conviction.

Looking at colonial-era “going armed” laws, the Circuit ruled that the 2nd Amendment permitted government to permanently disarm “individuals found to threaten the physical safety of another.” Each statute “restricts gun use to mitigate demonstrated threats of physical violence,” yet “does not broadly restrict arms use by the public generally.” Thus, “[t]he justification behind going armed laws, to ‘mitigate demonstrated threats of physical violence,’ supports a tradition of disarming individuals like Morgan pursuant to § 922(g)(1), whose underlying convictions stemmed from the… commission of violence with a firearm.”

The decision thus suggests that it is a felony conviction for the commission of a violent act, not just a felony conviction, that is needed for § 922(g)(1) to be constitutionally applied to a defendant.

Meanwhile, in the 6th Circuit, a drunken Terrence VanOchten, who incidentally was also high on marijuana, was shooting at a propane tank in his backyard, located in a residential neighborhood. Deputies who arrived to disarm him found three pipe bombs as well as his AR-15. Convicted for the pipe bombs, Terry found his sentencing guidelines raised because he was a drug user in possession of a gun in violation of 18 USC § 922(g)(3).

Last week, the 6th Circuit affirmed his sentence. Terrence argued that sticking him with the Guidelines enhancement was wrong because § 922(g)(3) was applied to him unconstitutionally. Just like the 5th Circuit, the 6th bored in not on the fact that he drank booze and smoked pot, but rather because Terry was a “dangerous individual.” Relying on the Circuit’s decision in United States v. Williams, the Circuit said,

Williams held that 18 USC § 922(g)(1), a statutory companion to  § 922(g)(3)… is constitutional as applied to ‘dangerous individuals’… [B]ased upon historical analogues, Congress may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they aren’t… And Congress had in fact done so in § 922(g)(1), disarming felons as a group because it judged them to be dangerous. Thus, we concluded, § 922(g)(1) is constitutional as it applies to ‘dangerous individuals.’

This case falls on the easy side of the line,” the 6th ruled. “In assessing whether VanOchten is dangerous, we need only examine his criminal record… [H]e earned a state law conviction for his conduct on the day he was arrested by Michigan deputies. On that day, he was shooting a rifle in the direction of a propane tank in a residential neighborhood while drunk and high. As this event shows, he misused his gun in a way that could “have caused a major explosion,” injuring himself or harming the person or property of another. His misconduct posed ‘a significant threat of danger’ to himself and others.

United States v. Morgan, Case No 24-30561, 2025 U.S.App. LEXIS 19872 (5th Cir. Aug 6, 2025)

United States v. Vanochten, Case No 23-1901, 2025 U.S.App. LEXIS 20103 (6th Cir. Aug 8, 2025)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

~ Thomas Root

Trump Suggests Marijuana May Be Downgraded as Dangerous Drug – Update for August 14, 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.

I have been on vacation, taking a break with grandkids from posting. I am back, sunburned and tired but ready to keep reporting.

TRUMP MAY RECLASSIFY MARIJUANA

The Wall Street Journal reported last weekend that President Trump is considering reclassifying marijuana from Schedule I to Schedule III, after marijuana companies have poured millions of dollars into Trump’s political groups.

At a $1 million-a-plate fundraiser at his New Jersey golf club earlier this month, Trump told attendees that he was interested in change, the people, who declined to be named, said.  The Biden administration began a reclassification move with a promised conclusion by December 2024, but Biden left office with that uncompleted.

The issue centers on whether marijuana should be reclassified as a Schedule III drug, which wouldn’t make the drug entirely legal but would ease restrictions on it. It would also allow for tax breaks for some marijuana companies and additional medical research.

At a Monday press conference, however, Trump confirmed that his administration is “looking at” reclassifying marijuana as a less dangerous drug.

“We’re looking at reclassification, and we’ll make a determination over, I’d say, the next few weeks,” The Hill reported.

The Department of Health and Human Services recommended in 2023 that marijuana be reclassified as a Schedule III drug, one that has a “moderate to low potential for physical and psychological dependence.”

Even if marijuana is rescheduled, it would still be a controlled substance that’s subject to federal rules and regulations. Rescheduling would neither decriminalize pot nor make it legal for recreational use on the federal level.

However, it would begin the long, slow slog toward decreasing marijuana penalties and perhaps retroactively revisiting existing marijuana-based sentences.

Wall Street Journal, Trump Weighs Reclassifying Marijuana as Less Dangerous Drug (August 9, 2025)

The Hill, Trump admin may reclassify marijuana: Would that make it legal in the US? (August 12, 2025)

~ Thomas L. Root

 

 

 

 

Will First Step Task Force Make A Difference? – Update for August 1, 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.

FIRST STEP TASK FORCE FINDING ITS FOOTING

Rick Stover, Senior Deputy Assistant Director of the Federal Bureau of Prisons’ Designation and Sentence Computation Center (DSCC), says that the BOP’s new First Step Act task force has begun evaluating prisoners now in halfway houses who could be transferred to home confinement if they were to receive the full benefit of “stacking” recommended Second Chance Act placement atop FSA time credits.

Writing in Forbes, Walter Pavlo said the task force – with over 30 DSCC analysts assigned – noted that while the SCA limits home confinement to the final 6 months (or 10%) of a sentence, “the end of the sentence is a moving target for some inmates because they continue to earn FSA credits each month even when they are at the halfway house. The Task Force is manually calculating these dates for inmates in halfway houses, because the BOP’s own computer program currently does not calculate these dates once inmates are released [to] halfway houses.” Mr. Stover said the task force is ensuring that such calculations will occur with the recent application updates.

Once that is done, Mr. Stover told Mr. Pavlo, the Task Force will focus on those currently in prison. Mr. Stover said, “As we… move inmates from the halfway houses to home confinement, we expect this to create a sizable number of open beds in many of our halfway houses across the country. This allows us to then revisit the placement dates for inmates currently in our institutions and increase the number of inmates that we can place in the community, and in many instances, allow inmates to get out of prison quicker to begin their transition to go home.”

Mr. Stover is optimistic, Mr. Pavlo reports. “While the Bureau has made marked improvements in our time credit calculation applications since the onset of the FSA statute, more improvements are needed. We have changes forthcoming that will simplify the data for both staff and inmates.”

The BOP effort to push prisoners out to halfway house and home confinement as early as possible is laudable, especially because some prison consultants think that the BOP has discretion to deny inmates their entitlement to FSA credits. I reported a month ago on the U.S. District Court for the District of Columbia’s dismissal of Crowe v. BOP. Former BOP Unit Management Section Chief Susan Giddings (now a private prison consultant), writing for herself and prison consultant Bruce Cameron last week, lauded the dismissal. She said that the Crowe court’s denial of class status

was particularly gratifying for the authors because they have consistently argued that 1) there is nothing in the FSA that eliminated or modified the Bureau’s designation authority, including halfway house and home confinement designations, and 2) the idea that the FSA required the Bureau to transfer an individual solely based their eligibility date regardless of any other compelling issues undermined the requirements of the Second Chance Act (SCA). The SCA required the Bureau to ensure that incarcerated individuals were provided with the same individualized consideration when making prerelease designation decisions as they were when making institution designation decisions. The decision-making process for prerelease placement (i.e., halfway house and home confinement) includes the inmate’s unit team making a prerelease placement recommendation based on a variety of factors, including but not limited to individual release needs, institutional conduct, the current offense, history of success or failure in prior community placement, and criminal history. The completed designation request is then sent to residential reentry staff, who then consider all the information provided by the institution, as well as the community program resources and any community safety issues when making the designation decision.

I disagree with Dr. Giddings and Mr. Cameron that Crowe went as far as they argues it does and that the decision is a good thing. Walt Pavlo may agree with me. He implicitly suggests that keeping inmates in BOP prisons when they are legally eligible for less restrictive incarceration may be due to a BOP mindset as much as anything. Earlier this week, Mr. Pavlo described the problem as being that

the BOP has lacked leadership to lead it into the modern era of incarceration. It is an Agency that prospered during the days of locking up drug offenders that saw the federal prison population top over 220,000 in 2013. Then as buildings became old and decrepit, it failed to keep up and now BOP employees sit in the same rotting, molded facilities that house the inmates they watch.

Dr. Giddings and Mr. Cameron seem confident that BOP decisionmakers will do the right thing by the inmates they oversee, and that they both need and will responsibly use the authority to withhold FSA placement based on SCA factors that they argue that the law provides. Their view is shared by a number of commentators and many US Attorneys’ offices, and is worth noting.

At the same time, Mr. Pavlo’s blunt suggestion that Bureau employees are locked in old thinking is a notion shared by its own cohort of observers.  New BOP Director Marshall so far has made some promising moves, including the Task Force. Now, the Task Force has to perform.

Forbes, Bureau of Prisons Task Force Taking Shape, Challenges Remain (July  23, 2025)

Giddings, Crowe, et al. v Federal Bureau of Prisons, et al: Common Sense for the Win! (July 25, 2025)

LISA, Class Action FSA Credit Lawsuit Against the BOP Case Dismissed (June 16, 2025)

Forbes, Bureau Of Prisons Could Fix First Step Act, If It Had The Will (July 29, 2025)

~ Thomas L. Root

He’s A Ramblin’ Man – Update for July 31, 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.

POT MAKES YOU TALK TOO MUCH

Aldo Cordova Perez led police on a merry chase when they tried a buy-bust on his drug dealing. After Aldo’s escapade was cut short by a concrete post impaling the front of his getaway car, police cuffed him… and he started to ramble.

Aldo congratulated the gendarmes on the car chase. He admired their physicality in tackling him. He told them he smoked marijuana daily, and that he had a .22 rifle on a shelf at home.

Oh, Aldo. You should know that remaining silent isn’t just a right, it’s a pretty good idea. Aldo’s freely volunteered information about his gun at home tipped the locals that they should call the Feds. The Feds ran with Aldo said, and they charged him with being an illegal drug user in possession of a gun, a violation of 18 USC § 922(g)(3).

Amazingly, the jury acquitted him on drug trafficking – the “large quantity of methamphetamine in a box on the front-passenger-seat floorboard” did not impress the jurors – but they convicted Aldo of the § 922(g)(3) offense.

Aldo appealed, arguing that § 922(g)(3) violated the 2nd Amendment as applied to the facts of his case. Last week, the 8th Circuit agreed.

Citing its decision in United States v. Cooper, the Circuit said, “[W]e have already held that without more, neither drug use generally nor marijuana use specifically automatically extinguishes an individual’s 2nd Amendment right… And the government here did not provide enough evidence to show that marijuana use alone could reasonably be seen to make any user ‘an unacceptable risk of dangerousness’ to others by merely possessing a firearm. Indeed, defining a class of drug users simply by the suggestion that they might sometimes be dangerous, without more, is insufficient for categorical disarmament…

The 8th remanded the case for the trial court to determine “either individually or categorically, and either on the trial record or, to the extent necessary, via an evidentiary hearing—whether Cordova Perez’s marijuana use: 1) caused him to ‘act like someone who is both mentally ill and dangerous’; or 2) would or did make him ‘induce terror, or pose a credible threat to the physical safety of others with a firearm.’” The Circuit said, “We believe the district court is best positioned to reassess Cordova Perez’s as-applied challenge in light of Cooper.”

United States v. Perez, Case No 24-1553, 2025 USAppLEXIS 18095 (8th Cir. July 22, 2025)

United States v. Cooper, 127 F.4th 1092 (8th Cir. 2025)

~ Thomas L. Root