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Enticing But Evanescent BOP Cheese – Update for June 20, 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 DANGLES THE FIRST STEP CHEESE AGAIN

So, let’s see… the Federal Bureau of Prisons first proposed that a prisoner would have to spend eight hours in one of its program classrooms in order to earn one day of First Step Act time credit (FTC) to reduce her sentence or get an extra day of halfway house. Then it reversed course, holding that an inmate would receive one day of FTC credit for every day she was enrolled in the course.

Then the BOP said that when a prisoner’s FTC credits equaled the number of days left his sentence, he would be sent to a halfway house. But wait, that was only when the halfway house finally said he could come, however long that delay might be.

The BOP said that a prisoner was entitled to as much halfway house or home confinement time as she could earn in FTCs, and on top of that, she could get up to a full year in halfway house under the Second Chance Act. But then the agency said that no one could get more than 60 days in halfway house under the SCA, no matter what the law said. But then, the BOP said that was wrong, and prisoners could get a full year under the SCA. After that, the BOP decided that any prisoner with a full year’s worth of FTCs was ineligible to get any SCA time in a halfway house.

Got it?

Not yet, because in its latest policy reversal/about face/ tweak, the BOP this week decided that its last pronouncement was “inoperative,” as Nixon White House spokesman Ron Ziegler famously said. Now, BOP Director William K. Marshall III has announced “the dawn of a new era,” a restoration of “integrity and fiscal responsibility to the federal prison system.” This of course is a tacit admission that integrity and fiscal responsibility have been wanting at the BOP, akin to the emperor acknowledging that yes, indeed, he is naked as a jaybird.

Marshall said in a press release that henceforth

• FTCs and SCA eligibility will be treated as cumulative and stackable, “allowing qualified individuals to serve meaningful portions of their sentences in home confinement when appropriate.”

• The BOP’s Conditional Placement Dates — “based on projected credit accrual and statutory timelines — will drive timely referrals, not bureaucratic inertia.”

• Stable housing and “community reintegration readiness, not past employment,” will guide placement decisions.

• Halfway house bed capacity will not be a barrier to home confinement placement when a prisoner is statutorily eligible and “appropriate for such placement.”

The press release quotes Marshall as saying the new policies “mark[] a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

The latest policy flip-flop comes on the heels of Marshall’s appointment, the week before, that BOP veteran Richard Stover has been appointed “to serve in furthering the implementation of the First Step Act.”

That announcement did not specify Stover’s title, place in the chain of command, or precise duties. Nevertheless, in the six plus years since passage of First Step, the BOP has not designated any management-level employee as being responsible for BOP compliance with the law. Marshall said that appointment of Stover to oversee First Step implementation and Josh Smith as Deputy Director “reflect a critical investment in strengthening our leadership infrastructure to better support staff, improve operations, and fully implement the First Step Act—the cornerstone of our path to safer facilities and stronger outcomes.”

Stover has 28 years with the Bureau, starting as a case manager, rising to Warden and ultimately serving as a Senior Deputy Assistant Director. Most recently, Stover ran the Designation and Sentence Computation Center in Grand Prairie. Marshall said in his announcement of the appointment that Stover’s “work developing the First Step Act Time Credits policy and his leadership at institutions like FCI Danbury demonstrate his deep expertise in executing complex reforms with clarity and precision.”

All of this is great stuff, but like Charlie Brown with Lucy holding the football, we’ve been here before. It has always been baffling to me that the BOP, chronically broke and understaffed, wasn’t hustling people with accumulated FTCs into inexpensive home confinement as quickly as possible under 18 USC 3624(g)(2). Under the SCA, the BOP can only place a prisoner in home confinement for 10% of an inmate’s sentence (up to six months maximum). But 100% of a prisoner’s FTCs can be used for home confinement.

Skeptics (and heaven knows I am one) note that even the press release contains just enough wiggle room to let the BOP take away everything it has given. Home confinement will be allowed for “qualified individuals,” but who is “qualified” and under what criteria (and decided by whom) is opaque. After all, prisoners must be “appropriate for such placement,” whatever that means.

For that matter, promising that statutory eligibility “will drive timely referrals, not bureaucratic inertia,” has a chicken-in-every-pot flavor to it. Just like no one asked where all those chickens were going to come from, the idea that people are going to go to halfway houses that won’t accept them has a delusional quality to it that matches its lofty blandishment.

Walter Pavlo, writing in Forbes, observes:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

Challenge, indeed. My take on it is a little less diplomatic: The cheese has been dangled in front of the inmate mice again. Let’s see how soon it is moved this time.

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

Forbes, Bureau of Prisons Retracts Rule, Truly Expands Halfway Houses (June 17, 2025)

BOP, Message from the Director (June 5, 2025)

– Thomas L. Root

Captain Obvious at the Supreme Court – Update for June 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.

NOTICE OF APPEAL – NICE, BUT YOU DON’T HAVE TO FILE IT TWICE

The Supreme Court a week ago reinstated a suit filed by a federal inmate that alleged that he was wrongfully kept in the USP Hazleton Special Housing Unit (a 23-hour-a-day lockdown that is often solitary confinement) for nearly two years.

In an 8-1 decision, the Court ruled that when Donte Parrish missed his deadline to file a notice of appeal after the district court threw out his case, he didn’t need to file a second notice of appeal after the trial court reopened it.

It should have been obvious. Alas, it took eight Supreme Court justices to say it. Yet, as Slate put it, “In this country, law does not always extinguish a claim with force. Sometimes it does so with paperwork.”

In 2009, Donte was placed in the SHU for 23 months after being found guilty of a -100 series incident report. After an appeal, prison officials expunged the shot, conceding that he hadn’t committed the infraction. Danny then sued seeking money damages for wrongful confinement in the SHU all those months.

The district court entered an order dismissing the case on March 23, 2020. The very next day (well before he would have gotten a copy of the dismissal order in the mail), Donte got shipped. The dismissal order didn’t catch up to him for 90 days, by which time he was well past the 60-day period for filing a notice of appeal provided for by Rule 4(a)(1)(B)(ii) of the Federal Rules of Appellate Procedure.

On July 8, Donte sent a letter to the district court explaining the delay and attaching a notice of appeal. The district court interpreted his letter as a motion to reopen the time to file an appeal and granted it.

However, after the reopening of the time to file, Donte – who thought his prior notice of appeal was all that was required to perfect his right to go to the 4th Circuit – did not file a new notice of appeal. The Circuit ruled that when the district court reopened the time to appeal, Donte should have filed another notice that he intended to appeal. Because he did not, the Circuit ruled, it lacked jurisdiction to review his case.

Last Thursday, the Supreme Court reversed. Writing for the Court, Justice Sonia Sotomayor said the text of the statute governing appeals “makes clear” that if a litigant files a notice of appeal after the reopened period has closed, it is late. But the law does not prevent an appeals court from hearing a case where – as here – the notice of appeal is filed early.

That’s what Donte really did, Justice Sotomayor reasoned. He filed a notice of appeal late – after the first period to do so had closed – but when the district court reopened the filing period (which it may do under 28 USC § 2107 and Fed.R.App.P. 4(a)(5)), what had been filed late could do double duty as a notice of appeal that was filed early.

Justice Sotomayor wrote:

This Court has long emphasized that “‘the purpose of pleading is to facilitate a proper decision on the merits.’” Accordingly, “imperfections  in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.

Even the government conceded that “it was perfectly clear after Dan’s first notice that he intended to appeal his case’s dismissal. Sending another notice would amount to nothing more than ‘empty paper shuffling.’”

Captain Obvious, striking down needless elevation of form over substance.

Donte’s lawyer said that the ruling is important for “incarcerated pro se litigants facing mail delays and other obstacles in attempting to litigate their cases from behind bars. Thanks to the Court’s decision, those litigants won’t be penalized for filing a notice of appeal before the appeal period is reopened.”

Parrish v. United States, Case No. 24-275, 2025 U.S. LEXIS 2280, 2025 LX 193678 (June 12, 2025)

Slate, A Criminal Defendant’s Case So Messed Up It United Clarence Thomas and KBJ (June 16)

– Thomas L. Root

Collateral Attack Amendments: That Which You Would Do, Do Quickly – Update for June 17, 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.

2254/2255 AMENDMENT IS TOO LITTLE, TOO LATE

Danny Rivers was convicted in Texas state court of continuous sexual abuse of a child. After unsuccessfully seeking direct appeal and state habeas relief, Danny filed his first federal habeas corpus petition under 28 USC § 2254 (which permits the filing of a post-conviction habeas corpus motion in federal court by state prisoners who contend their convictions or sentences are unconstitutional).

The § 2254 petition is essentially a 28 USC § 2255 petition for state prisoners, but the rules governing it are close to the same for § 2255 petitions. Hence our interest…

The District Court denied Danny’s § 2254 petition in September 2018, sending him to the 5th Circuit. There, Dan got a certificate of appealability authorizing him to pursue his claim that his trial lawyer had been constitutionally ineffective in representing him.

While his appeal was pending, Danny obtained his trial counsel’s client file, which contained an exculpatory state investigator’s report he had never seen. After the 5th Circuit denied his request to add the report to the appeal record, Dan filed a second § 2254 petition in the District Court based on newly discovered evidence.

Ever since Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, a prisoner’s right to file a second § 2254 or § 2255 has been severle limited. A so-called second-or-successive petition is permitted by 28 USC § 2244 only where there has been a change in constitutional law announced by the Supreme Court or new evidence that the prisoner could not have discovered before, and either event necessarily meant that no jury would have convicted the defendant because of the change in the law or exculpatory facts.

The District Court classified Dan’s second § 2254 motion as a second-or-successive habeas application under 28 USC § 2244(b) and transferred it to the 5th Circuit for authorization to file. Dan appealed, but the 5th held that the fact that his first petition was still on appeal did not permit him to end-run § 2244’s limitations on the filing of second-or-successive petitions.

Time was that we all thought you could amend a pending § 2254 or § 2255 petition even while the appeal was pending. No more, SCOTUS said last Thursday.

Writing for a unanimous court, Justice Ketanji Brown Jackson said, “Incarcerated individuals who seek to challenge their imprisonment through a federal habeas petition are generally afforded one opportunity to do so… Before a federal court can address a petitioner’s second or successive federal habeas filing on the merits, the incarcerated filer must clear strict procedural hurdles that the Antiterrorism and Effective Death Penalty Act of 1996 erects… We hold that, in general, once the district court has entered its judgment with respect to the first habeas petition, a second-in-time application qualifies as “second or successive”… triggering the requirements of 2244(b), when an earlier filed petition has been decided on the merits and a judgment exists.”

Rivers v. Guerrero, Case No. 23-1345, 2025 U.S. LEXIS 2276, 2025 LX 193063 (June 12, 2025)

– Thomas L. Root

Class Action FSA Credit Lawsuit Against the BOP Case Dismissed – Update for June 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.

DC COURT DISMISSES CHALLENGE TO BOP FSA CREDIT HALFWAY HOUSE PLACEMENT

You may recall that last December, the Criminal Law Reform Project, ACLU and mega law firm Jenner & Block sued the Bureau of Prisons for denying prisoners placement in halfway house or home confinement for the full term earned by their FSA time credits (FTCs).

Last week, the case died an ignominious death.

The case sought to certify a class action – the class being defined as anyone who now or in the future would be eligible to use FTCs for prerelease custody – to win a judicial holding that BOP rules sending a prisoner to halfway house only when the halfway house said it had space available violated 18 USC §§ 3624(g)(1) and (2). That statute says that when a prisoner has earned FTCs “in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment… [he or she] shall be placed in prerelease custody.” (Emphasis is mine).

BOP rules and policies, however, let the agency delay placement until space is available at a preferred halfway house, no matter how long that might be.

The suit argued that the BOP’s rules and policies violated 5 USC § 706(1) (contending that the BOP’s application of FTCs is “unlawfully held or unreasonably delayed”) and § 706(2) (the BOP’s rule on application of FTCs is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). In its ruling, the U.S. District Court for the District of Columbia held that the plaintiffs could not justify establishing a class for litigating the 706(1) claim, because whether placing an FTC inmate in halfway house was “unreasonably delayed” past the eligibility date depended on the length of the delay and reasons for it, both questions that were individual to the inmate in question.

The District Judge held that a class action had been justified on the § 706(2) “arbitrary, capricious, an abuse of discretion” question, but the Court nonetheless granted the BOP’s motion to dismiss the count. The prisoners’ suit argued that § 3624(g)’s language that eligible prisoners “shall be placed in prerelease custody” means that the BOP must place them in halfway house as soon as they are eligible. But the Court disagreed. It held that the prisoners’

“shall-means-shall” argument overlooks that § 3632(d)(4)(C) does not specify when a prisoner must be transferred to prerelease custody. Instead, it provides that the BOP “shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Section 3624(g), in turn, establishes the criteria for eligibility. Neither § 3632(d)(4)(C) nor § 3624(g) says that the BOP must transfer a prisoner immediately upon achieving eligibility. Section 3632(d)(4)(C) is best read as a directive that identifies what group of prisoners the BOP must transfer into prerelease custody, not as establishing an immutable date by which the BOP must effectuate individual transfers.

The Court acknowledged that “some district courts have held in the habeas context that the FSA requires the BOP to transfer an individual prisoner to prerelease custody once they become eligible… None of these cases, however, presented the argument made here by Plaintiffs, which is that the FSA compels the BOP to transfer every prisoner on the date of eligibility.”

The 48-page decision is detailed and fairly well reasoned. While not slamming the door on lawsuits to force BOP compliance with timely placement of FTC prisoners, Judge Amit Mehta’s ruling highlights the procedural and substantive obstacles to doing so. As such, it should be required reading for those seeking to force the Bureau to send them to prerelease custody on their FTC eligibility date.

Crowe v. Federal Bureau of Prisons, Case. No 24-cv-3582, 2025 U.S. Dist. LEXIS 109052 (D.D.C., June 9, 2025)

– Thomas L. Root

Federal Judge Blocks New BOP Transgender Policy – Update for June 13, 2025

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

JUDGE BLOCKS BOP TRANSGENDER ORDER FOR NOW

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

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

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

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

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

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

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

– Thomas L. Root

“Factual Predicate” is For Another Day – Update for June 12, 2025

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

SCOTUS LETS 2244 “FACTS VERSUS CLAIMS” CIRCUIT SPLIT FESTER

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

‘A Uniform Change Away’ – Former BOP Inmate Now BOP Deputy – Update for June 10, 2025

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

FORMER BOP INMATE NOW BOP DEPUTY DIRECTOR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Supreme Court to Review Two More Compassionate Release Cases – Update for June 9, 2025

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

COMPASSIONATE RELEASE ON DECK AT SUPREME COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Streamlining How To Get The Horse to Water – Update for June 5, 2025

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

BILL INTRODUCED TO SPEED BOP CORRECTIONAL OFFICER HIRING

job210830Representatives Glenn Grothman (R-WI) and Elise Stefanik (R-NY) last month reintroduced the BOP Direct-Hire Authority Act (H.R. 3342), legislation intended to alleviate BOP staffing shortages by circumventing Office of Personnel Management procedures that can prolong the onboarding process for new hires to over six months.

Stefanik is chair of the House Republican Leadership Committee.

“One of the main hurdles in President Trump’s effort to reopen Alcatraz will be the ability to quickly hire Correctional Officers,” Grothman said in a press release. “That is why Congress needs to quickly pass this legislation to help the federal prison system which has been understaffed and overwhelmed for years.”

A prior version of the bill was introduced last December as H.R. 6628 but died when the 118th Congress expired at the end of 2024.

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

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

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

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

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

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

– Thomas L. Root

The Wild, Wild West Wing – Update for June 3, 2025

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

TRUMP MANAGES TO MAKE CLEMENCY EVEN CRAZIER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root