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The BOP – Fearlessly Meeting the Demands of This Moment – Update for March 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.

LOOK AT ME, I’M WONDERFUL

I reported last Friday on a federal court approval of a settlement between the Federal Bureau of Prisons and about 500 female prisoners formerly housed at the now-closed FCI Dublin.

I note that one curious requirement of the decree is that the BOP to “issue a formal, public acknowledgement to victims of staff sexual abuse at FCI Dublin.”

wonderful250310I mentioned that the “acknowledgement” came on February 26 in a post by William Lothrop, who will be one of the shortest-tenured acting BOP directors in history( he retires in three weeks). Bill, like me, is apparently a late 60s  fan of the Bonzo Dog  Band, which gave us some timely classics as “I’m the Urban Spaceman.” This much is suggested by his channeling the band’s sleeper from its Keysham album entitled “Look at Me, I’m Wonderful.“

If you didn’t know the history, you’d think Lothrop was taking the agency on a victory lap. He emoted on his own 33 years having “worked tirelessly with our correctional professionals to rehabilitate and prepare all inmates for successful reentry into our communities.”  Hard to tell that he was supposed to be apologizing to all of those women who were sexually assaulted by BOP employees while other BOP employees hid their heads in the sand.

After Lothrop “acknowledge[d] those women who were verified victims of sexual abuse while they were designated at FCI Dublin,” he proudly strutted that “there is absolutely no place for sexual abuse in this agency, and therefore, our agency maintains and reaffirms its zero-tolerance policy for employee sexual misconduct and retaliation. I have full faith that the FBOP and our team of dedicated correctional professionals will continue to meet the demands of this moment.”

The non-apology would be ennui-inducing enough if the BOP had stamped out sexual abuse as a result of the Dublin debacle. However, last week, we were reminded that the BOP is doing anything but meeting the demands of this moment or any other.

femalesexprisoner241219A former BOP corrections officer assigned to a female unit at FDC Chicago was charged in federal court with sexually assaulting four female inmates in late 2023. The same week, out at USP Thomson, a CO was indicted for allegedly having sex with two inmates between December 2023 and March 2024.

What did these people not get? Their fellow BOP officers and managers in Dublin were getting perp-walked on Bay Area television for sexually abusing inmates. You’d think that would suggest that sex with inmates was a bad idea.

And while it’s not sex, down in Florida, a former FCC Coleman has been indicted in MD Florida federal court for smuggling contraband tobacco into the prison last June in exchange for payment.

On a related note, at the end of January, the Dept of Justice shut down its National Law Enforcement Accountability Database (NLEAD), a national directory former President Biden created in 2022 to track police misconduct. Last week, The Appeal reported that over half of the 5,200 lost database entries, more than 2,600, related to complaints against BOP officers. Customs and Border Patrol was in second place with 1,169 records, or about 22% of the database.

Look at you, Mr. Lothrop. Look at you, BOP. You’re wonderful. Shooby-dooby-wah.

BOP, Update Regarding Former FCI Dublin Inmates (February 26, 2025)

WTTW-TV, Ex-Correctional Officer Accused of Sexually Abusing Inmates in Chicago’s Federal Prison (March 6, 2025)

WIFR-TV, Thomson prison correctional officer accused of having sex with inmates (February 5, 2025)

Florida Politics.com, Ocala prison guard faces 15-plus years on contraband tobacco rap (March 4, 2025)

The Appeal, Trump’s Deleted Police Misconduct Database Was Full of Prison and Border Incidents (February 27, 2025)

– Thomas L. Root

Feds Denied a Mulligan on FCI Dublin Settlement – Update for March 7, 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 BITE OF THE APPLE,’ FCI DUBLIN JUDGE TELLS BOP

mulligan190430A federal judge last week approved a settlement between the Federal Bureau of Prisons and about 500 female prisoners formerly housed at the now-closed FCI Dublin, slapping down an 11th-hour try by the Bureau to renegotiate the deal to align with Trump Administration “priorities.”

The San Jose Mercury News reported that U.S. District Judge Yvonne Gonzalez Rogers approved a consent decree that will for two years force the BOP to institute widespread reforms for members of the class-action lawsuit, who are now held in other facilities across the country.

The decree, to be overseen by a court-appointed monitor, includes pathways to early release and home confinement and requires the BOP to “issue a formal, public acknowledgement to victims of staff sexual abuse at FCI Dublin.”

The “acknowledgement” came on February 26th. William Lothrop, the very temporary Acting BOP Director, issued a document called an “Update” that read more like a self-pat on the back than a mea culpa. After bragging about his own “33 years of dedicated service with the FBOP” and his having “worked tirelessly with our correctional professionals to rehabilitate and prepare all inmates for successful reentry into our communities,” Lothrop blamed the Dublin Rape Club on “the actions of a few employees” that had “made it abundantly clear that significant changes were needed to ensure our agency achieved its mission.”

He finally got around to the acknowledgement:

On behalf of the FBOP, I want to acknowledge those women who were verified victims of sexual abuse while they were designated at FCI Dublin. We are thankful for the tireless efforts of the United States Attorney’s Office, the Federal Bureau of Investigation, and the Office of the Inspector General for the seven criminal prosecutions and convictions bringing those perpetrators to justice, with an eighth trial scheduled in a few weeks. We can agree that there is absolutely no place for sexual abuse in this agency, and therefore, our agency maintains and reaffirms its zero-tolerance policy for employee sexual misconduct and retaliation.

I have full faith that the FBOP and our team of dedicated correctional professionals will continue to meet the demands of this moment.

welcometohell230518That’s it. No “we’re sorry that sexual criminals were rewarded with leadership positions in a women’s prison?” No “we’re sorry the warden himself was a pervert?” No “we’re sorry that BOP policy was to automatically disbelieve any report made by an inmate victim unless corroborated?” No “we’re sorry we treated you all like subhumans when we packed you on buses with an hour’s notice and called you disgusting names?”

No. Just that “we acknowledge” the “verified victims.” And how many of the victims were unverified? How many other women were not sexually abused but lived in endless fear because they knew that they were in hell. (Think that’s hyperbole? Remember this story).

Everyone involved in this horrific dark chapter in BOP history – especially “dedicated correctional professionals” with 33 years of dedicated service with the FBOP” – should be ashamed for what these women suffered at the hands of sexual brutes and for all of the BOP staff who chose to look the other way.

apple160516Fortunately, the consent decree does more than to merely coax a non-apology from the BOP. Among other things, it prohibits the BOP from denying gender-affirming clothing and accommodations to transgender class members or denying halfway house solely due to immigration status or a detainer. These provisions caused a last-minute delay as the BOP asked the court for more time to “renegotiate” them because they are “inconsistent with the new administration’s priorities.”

“You don’t get two bites at the apple,” the Judge told the BOP’s lawyer. “There is always an opportunity to want more after a negotiated settlement. And that’s why we get it in writing, and that’s why we get it signed, so that you cannot go back.”

The consent decree takes effect March 31, a delay intended to allow the BOP time to train staff on its implementation.

San Jose Mercury News, Judge grants landmark protections for inmates of East Bay’s ‘rape club’ prison (February 25, 2025)

Associated Press, Judge OKs prison abuse settlement, rejecting Trump administration’s push to rewrite protections (February 25, 2025)

BOP, Update Regarding Former FCI Dublin Inmates (February 26, 2025)

– Thomas L. Root

8th Circuit Throws Out Jail’s Publication Ban – Update for March 6, 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.

BOGUS BAN TARGETED SOME BUT NOT ALL MASS MEDIA PUBLICATIONS 

1stamend160923An Arkansas county jail refused newspapers, magazines, and personal correspondence other than postcards. The publisher of Prison Legal News sued because it could not send its newspaper, books, and promotional letters to inmates. The district court found that the jail was violating the publisher’s 1st Amendment rights, and the jail appealed.

Last week, the 8th Circuit agreed that the jail’s postcard-only policy violated PLN’s 1st Amendment rights. Weighing the four factors for judging such bans adopted by the Supreme Court in Turner v. Safley, the Circuit found that while the jail’s policy had a valid and rational connection to the jail’s interests in reducing contraband and promoting efficiency, it created a de facto ban on PLN communicating its publications to inmates.

The jail argued its ban was intended to keep out drugs – presumably soaked into the newsprint – but the jail let the local paper in, leaving the appeals court skeptical that printed publications sent to wide audiences could be manipulated easily to deliver drugs to Baxter County inmates.

1stAmendment250306The 8th ruled that accommodating PLN would have no appreciable impact on the jail. The proposed alternative of allowing publisher mailings while restricting other non-legal personal mail to postcarda was a readily available means of permitting PLN to communicate.

Considering the factors, the 8th held that “[i]n light of the restrictiveness of the Jail’s policy barring all publications in contrast to the limited impact accommodating publishers would have, we conclude the postcard-only policy was not reasonably related to its penological goals and was instead an exaggerated response constituting a blanket prohibition” on PLN’s publications. The Circuit upheld an injunction prohibiting the jail from continuing the policy.

Human Rights Defense Center v. Baxter County, Case No. 23-1888, 2025 U.S.App. LEXIS 4222 (8th Cir. February 24, 2025)

Turner v. Safley, 482 U.S. 78 (1987)

– Thomas L. Root

Musk Comes for BOP Employees – Update for March 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.

BOP EMPLOYEES TAKE IT ON THE CHIN

About 23,000 Bureau of Prisons employees will lose up to 25% of their pay starting late this month as the agency tries to reduce costs, Government Executive magazine reported last week.

hiho250304Workers learned at meetings last Tuesday that the BOP was halving — and at seven prisons ending altogether — retention pay incentives, which are designed to keep employees at understaffed facilities. The incentive added an extra 10 to 25% of base pay to each paycheck. Employees at MDC Brooklyn have been getting 35% retention pay due to the appalling conditions at that facility.

The retention bonus cuts were announced chaotically, according to Forbes magazine, “coming from both union leadership and impromptu town halls where little was shared beyond the fact that the bonuses are ending.” One union official told Forbes that “during an annual training session, the complex warden entered the room and abruptly informed them that retention bonuses were gone.”

Elon Musk’s Department of Government Efficiency has picked the BOP as one of the latest targets in its aggressive cost-cutting measures across federal agencies, according to Forbes. During the pandemic, the BOP’s hiring crisis resulted in it being granted the right to pay retention bonuses to keep some prisons operational. Now, Forbes said, DOGE has axed those bonuses, leaving employees in limbo: “Following the director’s firing, many employees are questioning whether they’ll still have a job in the coming weeks.”

Speaking of that, Federal News Network reported last week that former BOP Director Collette Peters, who was fired by the Trump administration within hours of inauguration (a dismissal that was spun as a resignation), has hired a premier federal employment attorney to bring a wrongful dismissal suit on the ground that dismissal of someone in her position required a finding of wrongdoing. In firing Peters, the Administration merely cited the “changing priorities.”

yourefired250304“In response to budget constraints, the BOP has made the difficult decision to greatly reduce, and in some cases eliminate, retention incentives across the agency,” an agency spokesman said in a statement. “This decision was not made lightly, and we recognize the financial hardship this may cause for employees who rely on those incentives.”

What this means is that the staff shortage – that already leads to inadequate healthcare, lack of programs, and frequent lockdowns – is likely to worsen.

Government Executive, 23,000 federal prison workers are set to take pay cuts up to 25% next month (February 26, 2025)

Forbes, Bureau of Prisons to Cancel Staff Retention Bonuses (February 26, 2025)

Federal News Network, Federal firings: You couldn’t make this up (February 20, 2025)

– Thomas L. Root

Supreme Court Orders Rahimi ‘Re-Do’ on 11th Circuit Felon-In-Possession Cases – Update for March 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.

GVR FOR FIP

tea160404Reading the tea leaves on Supreme Court certiorari decisions would seem to be more the province of SCOTUS geeks, but two GVRs last week have set several gun law observers to speculating that the high court may be looking for a lower court decision that narrows the cases in which the federal ban on felons possessing guns is constitutional (or tees up the issue for the Supreme Court itself).

A ‘GVR’ is a Supreme Court order that simultaneously GRANTS certiorari, VACATES the lower court judgment, and REMANDS the case to the lower court to reconsider it in light of some recent decision. Last week the Supremes GVR’d two 11th Circuit cases, United States v. Rambo and United States v. Whitaker – both challenging whether 18 USC § 922(g)(1)’s felon-in-possession ban violated the 2nd Amendment as applied to the defendants – “for further consideration in light of United States v. Rahimi.”

In Rambo and Whitaker, the 11th held that Rahimi did not abrogate its prior decision that § 922(g)(1) was constitutional as applied to any felon because Rahimi “did not discuss § 922(g)(1) at all, nor did it undermine our previous interpretation of Heller.”

mulligan190430Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “[t]his would not be a big deal, except both Whitaker and Rambo were resolved by the 11th Circuit after the Supreme Court’s Rahimi ruling; the 11th Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a 2nd Amendment challenge to the federal felon-in-possession charge. As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine — or at least should or may be read as undermining — any and all pre-Rahimi precedents that categorically foreclose a 2nd Amendment challenge to broad felon-in-possession laws.”

In the gun law newsletter The Reload, Jake Fogleman noted that “[e]very other 2nd Amendment case sent back down to date has involved a decision that predated [Rahimi]… But the case[s] the justices just sent back [were] already decided in a post-Rahimi world.

Fogleman suggested that maybe SCOTUS just wanted the 11th to explain why it thought Rahimi was irrelevant to the Rambo and Whitaker challenges. However, he conceded that another way to interpret the two GVRs is “that the Court is telegraphing its preferred application of Rahimi to the question of gun rights for convicted felons.” After all, while Rahimi addressed banning guns for those subject to domestic violence restraining orders, the high court “may nevertheless view its focus on individualized judicial findings of dangerousness and temporary disarmament as incompatible with a lower court standard that provides blanket approval of lifetime disarmament for all types of felons.”

gun160711Fogleman admitted that his “interpretations rely on tea leaf reading, a potentially perilous endeavor for an institution as opaque as the Supreme Court. Only the justices themselves know what their actions genuinely entail. However, the unusual step of vacating and remanding a decision to be reconsidered in light of an already-cited case suggests something deeper could be at play.”

We are far from a Supreme Court holding that § 922(g)(1) violates the 2nd Amendment when applied to nonviolent felons, but last week’s GVR action suggests that the high court may get to the question next year.

Order List, Supreme Court, 604 U.S. — (February 24, 2025)

United States v. Rambo, Case No. 23-13772, 2024 U.S.App. LEXIS 18375 (11th Cir., July 25, 2024)

United States v. Whitaker, Case No 24-10693, 2024 U.S.App. LEXIS 20426 (11th Cir., August 14, 2024)

Sentencing Law and Policy, Latest SCOTUS order list full of intrigue while engaging 2nd, 4th and 6th Amendment (originalist?) jurisprudence (February 4, 2025)

The Reload, Analysis: What to Make of the Supreme Court’s Latest GVR (February 28, 2025)

– Thomas L. Root

Keeping Your Eye On The Prize – Update for February 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.

4TH CIRCUIT SAYS THAT IN A § 2244 INQUIRY, LEAVE THE PREJUDICE FOR LATER

In order to be allowed to file a second-or-successive 28 USC § 2255 habeas corpus motion, a prisoner has to meet some tough “gatekeeping” standards, that newly discovered evidence would have led a jury to find him or her innocent or that the Supreme Court had adopted a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.”

threaten250228In 2008, Scott Rendelman was convicted for mailing threatening communications under 18 USC § 876. The district court instructed the jury that the government need prove only that a “reasonable person” would find Scott’s communications threatening, and the jury did so. However, 15 years later, the Supreme Court held in Counterman v. Colorado that the 1st Amendment requires the government to prove that the defendant actually had some understanding of his statements’ threatening character.

Scott, who said his many letters to government officials were just intended to show that prison does not rehabilitate people, asked the 4th Circuit for authorization to file a successive 28 USC § 2255 motion based on Counterman. The government agreed that he had satisfied the gatekeeping requirements of § 2255(h), but it argued that the court should also impose a “plausibility requirement.”

In other words, the government said, even if Counterman had been applied, Scott would have lost his jury trial. The US Attorney called on the Circuit to require Scott to show that constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict, as required for relief under § 2255.”

eyesonprize250228The 4th refused the government’s demand. “The focus of our inquiry at this stage must always remain on the § 2255(h) gatekeeping standards,” the Circuit wrote. “We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping requirements. There isn’t an additional plausibility requirement he must meet… Counterman is on point. Rendelman was prosecuted for a true-threat offense. The jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he subjectively intended to threaten another, and the government acknowledges that this omission was error… Whether that error warrants relief under § 2255 is a merits question for the district court to decide in the first instance when it considers Rendelman’s § 2255 motion.

In re Rendelman, Case No. 23-257, 2025 U.S. App. LEXIS 4087 (4th Cir. February 21, 2025)

Counterman v. Colorado, 600 U.S. 66 (2023)

– Thomas L. Root

Is It ‘Tabula Rasa’ for J6ers? – Update for February 27, 2025

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DEPT OF JUSTICE READS JANUARY 6TH PARDONS EXPANSIVELY

In further evidence that this is not your parents’ Dept of Justice, the DOJ last week began arguing in several pending cases that Trump’s clemency for January 6th rioters covers unrelated crimes that were discovered during FBI searches stemming from the attack on the Capitol.

tabularasa250227Prosecutors moved to drop felon-in-possession charges against two former January 6th defendants, 18 USC § 922(g)(1) offenses that were based on guns found at the two men’s homes during the January 6th-related searches (although the guns themselves were not connected to the riot). The government argues that the gun offenses were covered by invoking Trump’s Day 1 executive order granting mass clemency to January 6th defendants because the searches that found the guns were “conduct related to” those events.

It works like this: Mike and Millie Maga were identified as being among the peaceful tourists who wandered around the Capitol on January 6, 2021, taking in the grandeur, chasing legislators, bear-spraying the gendarmes, and smearing their patriotic feces on the walls. A year or so later, jackbooted thugs from the FBI searched their home and found out that Mike – who had a couple of prior felonies on his record – had an AR-style rifle and a couple of Trump Glocks.

So Mike is quite properly charged with being a felon in possession of a gun under 18 USC §922(g)(1). Right?

“Not so fast,” the prosecutor says. President Trump’s “full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021…” includes a crime committed a year or so later, the government seems to be saying, as long as that later crime was only discovered because a search conducted for evidence of the January 6th offense.

Confusing? It was to U.S. District Judge Dabney L. Friedrich, a Trump appointee who sits on the U.S. District Court for the District of Columbia. Yesterday, she questioned DOJ attorney Jennifer Blackwell about the government’s shifting position on the application of Trump’s January 6th pardon.

movingtarget25027The judge expressed frustration with the government’s changing position on the pardon’s scope, appearing skeptical of the DOJ’s newly developed argument that the January 6th pardon applied to the gun charges. She suggested that pardons “have a fixed meaning” on the day they are issued, a “clear definition of the pardon” that doesn’t evolve or change.

“The intent cannot evolve over time as new cases are brought to [Trump’s] attention,” Friedrich said, meaning that the president can’t change the intent he when he issued the pardon as he subsequently learns of new charges about which he was unaware when he signed the clemency.

The expansive reading of the pardon marks the latest push by the Administration to absolve January 6th defendants, whom Trump has described as political prisoners and victims of persecution.

In another case, a North Carolina defendant has pled not guilty to child pornography charges stemming from images found in the search of his residence as part of the January 6th investigation. NPR observed that in that case, “it’s unclear how broadly the Trump administration will interpret the pardons.”

Politico, Justice Department broadens Trump’s Jan 6 clemency as it moves to drop gun cases (February 22, 2025)

NPR, Justice Department broadens Jan. 6 pardons to cover gun, drug-related charges (February 20, 2025)

NBC, Federal judge grills Trump’s Justice Department over argument that Jan. 6 pardon covers a separate gun case (February 26, 2025)

– Thomas L. Root

‘We’re Outta Here!’ BOP Leadership Says – Update for February 25, 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 ACTING DIRECTOR LASTS FIVE WEEKS; OTHER TOP BRASS OPT FOR RETIREMENT

abandonship-bop250225Six of the Federal Bureau of Prisons top management – including Acting Director William W. Lothrop – have announced plans to retire in the past two weeks, the Washington Post reported last Sunday, “amid questions within the agency about its direction under President Donald Trump, according to the union representing BOP employees and internal communications…”

Two out of the BOP’s six regional directors, the general counsel, chief information officer and head of the oversight division, are also retiring between now and the end of July, according to a message Lothrop sent to BOP staff on February 14th announcing his departure at the end of February. This leaves 10 of the agency’s 21 senior management positions vacant.

shesgone250225Lothrop stepped into the director’s role on January 20th when Colette Peters left her post. At the time, the media reported she had resigned shortly before Trump was sworn in. However, last week, Walter Pavlo wrote in Forbes that Peters “was reportedly fired.” And on Sunday, the Washington Post reported that Peters’ lawyer said in a statement that she “was removed by Trump’s acting attorney general on Inauguration Day without due process. Peters is appealing the decision.”

Each of the six retiring officials has been with the agency for at least 25 years.

Pavlo wrote that the BOP is “currently experiencing significant upheaval, with a wave of leadership departures leaving the agency without clear direction during a critical time.” He quoted Lothrop as saying, “We are in unprecedented times as an Agency.”

Not that Lothrop did much in his five weeks at the helm. Pavlo complained that Lothrop’s “directives to the staff have lacked clear guidance and appear that he is simply passing on information as he received it from the Department of Justice. Whenever a new administration comes into office, agencies like the BOP are often in a reactionary position to enact changes demanded by new leadership but these changes and the pace of the changes are unprecedented.”

morale250225Trump’s offer of eight months’ severance to federal employees and the firing of probationary employees have reportedly worsened the understaffed BOP’s already bad employment situation. “It’s mass confusion, honestly,” Brandy Moore White, president of AFGE Council 33 (which represents BOP employees), told the Post. She said the top brass are in turmoil. “They are just very nervous that if they would fire a director on Day One, what protections do they have?” she said. “If they’re eligible for retirement, why wouldn’t they jump ship?”

Pam Bondi, Trump’s new attorney general, said in her confirmation hearing that fixing the BOP is one of her priorities. She told senators that the agency had “suffered from years of mismanagement, lack of funding and low morale,” and that corrections officials needed “more support.”

The morale fix appears not to be here yet.

Washington Post, At Federal Bureau of Prisons, senior retirements add to uncertainty (February 23, 2025)

Forbes, Bureau of Prisons Executives Announce Retirement Ahead of New Director (February 17, 2025)

– Thomas L. Root

‘Go Ask Alice – I Think She’ll Know’ – Update for February 24, 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 NAMES FORMER PRISONER ALICE JOHNSON ‘PARDON CZAR’

President Trump announced last Thursday that Alice Johnson, whose 1996 life sentence for a cocaine conspiracy was commuted in 2018, would serve as White House “pardon czar,” a position in which she will “advise him on criminal justice issues,” according to the NY Times.

goaskalice250224No one knows exactly what this position entails or its significance but having a White House liaison responsible for clemency issues and who has the President’s ear is unprecedented in modern times. Still, many federal prisoners are starting to think that Jefferson Airplane had it right in “White Rabbit” when it advised, “Go ask Alice – I think she’ll know.”

After Kim Kardashian talked Trump into commuting Johnson’s sentence, Johnson initially convinced Trump to grant clemency to a couple of her FCI Aliceville cellies. Later, at Trump’s request, she suggested the names of people to receive clemency at the end of his first term.

The New York Times reported that in announcing her appointment, Trump said Johnson “would be advising him on cases of people convicted of nonviolent crimes who had gotten sentences not likely be handed down today. Ms. Johnson’s case was seen as an example of draconian sentencing laws that disproportionately affected nonviolent offenders, particularly women and members of minority groups.”

Trump told reporters that “Alice was in prison for doing something that today probably wouldn’t even be prosecuted.” That’s probably not quite correct: Her indictment, which named 16 defendants, described Alice as a leader in a multi-million-dollar cocaine ring, and detailed dozens of drug transactions and deliveries. At sentencing, her judge said she was “the quintessential entrepreneur” in an operation that dealt in 2,000 to 3,000 kilos of cocaine, with a “very significant” impact on the community.

second170119Still, Johnson’s post-sentencing record was exceptional, and her work since her release seven years ago has been tireless. “Alice Johnson has been a relentless advocate for second chances, and her own story is a testament to the power of redemption,” Weldon Angelos, another Trump clemency recipient and founder of the criminal justice organization The Weldon Project, told Marijuana Moment last week.

The Times said that Johnson’s appointment illustrates how Trump’s

approach to criminal justice reform is rife with contradictions. He signed the bipartisan First Step Act, which aimed to reduce prison sentences for certain nonviolent drug crimes, during his first term, then told advisers privately soon afterward that he regretted it, according to multiple officials working with him at the time… During his 2024 campaign, he called for shooting thieves who steal from drugstores and for the death penalty for drug traffickers and dealers. Then, in one of his first acts as president in his second term, he issued a grant of clemency to all of the nearly 1,600 people charged in connection with the attack on the Capitol on Jan. 6, 2021 — violent and nonviolent alike.”

Angelos, however, is focused on the appointment rather than the President’s record on criminal justice. “The creation of a pardon czar position is a significant step in prioritizing clemency and criminal justice reform,” he said, “signaling a commitment to addressing injustices in the system and ensuring that mercy is applied more fairly and efficiently.”

MSNBC complained, “It’s not clear that this position will have real power. Ultimately, the president determines who receives pardons, so it’s possible this role will have as much actual authority as Trump’s Diet Coke retriever. But it seems pretty obvious what he’s after with this stunt. Trump has perverted the pardon process, most glaringly with his pardons of violent insurrectionists who stormed the Capitol on Jan 6. And now he has made a sympathetic figure the face of that process.”

alicesrestaurant250224Prisoners and their loved ones are wondering how Johnson’s appointment might upend the current clemency system, which has been characterized over the past decade by Byzantine review procedures while thousands of petitions gathered dust in the DOJ Office of Pardon Attorney. Must a commutation petition still begin with a filing with OPA? Will clemency petitions now be routed directly to Johnson’s White House office?

No one knows. However, a Substack blogger on healthcare already has solicited people to contact Johnson to urge that a father and his sons convicted of selling toxic industrial bleach as a fake COVID-19 cure through their online church be pardoned.

New York Times, Trump Names ‘Pardon Czar’ to Advise on Clemency (February 21, 2025)

New York Times, Trump May Name a Woman He Once Pardoned to Be His ‘Pardon Czar’ (February 18, 2025)

Marijuana Moment, Trump Confirms He’s Appointing Former Drug Prisoner He Freed As New ‘Pardon Czar’ (February 20, 2025)

MSNBC, In ongoing stunt, Trump names Alice Johnson his ‘pardon czar’ (February 21, 2025)

Robert Yoho, Surviving Healthcare (Feb 22)

– Thomas L. Root

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 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.

THE NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root