As you know, last September the BOP changed its email system to make mass emailing of this newsletter impossible.
This is a copy of the newsletter for May 12, 2025. I have reformatted it to eliminate graphics so everything printed in black will fit into a Corrlinks email (if you are providing it to an inmate).
LISA Newsletter for May 12, 2025 – 922(g) Constitutionality Gets Messier
LISA publishes a free newsletter sent to inmate subscribers in the Federal system. Due to BOP Corrlinks limitations, the newsletter must be sent in small batches throughout the week.
Edited by Thomas L Root, MA JD
Vol 11, No 19
<><>
En Banc 9th Circuit Decision Finds 922(g)(1) is Constitutional
Habeas Mabeas?
BOP Told to Do More for Less
New Pardon Attorney to Preside Over Clemency Bazaar
<><>
EN BANC 9TH CIRCUIT DECISION FINDS 922(G)(1) IS CONSTITUTIONAL
The question of whether the 18 USC 922(g)(1) felon-in-possession (F-I-P) statute is constitutional just got more complicated.
Rod Duterte got pulled over in 2019 while having a gun in his car. Because he had been convicted of five prior felonies, he was convicted of a 922(g)(1) offense. Rod challenged 922(g)(1)’s constitutionality as applied to him, and a year ago, a three-judge 9th Circuit panel ruled 2-1 that after NY State Rifle & Piston Assn v Bruen, 922(g)(1) was unconstitutional as applied to him, a nonviolent felon.
The 9th Circuit voted to rehear the case en banc. Last Friday, a year to the day after the 3-judge panel ruled in Rod’s favor, the en banc court held that the history and tradition of American gun laws meant that 922(g)(1) could disarm all felons consistent with the 2nd Amendment.
The decision aligns the 9th with four other circuits upholding the application of 922(g)(1) to all felons, the 4th, the 8th, the 10th, and 11th. Two circuits–the 5th and 6th–have rejected as-applied challenges like Rod’s but have left open the possibility that 922(g)(1) might be unconstitutional as applied to at least some felons. The 3rd Circuit has held in an en banc decision that 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. The 1st, 2nd, and 7th Circuits have thus far declined to address constitutional challenges to 922(g)(1) on the merits.
Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he Supreme Court has so far dodged this issue, which has been broadly litigated since Heller was decided back in 2008 and which has generated considerably more lower court division since Bruen and Rahimi reoriented Second Amendment jurisprudence. With this latest ruling in the largest circuit, and with the Justice Department’s new efforts to restore gun rights to more persons with criminal convictions… I suspect the Justices might see even more reasons to avoid taking up this issue in the days ahead.”
US v Duarte, Case No 22-50048, 2025 USAppLEXIS 11255 (9th Cir. May 9, 2025)
Sentencing Law and Policy, En banc Ninth Circuit broadly rejects Second Amendment challenge to federal felon-in-possession prohibition (May 10)
<><>
HABEAS MABEAS?
Last Friday, Trump deputy chief of staff Stephen Miller said the White House is “actively looking at” suspending habeas corpus as part of the administration’s immigration crackdown.
“Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller told reporters at the White House. “So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Habeas corpus dates to medieval English common law. It requires law enforcement to justify detaining people and produce those people before a judge so their cases can be reviewed. Federally, the right is exercised through 28 USC 2241 and 2255. The Constitution’s Suspension Clause allows habeas corpus to be suspended only “in cases of rebellion or invasion [when] the public Safety may require it.”
Suspending habeas corpus would mean the Trump administration could detain people believed to be noncitizens without letting them challenge that detention or to deport noncitizen prisoners without giving them access to 2241 or 2255 proceedings or to immigration courts.
Habeas corpus has been suspended only four times in American history, and each time Congress has authorized the suspension. The National Constitution Center has observed that the Constitution is vague when it comes to “who in the government can suspend the writ of habeas corpus, but it is commonly believed that only Congress can do so,” Forbes said last week. “That means it’s likely Trump would face legal challenges if he decided to suspend the writ of habeas corpus on his own without Congress… but it remains to be seen how the courts could rule.”
Boston Globe, Trump, in a new interview, says he doesn’t know if he backs due process rights (May 4)
The Hill, White House ‘actively looking’ at suspending habeas corpus in immigration crackdown (May 9)
National Constitution Center, The Suspension Clause (2025)
Forbes, Stephen Miller Suggests Trump Administration Could Suspend Habeas Corpus To Detain Immigrants—Here’s What That Means (May 9)
<><>
BOP TOLD TO DO MORE WITH LESS
The Trump administration is halting some hiring at the Bureau of Prisons despite chronic understaffing, which has led to long overtime shifts, augmentation by nurses, teachers, cooks and other workers as corrections officers, lockdowns and program loss.
New BOP Director William K. Marshall III announced the move last week. Some union officials call it a “hiring freeze,” though the agency denies that, saying some positions will continue to be filled.
Marshall wrote in an email to staff entitled “Staffing and Hiring Decisions” that the BOP will maintain current staffing levels at least through Sep 30.
Despite the BOP’s money woes, the agency last week received what the Associated Press called “a stunning directive” in a Trump tweet to “REBUILD, AND OPEN ALCATRAZ!” — the legendary federal penitentiary that still stands on an island in San Francisco 62 years after its closure.
“Even as the BOP struggles with short staffing, chronic violence and crumbling infrastructure at its current facilities,” AP reported, “Trump is counting on the agency to fulfill his vision of rebooting the infamously inescapable prison known in movies and pop culture as ‘The Rock.’”
Alcatraz, which at its peak held fewer than 300 inmates, was closed in 1963 after the BOP determined that up to $5 million was needed just for restoration and maintenance work to keep the facility open. That’s $52 million in 2025 dollars, not accounting for additional deterioration over the past 62 years or the cost of modern upgrades.
In 1962, BOP Director James Bennett said it was not an “economically sound policy” to invest millions of dollars to rehab Alcatraz, where housing an inmate there costs more than three times the average.
Trump’s idea to reopen Alcatraz reflects his personal tastes. “When we were a more serious Nation, in times past, we did not hesitate to lock up the most dangerous criminals and keep them far away from anyone they could harm,” Trump wrote on TruthSocial. “That’s the way it’s supposed to be.”
Associated Press, Cash-strapped Bureau of Prisons freezes some hiring to ‘avoid more extreme measures,’ director says (May 8)
Associated Press, The federal Bureau of Prisons has lots of problems. Reopening Alcatraz is now one of them (May 6)
The Hill, Trump’s call to reopen Alcatraz faces ‘daunting’ challenges (May 5)
<><>
NEW PARDON ATTORNEY TO PRESIDE OVER CLEMENCY BAZAAR
Trevor Milton knew how to do it. The founder of the electric-truck maker Nikola Corp., convicted of wire fraud in 2022, applied for a presidential pardon, arguing that his trial was flawed by a biased juror, lousy jury instructions, and prosecutors bringing charges in the wrong venue.
Complaining about an unfair prosecution hardly separates Trevor from thousands of other federal prisoners unhappy about their convictions. But Trevor had more: he pointed out that the prosecutors were the same people who had previously investigated some of President Trump’s allies. And before asking for the pardon, he donated almost $1.7 million to support Trump’s 2024 presidential run and hired two lawyers connected to Trump to push for his pardon.
“All the effort appeared to pay off,” Bloomberg Law reported last week. The President himself called Trevor to tell him, “It’s signed. You’re cleaner than a baby’s bottom…”
Bloomberg Law said people who can afford it are spending a lot to get their applications in front of Trump, making big donations and paying tens of thousands of dollars to fees for lawyers, lobbyists and consultants.
“Over the past four years,” White House spokesman Harrison Fields explained, “we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.”
But some critics suggest Trump is not righting wrongs as much as running a pardon bazaar. Gregg Nunziata, executive director for the Society for the Rule of Law, told Roll Call, “From the first days in office, there has been a pattern in pardons, in personnel, in the policies of using the powers of government to reward the president’s friends and allies and punish his perceived enemies.”
Trump last week withdrew the nomination of Jan 6 supporter Ed Martin as the US Attorney for the District of Columbia last week after Martin’s background and record as interim US Attorney left him short of even Republican votes on the Judiciary Committee. On May 8, Trump appointed Martin the new Dept of Justice Pardon Attorney.
The Pardon Attorney website shows over 7,400 active clemency petitions, including more than 400 pardon applications filed since Jan 20. This is an “eye popping” rate, said former Pardon Attorney Margaret Colgate Love, who now represents clemency clients. “There’s a huge level of interest… People think Trump is going to do something for them.”
Bloomberg reported that Martin’s appointment “suggests that Trump plans to make more use of the office in his second term than his first but in a way that emphasizes his control over the office’s decision-making,” Bernadette Meyler, a Stanford Law School professor and pardon expert, told Bloomberg.
Trump has set a presidential record for granting pardons – almost 1,600 – starting with the Jan 6th Capitol rioters and then expanding to include white-collar defendants, cryptocurrency entrepreneurs, and anti-abortion activists. He has even extended his pardon efforts beyond the limits of presidential authority (which does not extend to pardons for state offenses). He posted on TruthSocial last Monday night that has directed DOJ “to take all necessary action to help secure the release” of Tina Peters, a former Colorado local election clerk in Colorado who was sentenced to state prison last fall for her role in a voting system data breach, a failed attempt to find 2020 election fraud.
Last March, DOJ filed a statement of interest in Peters’ 28 USC 2254 motion pending in US District Court (D-Colorado), which seeks federal review of her state conviction. The DOJ claims allege that “[r]easonable concerns have been raised about various aspects of Ms. Peters’ case.”
All of this is not good news for the ordinary federal defendants, let alone prisoners. “It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” former Pardon Attorney Elizabeth Oyer, fired in March, told Bloomberg.
Writing in Sentencing Law and Policy, OSU law prof Doug Berman said that “it is unclear what role the Pardon Attorney will play when Prez Trump has seemed quite comfortable using his clemency pen without DOJ input (and when he also has Alice Marie Johnson serving as ‘pardon czar’). Whatever else this Pardon Attorney appointment might mean, I doubt this will lead to any decrease in the going rate some lawyers are charging for pursuing clemency these days.”
Bloomberg Law, Lawyers Are Quoting $1 Million Fees to Get Pardons to Trump (May 7)
Roll Call, Pardons for friends, retribution for foes (May 7)
Bloomberg Law, Ed Martin Takes DOJ Pardon Job as Trump Upends Clemency Process (May 9)
Democracy Docket, Trump Orders DOJ to ‘Secure the Release’ of Convicted Election Denier Tina Peters (May 6)
Sentencing Law and Policy, After withdrawal as US Attorney nomination, Prez Trump states he will have Ed Martin serve as DOJ’s Pardon Attorney (May 9)
<><>
The LISA Newsletter is copyright 2025, LISA Foundation, PO Box 636, Norwalk OH 44857.
The newsletter uses pseudonyms for any inmates named in cases we report on.
Your family may read our newsletter online (or print it to send it to you by snail mail) at www.lisa-legalinfo.com.
PLEASE SHARE THIS NEWSLETTER