LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.

Edited by Thomas L Root, MA JD

Vol 12, No 17

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Disparities are Gross But Not Always Remediable

Pavlo Calls BOP Admin Remedy System a ‘Failure’

Loper Bright to the Rescue on FSA Rules?

Can the Guillotine be Far Behind?

Prime Time at SCOTUS

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DISPARITIES ARE GROSS BUT NOT ALWAYS REMEDIABLE

Back about 25 years ago, Joseph Lister robbed a bank. And then another one. And another one. And so on. The money was good, but the process was a little too much for the authorities: they caught up with him, and by the time it was over, he was convicted to two counts of armed bank robbery, two 18 USC 924(c) counts, and an Armed Career Criminal Act (18 USC 924(e)) count.

Joe was sentenced to 535 months. A lot of that resulted from the second 924(c) conviction carrying a mandatory minimum sentence of 25 years. After the First Step Act passed in 2018, Joe’s 924(c) mandatory minimum fell to 7 years (because he brandished a gun). In other words, Joe’s sentence likely would have been more like 320 months or so, and he’d be out now.

Joe moved for a sentence reduction under 18 USC 3582(c)(1)(A), arguing that he had extraordinary and compelling reasons for grant under USSG 1B1.13(b)(6)’s unusually long sentence” standard. He asked the court to consider the gross disparity between his 535 months and the 320 months he would have gotten as well as his “exemplary rehabilitation,” strong family-support system, and genuine remorse, emphasizing that he was a first-time offender who engaged in “aberrant behavior” and did not pose any further risk to the public after over two decades in prison.

The district court denied his motion, holding that Joe’s reasons were not extraordinary and compelling and that the 18 USC 3553(a) sentence factors weighed against his release, due primarily to the violent nature of the offense.

Last week, the 11th Circuit affirmed, holding that the district court did not abuse its discretion. Even though USSG 1B1.13(b)(6) allows courts to consider non-retroactive changes in law that create a “gross disparity,” the Circuit noted, the policy statement is discretionary – stating only that the disparity “may be considered” after giving “full consideration of the defendant’s individualized circumstances.” Unlike the other five extraordinary and compelling reasons listed in 1B1.13(b), only (b)(6) gives the district court the option of finding that unchallenged facts are not “extraordinary and compelling.”

What’s more, the 11^th held, Joe’s district court was entitled to deny relief based on the 3553(a) factors. The judge’s emphasis on the violent nature and circumstances of the robberies (including brandishing and placing guns to the victims’ heads) provided an adequate, permissible basis to deny the motion. The weight to give the 3553(a) factors and the decision to grant a sentence reduction, the Circuit ruled, “remain firmly in the court’s discretion, and the district court’s decision here did not fall outside that range.”

The decision stands for a practical rule: even where a defendant identifies a major sentencing disparity created by non-retroactive changes in the law, the district court has the authority to reject the disparity as an extraordinary and compelling reason. The other five reasons listed in 1B1.13(b) are fact-driven: for instance, if you’re going to die of a disease within a few months, that fact is extraordinary and compelling whether the court wants it to be or not. Only (b)(6) lets a court find that a gross disparity exists due to a change in the law, but refuse to find that it justifies relief as an extraordinary and compelling reason for a 3582(c)(1)(A) sentence reduction.

US v Luster, Case No 24-13731, 2026 USAppLEXIS 10494 (11th Cir. Apr 13, 2026)

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PAVLO CALLS BOP ADMIN REMEDY SYSTEM A ‘FAILURE’

Commenting on the Prison Policy Initiative’s report of a month ago on the Bureau of Prisons’ rejection rate for inmate medical filings, Walter Pavlo wrote in Forbes last week that the BOP’s inmate grievance system is a “systemic” failure.

“The most striking finding in the report is the sheer rate of rejection,” Pavlo wrote. “Between 2014 and 2024, approximately 98 pct of medical grievances filed in federal prisons were rejected. Even more troubling, less than one percent of these complaints resulted in any form of relief. The report does not mince words in describing what this means. It concludes that the federal grievance system is ‘designed to reject nearly all complaints about medical care.’ This is not a marginal failure. It is a systemic one. When nearly every complaint is denied, the system cannot reasonably be described as a functioning mechanism for accountability.”

Forbes, Bureau of Prisons’ Administrative Remedy Process Questioned (Apr 21)

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LOPER BRIGHT TO THE RESCUE ON FSA RULES?

George Benson was sentenced in December 2020. But he was not transferred to his designated BOP facility for 15 months, instead remaining in a county lockup. When George finally got to his designated prison, the BOP administered his individualized risk and needs assessment, and he started earning FSA credits.

George asked for credits for the 15 post-sentence months he spent in county, where he participated in programming or productive activities which should have earned him credit under 18 USC 3632. But because he didn’t receive his individualized assessment after he did the programming, the BOP refused to give him any credits for programs he had previously taken.

George filed a pro se habeas petition, requesting that the BOP be ordered to award him about 150 FSA credits for the time spent in county. Without conducting discovery or requiring a response from the Government, the district court dismissed his petition.

Last week, the 4^th Circuit sent the case back to the district court.  While it would be easy to read too much into the Circuit’s ruling, two holdings are significant.

First, after George’s needs assessment, the BOP calculated that he was at medium risk for recidivism under the PATTERN system. Medium-risk inmates can earn FSA credits but typically cannot use them unless they reduce their recidivism risk to low or minimum.

The government argued that since George couldn’t use any of the credits he was seeking, he had no standing to bring the habeas corpus. “Standing” is a constitutional concept: a petitioner who has nothing at stake in the suit lacks standing to bring the action, and the case is dismissed as moot.  Because recidivism levels can change with prisoners’ age and program completion (among other factors), the Circuit ruled that George had a reasonable chance of using the FSA credits in the future. What’s more, the FSA lets medium- and high-risk inmates “petition to be transferred to prerelease custody or supervised release [upon] approv[al] by the warden of the prison,” based on determinations listed in 18 USC 3624(g)(1)(D)(i)(II).

Thus, “the FSA does not squarely foreclose a prisoner’s eligibility for prerelease custody or supervised release based on a single determination that he has a ‘medium’ risk of recidivism,” the Court said. While “it limits that prisoner’s options, [] it leaves two paths to eligibility… (1) two subsequent reassessments of “low” risk; or (2) the warden’s approval of the prisoner’s petition.” These paths are enough to give George standing to bring the habeas.

The BOP argued on appeal that the statute requires “successful participation” in programs to earn FSA points, and its rule requires that “successful participation” in programming must include a prior determination by BOP staff that the programs or productive activities have been recommended “based on the inmate’s individualized risk and needs assessment.” 28 CFR 523.41(c)(2). Because George was not evaluated until he reached prison, nothing he did while in county lockup could count. The BOP argued that its rule was a reasonable interpretation of the statute and thus the court had to accept it under the well-known Chevron doctrine.

However, while George’s case was pending, the Supreme Court overruled Chevron in Loper Bright Enterprises v Raimondo. The Loper Bright opinion held that courts were to decide questions of law without deferring to what the agencies charged with carrying out the law thought it might mean. Thus, the 4^th Circuit remanded the case to the district court to decide whether “successful participation” in programming requires that the BOP evaluate the inmate first.

George has a lot of hurdles to cross back in district court, but the Circuit’s standing holding and application of Loper Bright non-deference are a significant victory for inmates.

Benson v Warden, Case No 24-6713, 2026 USAppLEXIS 11454 (4th Cir. Apr 22, 2026)

Chevron USA Inc v NRDC, 467 US 837 (1984)

Loper Bright Enterprises v Raimondo, 603 US 369 (2024)

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CAN THE GUILLOTINE BE FAR BEHIND?  

The Dept of Justice last week announced that it will bring back the use of firing squads and electric chairs for some death penalty cases, as well as “readopting” the use of lethal injections as used during the first Trump administration.

DOJ officials said that bringing back these manners of execution “are critical to deterring the most barbaric crimes, delivering justice for victims, and providing long-overdue closure to surviving loved ones.”

DOJ, Restoring and Strengthening the Federal Death Penalty (Apr 24)

The Hill, DOJ seeks to bring back firing squads, electric chairs for some death penalty cases (Apr 24)

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PRIME TIME AT SCOTUS

The Supreme Court is entering the busy season, with cases yet to be decided on compassionate release, 922(g), venue, appeal waivers, and suits for prison violation of the Religious Land Use and Institutionalized Persons Act still to go.

Add to that a grant of certiorari last week to examine to what degree guideline commentary should be applied when sentencing criminal defendants — a question that has caused confusion among the circuit courts and led to unreasonable sentence disparities. Specifically, the Court asks whether Stinson v US “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”

In Stinson, the Supreme Court held that commentary issued by the Sentencing Commission that interprets or explains a guideline is authoritative and binding on federal courts unless it violates the Constitution or a statute, or is plainly erroneous.

The Commission’s guidelines commentary advises judges on how to apply the Guidelines, providing clarification in the form of application notes, conclusions and background information. But unlike the Guidelines themselves, the commentary is not subject to congressional review.

The petitioner claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful firearm possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”

The sentencing guideline applies an enhancement where the firearm has a “large-capacity magazine,” but it does not expressly define what that means. The commentary, however, defines the term to include a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.” The petitioner argues that the commentary improperly expands the scope of the guideline, which was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

The case will not be argued until the fall and decided early in 2027.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that the issue transcends gun possession enhancements: “I will likely need a series of future posts (and likely also some Substack essays) to fully explain the backstory and possible impacts of this case for federal sentencing law and also perhaps administrative law. For now, I will… wonder[] aloud if the Justices’ ongoing work on the still-pending federal compassionate release cases might have gotten them ever more focused on the law-making activities of the US Sentencing Commission.”

Beaird v US, Case No 25-5343 (certiorari granted Apr 20)

Stinson v US, 508 US 36 (1993)

Sentencing Law and Policy, Supreme Court grants cert on long-simmering issue of whether federal sentencing guideline commentary should still garner deference from courts (Apr 20)

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