LISA Newsletter for October 12, 2026 – First Week at the Supreme Court: Guns, Gender and Guidelines
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 39
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SCOTUS Gets Back to Work
BOP Says, ‘Take That, District Court!’ On Union Cancellation
Idiocy is No Defense
Recidivism Risk Doesn’t Drop Only With Age But With Time As Well
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SCOTUS GETS BACK TO WORK
This year’s Supreme Court term (known in judicial speak as “October Term 2026”) began last week with some interesting, if below-the-radar, developments.
Felon-in-Possession: Last spring, the 5th Circuit declared 18 USC 922(g)(1) – the felon-in-possession statute – unconstitutional as applied to a defendant whose only prior felony was a state simple drug possession conviction. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibited from owning guns.
The government – which usually gets its way when it wants Supreme Court review – asked SCOTUS to take up the case but hold it until it could apply its ruling in US v Hemani, last June’s holding that 18 USC 922(g)(3), which bars “habitual” drug users from having guns, violates the 2nd Amendment as applied to a man who said that he smoked marijuana a few times a week.
The Hemani decision noted that it did not address the federal law “disarming individuals convicted of felonies (often including drug-related ones.” After Hemani, Hembree urged the justices to leave the 5th Circuit’s ruling in place. “The decision in Hemani does not affect the outcome here,” he wrote, because it “says nothing about nonviolent felons being categorically and permanently disarmed.”
Last week, the Supremes agreed, denying the government review of the 5th Circuit decision. This means that the 5th Circuit joins the 3rd (US v Range) and the 6th (US v Williams, sort of) in holding that 922(g)(1) can violate the 2nd Amendment as applied to some people whose prior felonies don’t show dangerousness.
US v Hembree, 165 F4th 909 (5th Cir. 2026)
US v Hembree, Case No 25-1219 (Cert denied October 5, 2026)
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Do The Notes Count? For everyone who ever wondered whether you have to read the footnotes, the Supreme Court will reconsider the 30-year-old Stinson v US holding that courts must follow Sentencing Commission commentary that interprets or explains a guideline “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
Stinson made a lot of sense back when courts were required to follow the Guidelines and the Chevron doctrine directed courts to defer to agency interpretation of statutes. But in 2019, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in Kisor v Wilkie that courts must defer to an agency’s interpretation of its regulations only where the regulation is genuinely ambiguous on the question at issue.
In Beaird v US, the Supreme Court will consider whether Stinson still correctly captures the deference that courts must give to the guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.
The Beaird defendant claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful gun 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 exactly how large a magazine must be to ne “large capacity” is only defined in the commentary as a “magazine or similar device that could accept more than 15 rounds of ammunition.” That definition sweeps in just about any double-stack auto pistol on the market, including five of the most popular Glocks, Sigs, Smith & Wessons and HKs.
The defendant argues that the commentary, which unlike the guideline itself is not approved by Congress, improperly expands the scope of the guideline. That guideline, he contends, was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.
Beaird v US, Case No 25-5343 (argued Oct 13, 2026)
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BOP Transgender Policy: Lawyers for Bureau of Prisons transgender inmates urged the Supreme Court on Thursday to leave in place a court order that bars the BOP from enforcing a new policy on healthcare that would prevent transgender inmates from obtaining hormone therapy and “social accommodations” (such as makeup, wigs, and padding).
The BOP adopted the policy earlier this year, following President Trump’s February 2025 executive order directing the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Three transgender inmates then went to federal court in Washington DC to block the enforcement of the policy. On Aug 26, Senior US District Judge Royce Lamberth issued an order barring the BOP from implementing the policy, and on Sept 18 the DC Circuit refused to reverse the order. On Sept 28, BOP went to the Supreme Court to ask that the order be blocked, complaining that the district court had “substitut[ed] its own policy judgment” for the BOP, “rel[ied] on evidence outside the administrative record… fault[ed] the agency for following presidential directions… [and] denied prison administrators the substantial deference they are due.”
The issue of the temporary order, on the SCOTUS “emergency” docket, will probably be decided next week. Ultimately, a decision on the merits of the underlying case – which will be heard in district court and the court of appeals before it ever gets to the Supreme Court – could not just affect transgender inmates but define how much deference courts have to give “prison administrators.”
Trump v Kingdom, Case No 26A-416 (application for stay filed Sept 28, 2026)
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BOP SAYS, ‘TAKE THAT, DISTRICT COURT!’ ON UNION CANCELLATION
Two weeks ago, US District Judge Vernon D. Oliver (D Conn) ordered the BOP to immediately restore union protection for more than 30,000 employees who lost it after the BOP unilaterally ended the Council of Prison Locals 33’s collective bargaining agreement a year ago.
Last Tuesday, the union asked Judge Oliver to hold the BOP and Director William K. Marshall III in contempt for not complying with the preliminary injunction. The next day, Marshall rescinded the AFGE contract cancellation notice but immediately issued a new notice that the contract had been re-terminated for different reasons and then said the agency no longer needs to honor the injunction.
“The court’s order was based solely on the conclusion that bureau leadership had issued inconsistent rationales for terminating the CBA; that order does not preclude the bureau from issuing a new termination decision after reconsidering the basis for that action,” Marshall’s Oct 7 memorandum to the union states. “Neither the court nor the union has indicated any disagreement regarding the agency’s ability to re-terminate the CBA in a new decision.”
The union is not happy. “It’s absurd and shameful that this administration would stoop so low as to flout the rule of law inside our own federal prisons just to silence the voices of the brave correctional officers who work every day in some of the most challenging environments in the country,” AFGE National President Everett Kelley said in a statement.
Federal News Network, BOP re-terminates union contract, days after being ordered to restore it (October 7, 2026)
AFGE News, AFGE Blasts Shameful Move by Bureau of Prisons to Terminate Worker Contract Despite Court Order Mandating Reinstatement (October 8, 2026)
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IDIOCY IS NO DEFENSE
I had a local police detective friend once who swore that ‘FBI’ stood for ‘freaking bunch of idiots.’ (Well, not ‘freaking’ but you can fill that in).
The ‘idiot’ part was on display in an 11th Circuit decision last week that held that while the federal government is largely immune from a Georgia family’s lawsuit over a misdirected FBI raid at their home, the agent who led the raid was incompetent and may have violated their constitutional rights.
FBI Agent Lawrence Guerra and a SWAT team on a predawn drug raid smashed through the Martins’ front door nine years ago, detonating a flash-bang grenade, holding them at gunpoint, and tossing the place… until another officer stumbled across some mail with the home’s address on it and realized the team had the wrong house.
Last week, the 11th reversed the qualified immunity granted to Guerra, noting the geographical and physical differences between the Martin family’s residence and the one listed in the FBI’s search warrant were so stark that the agent’s “conduct in verifying the address to be raided was simply not consistent with a reasonable effort to ascertain and identify the place intended to be searched.”
The two homes were three houses away from one another, on opposite sides of the road and separated by a cross street. Plus, street signs clearly marked the intersection as not being the street where the target home was located.
“[A] reasonable jury could fairly conclude that Agent Guerra failed to engage in reasonable efforts to avoid error, and, therefore, violated the plaintiffs’ constitutional rights,” the Court wrote. “Such plain incompetence has clearly violated the 4th Amendment since at least 1995 when we decided this materially similar precedent.”
The decision was a mixed bag. The Circuit upheld the district court’s holding that the government was immune because a drug raid is a ‘discretionary function’ exception to the Federal Tort Claims Act. But the Court’s decision is noteworthy in that it recognized that some negligence – picking the wrong house with the wrong address on the wrong street – is too extreme to permit a grant of qualified immunity to the agent who was in charge of the raid.
Martin v US, Case No 23-10062, 2026 USAppLEXIS 30717 (11th Cir. Oct 7, 2026)
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RECIDIVISM RISK DOESN’T DROP ONLY WITH AGE BUT WITH TIME AS WELL
A study published in Criminology several weeks ago found that your likelihood of recidivism doesn’t just drop with age, but also declines predictably the longer you go without committing a new offense. After 9-10 years, your likelihood of committing a new crime is the same as the public in general.
The authors note that criminal history is often treated as a static indicator of risk, one that doesn’t change. If you’re released with a medium PATTERN score, nothing in the score adjusts the longer you go without committing a new offense (called “desistance”). This means that someone age 40 who committed three offenses in the last three years is scored the same as someone age 40 who committed three offenses 15 years before but stayed clean after that, despite the facts that common sense suggests otherwise.
Using a five-state population database of criminal charges spanning 40 years, the authors found that regardless of the nature of the prior offenses, the likelihood of a former inmate’s recidivism showed a year-by-year decline in predictive value, describing a pattern consistent with exponential decay. That is, each additional year produced a proportional reduction in offending odds. The recidivism rate for people with prior convictions converges with the population base rate within 9–10 years, meaning that after a decade without a new offense, your odds of committing a new crime are no different than the population as a whole.
The authors argued that their “findings provide a dynamic framework for assessing criminal history and challenge reliance on static indicators that may overstate reoffending risk.”
It is not hard to find someone with a minimum PATTERN score and a long time since committing an offense, seeking compassionate release only to have the government say without evidence that the defendant must still be a danger to society. The PATTERN score is a ratchet: if it is high, it proves you’re a danger. If it’s low, the court will find that you’re a danger no matter what PATTERN says.
For those people, the study provides additional scientific evidence on recidivism, which the court and government will probably ignore.
Criminology, Criminal history’s expiration date: Evidence of prediction decay (Sept 19, 2026)
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