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 23

<><>

Rutherford and the Future of Compassionate Release
Home Is Where The Gun Is
Re-Entry Minicamp
Cert Granted on Using 2241 Petition for FSA Time Credits

<><>

RUTHERFORD AND THE FUTURE OF COMPASSIONATE RELEASE

Debate over the Supreme Court’s Rutherford v. US decision continues. The Marshall Project declared that the Supremes were “tightening early prison release.” Forbes said Rutherford and Fernandez v US, its companion case, “mark[] a decisive turn in [compassionate release] evolution, pulling the doctrine back toward its more limited origins and rejecting a more expansive vision embraced by the US Sentencing Commission just a few years ago.”

Before 2018, a defendant convicted of two 924(c) counts in the same proceeding for using a gun in a crime of violence or drug offense faced a mandatory minimum of 30 years. An additional 924(c) would bump it up to at least 55 years. The First Step Act changed the law so that three 924(c) convictions in the same proceeding carried a mandatory minimum of at least 15 years, not a meager sentence, but only 27 pct of the old punishment.

In an 11th-hour deal to get votes for FSA passage, the Senate chose not to make the change retroactive.

Nevertheless, many believed that compassionate release could not only serve as a response to personal hardship but also as a limited mechanism to address inequities embedded in the law itself. The 2nd Circuit in US v Brooker and 4th in US v McCoy led the charge. Then, in the November 2004 Guideline amendments, the USSC added Sec 1B1.13(b)(6), which permitted relying on the fact that a non-retroactive change in the law created a gross sentencing disparity – along with other factors – to support an “extraordinary and compelling reason” for compassionate release (CR).

Many courts began to treat such a disparity as part of the “extraordinary and compelling” analysis, particularly when combined with rehabilitation and other individualized factors. But various federal circuits split on whether this approach was permissible. Some circuits held that nonretroactive changes in sentencing law could not justify compassionate release. Others concluded that such disparities could be considered, especially when they produced grossly disproportionate outcomes

The Rutherford defendant – who had two 924(c) sentences for using a gun during a bank robbery – argued that the fact that his minimum sentence would have been about a third of what he got pre-FSA for the gun charges supported a grant of CR. Not so, SCOTUS said: Disparities created by non-retroactive amendments are not “extraordinary,” but rather a routine feature of legislative reform. Likewise, they are not “compelling” because they reflect Congress’s intentional decision to leave existing sentences in place.

At the heart of the Rutherford decision is a reaffirmation of congressional intent and the principle of non-retroactivity. The Court emphasized that when Congress reduces a statutory penalty but declines to apply that change retroactively, it is making a deliberate policy choice. Allowing courts to use that same change as a basis for sentence reduction through compassionate release would undermine what Congress had elected to do.

Writing in Forbes last week, Walter Pavlo observed that “[a]t its core, the Supreme Court’s decision reflects a broader commitment to finality in criminal sentencing. The Court emphasized that Congress has the authority to define crimes and set punishments, and that courts must respect the lines Congress draws, including decisions about retroactivity. This emphasis on finality is not new, but it carries particular weight in the context of compassionate release. By limiting the grounds for eligibility, the Court has reinforced the idea that sentence modification is the exception, not the rule.”

The Rutherford decision will have limited effect on CR filings. Judges have cited “unusually long sentence and change in law” as part of their rationale for granting release in about 20% of CR cases.

In Fernandez, the defendant was granted CR because the court had doubts about his guilt, despite the fact that he was convicted by a jury after less-than-solid testimony by co-conspirators seeking to save their own skins. The Supreme Court said attacks on convictions belong in 28 USC 2255 motions, not in CR motions. Last week, Slate asked, “Why would an innocent prisoner seek compassionate release?” It then answered its own question: “Because Congress and the Supreme Court have severely limited prisoners’ access to federal habeas corpus relief over the past several decades.”

Rutherford and Fernandez together say compassionate release is not a workaround for procedural limits on correcting legal errors in a criminal case or a substitute for retroactive application of new laws that reduce penalties. Justice Barrett explained that the very term “compassionate release” — which is nowhere found in the statute, by the way – “highlights its focus on granting mercy rather than righting legal wrongs.” But, as former Sentencing Commission ex officio member Jonathan Wroblewski wrote last week in the Sentencing Matters Substack, Justice Barrett provided a roadmap for people seeking CR. In Rutherford, he notes, she repeatedly

underscores that compassionate release is not about the crime itself, the proof of that crime, or changes in the law governing either, but rather about how a defendant’s personal circumstances have changed and who that defendant has now become… As to the meaning of “extraordinary and compelling,” Justice Barrett again is clear. “While the terms ‘extraordinary’ and ‘compelling’ leave room for judgment, they are not so flexible as to encompass any consideration.” “‘Extraordinary’ means ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent’ . . . (‘[o]ut of the usual or regular course or order’). ‘Compelling’ means ‘tending to convince or convert by or as if by forcefulness of evidence’ . . . (‘irresistible, demanding attention, respect’).”

Barrett holds that “the required finding of extraordinary and compelling is ‘a distinct analytical step that imposes independent and ascertainable limits on access to compassionate release.’” As Wroblewski notes, “Barrett effectively endorses a totality of circumstances approach for determining extraordinary and compelling personal circumstances.”

Any movant for CR should focus on the totality of his or her circumstances. CR isn’t dead… it’s just very personal.

Rutherford v US, Case No 24-820, 2026 USLEXIS 2294 (May 28, 2026)

Fernandez v US, Case No 24-556, 2026 USLEXIS 2295 (May 28, 2026)

The Marshall Project, How The Supreme Court Is Tightening Early Prison Release (June 6, 2026)

Slate, Ketanji Brown Jackson Stands Firm—and Alone—on Compassionate Release (May 29, 2026)

Forbes, Supreme Court Narrows Compassionate Release For Federal Prisoners (June 5, 2026)

Substack, What Compassionate Release Could Still Be (June 4, 2026)
<><>

HOME IS WHERE THE GUN IS

Duke Esquire had his home searched after a shooting occurred nearby. Police did not find the gun used in the crime, but they did find a different gun. Duke, who had previous state convictions for conspiracy to possess and distribution of heroin, was charged with federal felon-in-possession under 18 USC 922(g)(1).

Duke argued that 922(g)(1) was unconstitutional under the 2nd Amendment as applied to him, because keeping a gun at home for self-defense was different than taking it out in public, and the history of gun legislation in America recognized as much. He also argued that a drug offense was not inherently violent and was not the kind of crime punished in colonial days by gun confiscation.

Last week, the 5th Circuit disagreed, holding that the history and tradition of gun laws in America punished people who were dangerous, and drug dealing was a dangerous undertaking.

“[T]he home-based distinction Duke attempts to draw within our Nation’s historical tradition is mugged by the reality that our historical laws support his disarmament, even in the special confines of his home,” the Circuit held. “While the Constitution safeguards the core right to keep and bear rights inside the home, it does not dislocate the government’s regulatory power to strip certain groups of this right Congress is entitled to make categorical judgments, including a values-based policy judgment that convicted drug traffickers, such as Duke — whose conviction involved an inherently dangerous activity — may be disarmed under 922(g)(1) consistent with our historical tradition. That conclusion does not rest upon an individualized assessment that Squire is dangerous, based on some amorphous understanding of the word… Nor does it reflect a freewheeling judicial balancing of rights and safety… Instead, Duke’s dangerousness is premised solely on his drug trafficking offense, which places him in a class of dangerous felons that our regulatory tradition permits legislatures to disarm.”

US v Squire, Case No 25-30324, 2026 USApp LEXIS 15873 (5th Cir. June 2, 2026)
<><>

RE-ENTRY MINICAMP

Pro teams conduct preseason “mini-camps.” Why not the BOP?

On May 28, the Bureau announced that it would begin transferring “eligible individuals” to minimum-security camps once the inmates have received a halfway house or home confinement placement date.

The announcement confusingly states that “[t]hese transfers must be completed in accordance with Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification. It also provides that “[w]hile the initiative applies to approved individuals across security levels, initial implementation will prioritize those currently housed in low security facilities who are appropriate for camp placement.”

The BOP said in a press release that intermediate placement in a minimum-security camp can provide a more community-like setting while preserving structure, oversight and accountability. The Bureau contended that this kind of step-down placement better prepares individuals for release than a direct transition from higher-security institutions.

The confusion is this: If transfers are completed according to PS 5100.08 CN-3, one must wonder why those people have not already been transferred. If low-security people are “appropriate for camp placement,” why are they not already so placed?

The BOP also cast the move as an operational and fiscal decision. By relying on existing camp infrastructure — much of which is underutilized — the Bureau said it can reduce reliance on higher-cost placements, lower operating costs and use available capacity more efficiently.

The BOP said camp placement will not be available to sex offenders, deportable aliens, Disruptive Group members, domestic or international terrorists, inmates who require heightened monitoring, inmates with recent serious misconduct, or cases in which placement would pose an identifiable public-safety risk. That should give the agency ample wiggle room to exclude anyone it deems unacceptable for such placement.

Correctional News reported, “The BOP also cast the move as an operational and fiscal decision. By relying on existing camp infrastructure — much of which the agency said has historically been underutilized — the bureau said it can reduce reliance on higher-cost placements, lower operating costs and use available capacity more efficiently.”

BOP, Strategic Expansion of Minimum-Security Camp Utilization (May 28, 2026)

Correctional News, BOP Expands Minimum-Security Camp Use for Reentry (June 2, 2026)
<><>

CERT GRANTED ON USING 2241 PETITION FOR FSA TIME CREDITS

Prisoners earning First Step Act time credits under 18 USC 3632 use the first 365 credits to shorten their sentences. Excess credits entitle them to more halfway house (HH) or home confinement (HC).

A stark circuit split has developed over whether an inmate can bring a habeas corpus claim when the credits being denied to him would only give him more time in HH or HC.

Last week, the Supreme Court granted certiorari to a pro se petition that will result in the Court deciding whether a claim regarding the application of FSA time seeking only accelerated transfer to HH or HC can be brought in a 28 USC 2241 habeas petition.

The case will be argued next fall.

Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)
<><>

The LISA Newsletter is copyright 2026, LISA Foundation, PO Box 636, Norwalk OH 44857.

We use pseudonyms for defendants who are currently locked up.

PLEASE SHARE THIS NEWSLETTER