‘Starting at the Beginning’ For Criminal History – Update for September 23, 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.

COMMENCEMENT TIME

Usually, commencement happens in the spring. But in calculating Criminal History under the Guidelines, the time since prior convictions occurred is calculated from the “commencement of the instant offense.”

Sometimes, that’s easy. A defendant who pulled a “smash and grab” at a jewelry store and is convicted of a Hobbs Act robbery knows the date and hour his crime “commenced.” But many, if not most, cases are not so cut-and-dried.

Xavier Josey did time for a North Carolina child sex case. Afterward, he was required to register in whatever state he lived as a sex offender. He moved from North Carolina to New York, where he did not properly register. Later, he moved to Pennsylvania, where he failed to register again.

The Feds charged him with nonregistration in Pennsylvania. In scoring his criminal history,  to determine his Guidelines sentence, the District Court looked back 15 years from the date he should have registered in New York, which happened four years before he failed to register in Pennsylvania. The District Court concluded that “commencement of the instant offense” meant commencement of any relevant conduct as defined by USSG § 1B1.3 rather than commencement of the conduct that underlay the count of conviction. It’s like the Hobbs Act defendant having “commencement” of his robbery turned back to the time he took a kid’s French fries at McDonald’s ten years before.

The effect of Xavier’s court setting “commencement of the instant offense” as being a few years before his current crime was that his criminal history included three prior sentences that would otherwise have been excluded. His Guidelines sentencing range became 24 to 30 months instead of 15 to 21 months.

Last week, the 3rd Circuit vacated the sentence.

In calculating a defendant’s Criminal History Category, the Guidelines assign points for each prior sentence of imprisonment, but only if it was imposed within a specified period of time looking back from “the defendant’s commencement of the instant offense.” For prior sentences exceeding one year and one month the “look-back period” is fifteen years, and for any other prior sentence, it is ten years. But what conduct “commence[s]… the instant offense” to anchor the look-back period?

The Guidelines, however, say it is the conduct comprising the offense of conviction. The Sentencing Commission, however, included commentary to USSG § 4A1.2 instructing that “commencement of the instant offense” includes “relevant conduct.” USSG § 4A1.2 cmt. n.8. Guideline § 1B1.3 says that “relevant conduct” includes “all acts and omissions… that were part of the same course of conduct.” And § 1B1.3’s commentary, in turn, describes “same course of conduct” in terms that potentially sweep in a wide range of similar activity.

The 3rd held that “courts may consider commentary only when the text of a particular Guideline is genuinely ambiguous… and here there is no such ambiguity: ‘Commencement of the instant offense’ means the start of the conduct comprising the offense of conviction, i.e., the specific offense conduct for which the defendant is then being sentenced.”

How the commencement date of the instant offense in drug and white-collar conspiracy cases gets figured often has a significant effect on a defendant’s criminal history score. The Circuit has reminded defendants that the commencement date cannot be rolled back on a whim.

United States v. Josey, Case No. 24-1891, 2025 U.S. App. LEXIS 24290 (3d Cir. September 19, 2025)

~ Thomas L. Root

Congress May Tackle Criminal Reform… And That’s Probably Not Good – Update for September 22, 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.

I’VE GOT YOUR GOOD NEWS AND YOUR BAD NEWS

It’s been seven long years since President Trump championed his last crime bill, the First Step Act, through Congress. Although the measure was far from perfect, it represented the biggest advance in sentencing, rehabilitation, and crime reduction in 25 years.

Now, Trump and congressional Republicans are at it again, “actively discussing a sweeping crime bill that would go far beyond their recent forays into DC’s criminal justice system,” Semafor reported last week.

The plans remained ill-formed but are serious, intended to let the Republicans keep the momentum going on a politically advantageous issue.

That’s all good news, but the bad news is that what comes out is unlikely to be a “Second Step Act.” Instead, imagine an extension of the Violent Crime Control and Law Enforcement Act of 1994.

A sense of what’s to come showed up last week, when the House of Representatives passed two bills targeted at DC.  The first, the D.C. Criminal Reforms to Immediately Make Everyone Safe Act, or DC CRIMES Act, which would prohibit DC local officials from changing sentencing laws and restrict the ability of local judges to be more lenient with younger criminals. The second, H.R. 5140, lowers the age at which youthful offenders can be tried as adults for some violent offenses to 14.

The DC CRIMES Act passed the House 240-179, while H.R. 5140 passed 225-203.

That may just be a start, as Congressional Republicans trip over themselves to support Trump’s belief that DC is overrun with crime. Last week, Sen John Cornyn (R-TX) introduced S. 2815 to repeal DC’s Incarceration Reduction Amendment Act and Second Chance Amendment Act, which the Sentencing Project told legislators last week “ignore decades of evidence proving extreme punishments do not make us safer.”  Instead, the bill –  which would require a mandatory life sentence for 1st degree murder – would “not improve safety, but it will have two very predictable impacts. It will increase the burden on the already critically-strained Federal Bureau of Prisons, which houses most individuals convicted of DC Code offenses, and it will increase racial disparities.”

After all of this, there is no reasonable belief that a federal criminal code revision will be anything short of Draconian. Example? Take H.R. 3486, now pending in the House, that would require a mandatory minimum 5-year sentence for an immigrant who illegally re-enters the US after being convicted of a felony and deported. The government has known for a decade that longer sentences do not deter crime. But what matters is symbolism: mandatory minimums look tough on paper, and legislators don’t lose elections by looking too tough.

But steering a sweeping piece of anti-crime legislation through Congress during an election year won’t be easy. Semafor said, “It would require close coordination between Congress and the White House to unite a Republican Party with disparate views of criminal justice that could easily fracture over the issue, not to mention work to win the Senate Democratic support such a bill would need.”

Congressional failure to legislate may be the best chance federal prisoners have, which is simply to hold on to the imperfect system already in place.

Semafor, Republicans eye a crime bill for Trump, and for the midterms (September 17, 2025)

Criminal Reforms to Immediately Make Everyone Safe Act of 2025 (H.R. 4922)

Bill to lower the age at which a minor may be tried as an adult in DC to 14 years of age (H.R. 5140)

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Sentencing Project, Letter to Rep James Comer (September 15, 2025)

Stop Illegal Entry Act of 2025 (H.R. 3486)

~ Thomas L. Root

Correctional Officer Mental Health Forgotten Issue, New Video Says – Update for September 19, 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.

PRISON DOESN’T JUST DRIVE INMATES CRAZY

A 21-minute documentary, “Behind the Wall,” released last week on YouTube, spotlights a critical issue in America’s jails and prisons that is much less discussed than inmate mental health: the toll of trauma on correctional officers.

Behind the Wall explores the human cost for those tasked with maintaining order in a system that can be dehumanizing for anyone who touches it.

Through the voices of correctional officers, the film reveals how the work impacts their physical and mental health, their families, and their communities — and calls for wellness programs dedicated to supporting corrections staff.

Corrections 1 said the film “continues a body of documentary work recognized globally for bringing attention to the realities of prisons and the urgent need for systemic change.”

I found the video sobering and insightful, not the whiny woe-is-us plaint I usually hear from Bureau of Prisons union reps. The 21 minutes I devoted to watching the program were well spent.

I had an inmate reader scoff at my report on this earlier in my newsletter. He expressed complete uninterest, even disdain, in any discussion on the mental well-being of correctional officers.  Obviously,  COs are human beings. If prisoners want to be treated decently, they have to be equally interested in seeing that those around them – including COs – are treated decently.

Beyond that, there’s some real inmate self-interest here. COs who are mentally stressed, unable to control depression or rage, or slipping into substance abuse are less likely to have professional and courteous interactions with their wards.  From gratuitous violence to simple refusal to help get a sick prisoner to medical services, COs suffering from personal crises are unlikely to be of much help to inmates suffering their own.

Corrections1, ‘Behind the Wall’ documentary highlights toll of prison work on correctional officers (September 9, 2025)

YouTube, Behind the Wall

~ Thomas L. Root

The 65% Law (And Other Silliness) – Update for September 18, 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.

EASTER BUNNY SAYS 65% LAW GOES INTO EFFECT ON NOVEMBER 1ST

I would say the silly season is upon us, but that would wrongly imply that it ever left.

Last week, I had a half-dozen questions about changes in the First Step Act to provide relief to people with gun convictions under 18 USC § 924, about how the Armed Career Criminal Act’s drug predicates are changing, and – of course – how the long-anticipated “65% law” is about to go into effect. And every one of the questions said the same – it’s all happening on November 1st.

I repeat what has become my annual myth-busting ritual over the past decade:

  • No Guideline amendment becoming effective on November 1st will apply to anyone who has already been sentenced (that is, become retroactive). This is unfortunate, because the amendments represent fundamental changes that alter how judges impose sentences, manage post-conviction supervision, and evaluate requests for sentence reductions. But the sad fact is that the Commission proposed retroactivity for a few of the changes and then failed to adopt it for any of this year’s slate of changes.

And what will Congress do? Well, yesterday, the House passed H.R. 5140, lowering the age for which youth offenders in the District of Columbia can be tried as adults for certain criminal offenses, changing the threshold to 14 years of age. The Hill reports that “Republicans are set to vote on several other bills relating to D.C. crime later this week as they carry on President Trump’s crusade against crime in the nation’s capital after his 30-day takeover of the city’s police force expired.”

It’s a safe bet that no one in Congress has the stomach to pass any bill that will ease criminal laws or help prisoners.  The crusade, as The Hill described it, is against crime, not for crime.

  • This means that there is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of their time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off. Nothing, nada, zilch, bupkis.

As the Federalist – commenting on the mentally ill suspect accused of stabbing a Ukrainian immigrant to death last month in Charlotte, North Carolina – said last week, “Instead of buying into the dangerous lie that mass incarceration doesn’t work, we should be building more prisons and sending violent criminals there for lengthy sentences… What we’ve been doing for years now is dangerous and morally indefensible. Releasing violent criminals onto the streets, as White House deputy chief Stephen Miller said Tuesday, is a ‘form of political terrorism’ — perpetrated by Democrat elected officials against the people who live in their jurisdictions.”

Do these people sound like they’re interested in any common-sense criminal justice reform? Is there an Easter Bunny?

I am sure that I will have to write this again next year.  And the year after that.  And the year after that. Ad infinitum.

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Federalist, We Need To Bring Back Mass Incarceration And Involuntary Commitment (September 10, 2025)

~ Thomas L. Root

How Do You Spell ‘Give Me A Brak’? – Update for September 16, 2025

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3rd CIRCUIT HELPS OUT LITIGANT WITH THE ‘LEGAL JARGIN’

Chris Lauria, detained in the Allegheny (Pennsylvania) County Jail, sued some corrections officers for excessive force and deliberate indifference. Chris proceeded pro se, and he wasn’t very good at it. At one point, he asked the court to appoint an attorney to represent him because he did not “speak Legal Jargin.”

Chris, like many pro se litigants, struggled in opposing an F.R.Civ.P. 56 motion for summary judgment that the COs had filed, which argued that the case should be thrown out because Chris had not exhausted administrative remedies by going through the jail grievance system first. The COs filed an affidavit from the jail warden that no grievance from Chris had ever been scanned into the system. Chris wrote back that he had been in the Special Housing Unit and had slipped his grievance under the door for pickup, the usual procedure for people in the SHU and only way he had to file.

In granting summary judgment, the District Court relied in large part on a 3d Circuit holding in United States ex rel. Doe v. Heart Solutions, PC, a 2019 case that held that an unsworn statement not made under penalty of perjury cannot be considered in deciding a Rule 56 summary judgment motion. The District Court concluded that Doe meant it “cannot consider the unsworn statements related to exhaustion as part of its summary judgment analysis.”

But Rule 56 has an escape hatch: Rule 56(e) permits a court to issue appropriate orders when “a party fails to properly support an assertion of fact.” Courts have the discretion to allow litigants to address errors in their summary judgment materials, including by allowing additional time for the resubmission of unsworn allegations in supplemental affidavits.

Last week, the 3d Circuit reversed the District Court and reinstated Chris’s lawsuit. It held that the District Court had expanded the scope of the Doe holding “in a small yet significant way. In Doe, we held that statements that are both unsworn and not given under the penalty of perjury are ‘insufficient to create an issue of fact on summary judgment’… But our holding in Doe does not compel courts to completely disregard unsworn statements when assessing the propriety of summary judgment: such statements may inform a court’s decision pursuant to [Rule] 56(e) to issue appropriate orders when “a party fails to properly support an assertion of fact.”

District courts have “ample discretion to call upon the parties to remedy the defects [in summary  judgment materials], by submitting supplemental affidavits or otherwise,” the Circuit said, and “[i]n determining whether to exercise this discretion, courts are permitted to consider the totality of the allegations made, both sworn and unsworn.”

The 3d didn’t tell the District Court whether to give Chris a chance to resubmit his statements under penalty of perjury, but underneath the “legal jargin,” the implication that the Circuit thought the District Court should consider that the failure to do so “appeared to be the product of a pro se litigant’s ignorance of procedural rules — and had not been objected to by Appellees in their summary judgment briefing,” Chris should get a procedural break.

Lauria v. Lieb, Case No. 24-1461, 2025 U.S. App. LEXIS 23622 (3d Cir. September 12, 2025)

United States ex rel. Doe v. Heart Solutions, PC, 923 F.3d 308 (3d Cir. 2019)

~ Thomas L. Root

Shocking News – BOP Healthcare ‘Unacceptable’ – Update for September 15, 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.

DOG BITES MAN

In journalism, a ‘dog bites man’ story is one that is completely unsurprising and unremarkable. Last week, in a perfect example of this genre, the Dept. of Justice Office of Inspector General reported that yet another Bureau of Prisons facility was providing grossly substandard healthcare to inmates.

On Wednesday, the OIG issued a report on its unannounced inspection of FDC SeaTac, the detention center located about a thousand yards south of SeaTac Airport between Seattle and Tacoma, Washington. The inspection was conducted under the OIG’s authority granted in the Federal Prison Oversight Act, which requires regular independent reviews of BOP facilities.

The inspection, which occurred last December, found only three out of the FDC’s nine nursing positions and one of two pharmacist positions were filled. “At the time of our inspection,” the Report said, “10 of 20 Health Services Department positions were vacant, including the Clinical Director position (which had been vacant for at least 18 months). Moreover, based on the BOP’s own staffing projection tool, the institution appears to require a doubling in the size of its Health Services Department—from an authorized level of 20 positions to 40 positions—to meet its healthcare needs.”

The report was the sixth issued by the OIG on unannounced inspections of BOP facilities, all of which were unstinting in their criticism of BOP healthcare. A report that yet another BOP facility was not meeting inmate medical needs was

Even the FDC SeaTac Health Services Department leadership called health services staffing a crisis. The short staffing meant that Health Services “had to prioritize the provision of emergency care to inmates and we identified extensive delays in care for both routine and serious health concerns. For example, we identified concerns with FDC SeaTac’s ability to provide medical care to inmates who submit medical care requests. We selected a sample of 29 medical requests that appeared to be among the most serious, including for respiratory distress and severe pain, and found that 62 percent (18 of 29) were never addressed by a healthcare provider. We also determined that FDC SeaTac was unable to provide timely outside medical appointments for inmates with conditions that could not be addressed at the institution.”

As of November 2024, SeaTac had a backlog of 480 blood draw orders more than 30 days past due, again due to staffing shortages. The Report said, “Health Services Department employees told us that without blood test results they could not appropriately monitor the health of inmates with chronic conditions, such as diabetes, or diagnose new illnesses. For example, more than half of diabetic inmates whose records we reviewed had not received necessary diabetic testing within recommended time frames.”

OIG staff also identified unsafe practices unrelated to staffing. Crushed pills were stored loosely in plastic bags. Exam tables were filthy. Hazardous medical waste bins overflowed. Expired medications were still in use and lab specimens were left unrefrigerated. Insects crawled through clinical areas, and staff food was stored alongside medical supplies.

Writing in Forbes, Walter Pavlo said, “The inspection paints a picture not just of underfunding but of dangerously neglected standards of care.”

Sen Patty Murray (D-WA) called the conditions at the detention center unacceptable. “Individuals in federal detention should not be forced to risk their lives because they can’t get urgent medical issues addressed,” she said in a prepared statement. “I’m reaching out to the Bureau of Prisons about this report—much more needs to be done to make sure people in federal custody can get the health care they need.”

Meanwhile, last Friday, DOJ announced more than 50 new measures aimed at reducing suicides among prisoners in federal custody. The announcement follows recommendations from a department-wide working group tasked with developing strategies to address suicide in prison and jail.

While federal facilities record a lower suicide rate compared to state prisons and local jails, officials said, DOJ must work to prevent every possible death. The new framework, outlined in the Report on Actions to Reduce the Risk of Suicide by Adults in Federal Custody and Advance a Culture of Safety, sets five objectives: expanding information sharing, improving access to mental health care, fostering healthier facility environments, reducing opportunities for self-harm, and forming policy through data-driven research.

Spokesman-Review, Federal inspection finds an inmate healthcare ‘crisis’ at SeaTac detention center amid health worker shortage (September 10, 2025)

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Detention Center SeaTac (September 10, 2025)

Federal Prison Oversight Act, Pub.L. 118-71, 138 Stat. 1492 (July 25, 2024).

Shore News Network, Justice Department launches sweeping reforms to curb suicides in federal custody (September 12, 2025)

Forbes, Troubling Findings At FDC SeaTac: A 2025 OIG Inspection Report (September 10, 2025)

~ Thomas L. Root

Failure to Anticipate Is Not Ineffective Assistance – Update for September 12, 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.

Should Have Seen That Coming

Tyree Neal pled guilty to conspiracy to distribute cocaine in violation of 21 USC §§ 841(a)(1), (b)(1)(C), and 846. At his sentencing, the district court found that Ty’s prior Illinois cocaine conviction supported a recidivism enhancement under § 841(b)(1)(C) that raised his maximum sentence from 20 years to 30 years. The district court hammered him with 30 years.

Two years after Tyree lost his appeal, the 7th Circuit held in United States v. Ruth that under the “categorical approach,” because Illinois’s definition of cocaine is broader than the federal definition, an Illinois conviction for cocaine delivery could not support a recidivism enhancement under 21 USC § 841(b)(1)(C). This meant that if Ty were sentenced today, his maximum sentence would be 20 years.

Ty filed a 28 USC § 2255 habeas corpus motion arguing that his appellate, sentencing, and plea attorneys were all constitutionally deficient because they failed to anticipate the argument that ultimately won in Ruth. Ty claimed they should have seen it coming and raised it in his case.

The district court denied his § 2255 motion. Last week, the 7th Circuit agreed.

The Circuit said the proper inquiry is “an objective assessment of counsel’s performance considering the options available to the defense.” Considering his appellate attorney, the 7th agreed that “looking back, it is fair to say the Ruth argument was stronger than those appellate counsel made (if that is not already apparent from the outcome of Ruth compared to Neal’s direct appeal). But we cannot conclude the Ruth argument was “clearly stronger” at the time of Neal’s appeal.

“A significant obstacle to comparison is that the arguments aimed at different goals. As an appellate lawyer must, counsel curtailed the number of issues by focusing on Neal’s conviction. If her arguments prevailed, Neal would have had a second opportunity for trial and acquittal. A successful Ruth challenge would have left Neal with a 20-year sentence. Those different ends do not affect the likelihood of success for their different means, but they would influence an attorney’s professional judgment about the “strongest” issues for appeal. Although we can imagine situations where an argument against a defendant’s sentence is strong enough that it must be raised even if in the alternative, appellate attorneys are not always required to pick issues with a higher likelihood of success but a lower reward.”

“Holding that appellate counsel provided ineffective assistance would thus encourage a kitchen-sink approach to advocacy,” the Circuit said, “the implicit logic being that she should have made the Ruth argument in addition to the issues she raised, not instead. Would an attorney still think we would find the Ruth argument persuasive if she knew it shared a limited page-count with Neal’s plea arguments? “As for sentencing counsel, the 7th said, he did what Ty asked him to, attackng the enhancements for use of violence, obstruction of justice, and reckless endangerment. After Neal provided “the names of a number of witnesses that he wanted counsel to interview,” counsel retained an investigator to interview those witnesses, subsequently spoke with several, and subpoenaed them to appear at Ty’s sentencing. Counsel also negotiated a plea deal that, if the court had followed it, would have given Ty the same 20-year sentence that a Ruth issue would have given him.

The Circuit said,

After Ruth, we can comment that sentencing counsel’s attempts to lower Neal’s offense level and convince the district court to exercise its discretion leniently were not the best possible approach to reducing Neal’s exposure. But it is difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy.

Neal v. United States, Case No. 23-1722, 2025 USApp LEXIS 23018 (7th Cir. Sept 5, 2025)

United States v. Ruth, 966 F.3d 642 (7th Cir. 2020)

~ Thomas L. Root

Some Bureau of Prisons Shorts – Update for September 11, 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 WEEK

More Money: Under President Trump’s proposed 2026 federal pay raise, most federal employees will get a 1% across-the-board pay increase.  However, some federal law enforcement personnel will get an additional 2.8% pay increase (3.8% total) matching the planned military pay raise for 2026.

Last week, the Office of Personnel Management said that Bureau of Prisons correctional officers will be included in the 3.8% federal law enforcement 3.8% pay raise.

Federal News Network, OPM to create special salary rate for Trump’s planned law enforcement pay raise (September 3, 2025)

Appeals Hearing on Transgender Injunctions: A US Court of Appeals for the DC Circuit panel last week showed skepticism that it should overturn preliminary injunctions blocking President Trump’s executive order requiring the transfer of 19 federal prisoners who are transgender women to male prisons.

Last winter, a US District Court judge granted an injunction against the transfers, finding they would likely violate the 8th Amendment’s prohibition against cruel and unusual punishment.

Last week, a three-judge appeals panel heard administration arguments that the injunction against the January 20th executive order – that directed the Attorney General to bar people assigned male at birth from women’s prisons and ordered the BOP to revise gender-affirming medical care policies – should be lifted. A lawyer for the coalition of 19 trans women incarcerated in federal women’s prisons who had challenged their transfer to men’s prisons urged the panel to affirm the injunctions and prevent further sexual violence, telling the panel, “This isn’t about some abstract questions, philosophical debates. This is about the constitutional limits on prison officials’ ability to ignore known and serious violence risks.”

During arguments last week, Senior US Circuit Judge Raymond Randolph said that the BOP’s conduct in the case did not seem to follow the requirements set in Trump’s executive order. Randolph noted that a provision of the Prison Rape Elimination Act requires the BOP to ensure an inmate’s safety when considering a transfer to a new prison, which did not appear to be followed in several of the plaintiffs’ cases.

A decision on the case has not yet issued.

Doe v. Bondi, Case No. 25-5213 (DC Cir, oral argument September 5, 2025)

Courthouse News Service, DC Circuit dubious of Trump effort to send 19 trans inmates to male prisons (September 5, 2025)

Big Brother Will Be Watching:  The BOP is asking private industry and community groups to propose better ways to monitor prisoners on home confinement.

The BOP has requested feedback on whether technology, virtual supervision, and hybrid service models can serve as substitutes for traditional halfway houses and day-reporting centers by using biometric tools such as geofencing, video check-ins, and electronic bracelets as potential compliance measures. Some companies already market smartphone apps that use facial recognition and liveness detection, along with GPS-enabled wearables and geofencing dashboards.

The inquiry reflects longstanding strains in the prerelease system due to rising contractor costs, limited facility availability in rural areas, and growing demand for pre-release placements due to the First Step Act and Second Chance Act.

For corrections officials, biometric monitoring systems promise real-time accountability, scalability, and reduced staffing needs. Civil liberties advocates, however, see risks, having described electronic monitoring as a form of “digital imprisonment,” warning that malfunctions, restrictive rules, and intrusive data collection can turn homes into “e-carceration” sites.

Responses to the BOP solicitation for proposals are due by September 30th.

Biometric Update.com, Federal prisons turn to biometric monitoring for reentry programs (September 3, 2025)

~ Thomas L. Root

8th Circuit Affirms ‘Cookie-Cutter’ Approach to Felon Firearm Disenfranchisement – Update for September 9, 2025

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ONE AND DONE

The 8th Circuit last week underscored its hostility to any “as applied” 2nd Amendment challenge to the 18 USC § 922(g)(1) felon-in-possession statute.  The Circuit affirmed its holding in United States v. Jackson that “the federal prohibition on possession of firearms by felons is constitutional as a categorical matter. There is no need for a felony-by-felony analysis, and no requirement of an individualized determination of dangerousness as to each person in the class of prohibited persons.”

In 1991, Anthony Browne was a member of the Black Gangster Disciples motorcycle gang/criminal organization. He and some other BGDs followed a rival gang member home. One of Browne’s fellow gang members shot up the place, hitting the intended victim’s mother. While Tony wasn’t the triggerman, he was convicted of committing willful injury and criminal gang participation and got 10 years in prison.

After being released from prison in 1998, Tony got a computer science degree from the University of Iowa and worked for the next 20 years as a software engineer. In 2021, the Dept of Defense granted him a security clearance as part of his job. He also earned an executive order in 2005 from the Iowa governor restoring many of his rights (but not the right to own guns). At age 52, Tony has not had a brush with the law in 34 years.

No matter, the 8th said last week. A “legislature may dispossess forcible felons as a categorical matter,” the Circuit said, and Tony’s argument that under the 2nd Amendment, he is entitled to issuance of a handgun permit unless the sheriff concludes after an individualized determination that Browne is “currently dangerous,” is nothing more than an end run around that.

Writing in The Reload, Jake Fogleman observed that “while he’s no Bryan Range or Melynda Vincent, the distance from [Tony’s] conduct that could credibly lead to him being labeled ‘dangerous’ is significant. There do not appear to be any recent indications that he poses an ongoing threat to the community. On the contrary, he has by all accounts turned his life around. Browne argued his recent history indicates he’s peaceable and, therefore, should have his rights restored. The panel disagreed… ‘Browne’s argument is inconsistent with the relevant history and this court’s conclusions in Jackson. Early American legislatures ordered disarmament and authorized punishment of death for forcible felonies and even for some non-violent offenses… [W]e conclude that the government has satisfied its burden to show that a lifetime restriction on the right of forcible felons to possess firearms, subject to a gubernatorial pardon, is consistent with the Nation’s historical tradition of firearms regulation.”

Browne v. Reynolds, Case No. 24-1952, 2025 U.S.App. LEXIS 22449 (8th Cir. Sept 2, 2025)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

The Reload, Analysis: Eighth Circuit Ruling Shows Thorny Legal Questions Still Surround Rights Restoration Push (September 7, 2025)

~ Thomas L. Root

10th Circuit Says 2nd Amendment Inquiry on § 922(g) Should Focus on Future Dangerousness – Update for September 8, 2025

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MINORITY REPORT

A divided 10th Circuit panel last week added a disturbing gloss onto the issue of the constitutionality of 18 U.S.C. § 922(g) (which prohibits felons, drug users and others from possessing guns), suggesting that courts should consider a defendant’s future dangerousness in an “as applied” challenge to whether the 18 USC § 922(g)(3) prohibition on unlawful drug users possessing guns violates the 2nd Amendment.

The Circuit’s approach is reminiscent of the Tom Cruise dystopian movie “Minority Report,” where the police arrested people for crimes they had yet to commit.

Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2nd Amendment.

The 10th Circuit reversed.

In the wake of the Supreme Court’s decision in United States v. Rahimi, the 10th noted, “the appropriate [2ndAmendment] analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” The Circuit complained that the district court found that “our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.  But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.”

The government argued that “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.'” Jared, on the other hand,  contended “marijuana users are not in a class of dangerous people.” The 10th said that to determine whether § 922(g)(3) as applied to Jared was “consistent with” the government’s dubious claim, it “must show non-intoxicated marijuana users pose a risk of future danger,” and it remanded the case to the district court for additional fact-finding.

It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2ndAmendment challenge.”

United States v. Harrison, Case No. 23-6028, 2025 U.S.App. LEXIS 21978 (10th Cir. Aug 26, 2025)

~ Thomas L. Root