Shocking News from GAO! BOP Has Messed Up FSA Placement! Who’d Have Guessed? – Update for February 17, 2026

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GAO PAINTS PICTURE OF DEADBEAT BOP’S CHAOTIC HALFWAY HOUSE MANAGEMENT

The Government Accountability Office painted a bleak picture of the Bureau of Prisons’ halfway house placement program, a chaos of mismanagement that deprives inmates of First Step Act credits they have earned and halfway house operators of payments they are owed.

The 7-year-old First Step Act encourages federal prisoners to complete programs proven to reduce recidivism by promising them earned time credits that can shorten sentences and extend their time in prerelease custody in Residential Reentry Centers or RRCs (which we know as halfway houses) and on home confinement. Writing in Forbes last week, Walter Pavlo said, “Lawmakers understood what correctional professionals have long known. The last months of a sentence should focus on reconnecting people to jobs, housing, and families, not warehousing them in prison.”

Reality, however, is muted. The GAO reports that not only has the BOP not consistently moved eligible inmates into halfway houses on time, but often, the BOP does not even know how many people are eligible for and entitled to placement.

The Report said that “BOP officials said they do not know because the dates individuals are eligible to transfer are not readily available… GAO found that BOP did not apply all the earned time toward placement in RRCs and home confinement for 21,190 of 29,934 individuals reviewed, for reasons such as insufficient RRC capacity and court orders. However, the full scale of this issue is unknown due to the lack of readily available data on eligibility dates.”

The problem has been due in part to limited capacity in BOP-contracted halfway house and home confinement spaces, BOP officials told GAO. However, the Report stated, “BOP does not know the full extent of this shortage because it has not comprehensively assessed its capacity and related budgetary needs. Without these assessments, BOP cannot ensure it has enough space for incarcerated individuals to transfer on time. BOP could also miss opportunities to increase revenues and decrease costs to the federal government.”

As of September 30, 2024, the BOP was using 91% of its contracted halfway house beds and 121% of its contracted home confinement space. A full 38% of halfway houses were at or above 95% capacity, and 62% were at or above the 95% capacity for halfway house slots. In fairness to the BOP, since William K. Marshall III assumed the Director’s slot, the agency has prioritized home confinement through the alternative Federal Location Monitoring program, managed by the US Probation Office instead of halfway house staff.

GAO also found that the BOP has been a deadbeat on a scale that would get a defendant on supervised release sent back to prison. From 2022 through March 2025, the Bureau “made roughly 65,000 late payments to contractors, including to RRCs,” according to the Report. “As a result, the agency paid $12.5 million in interest penalties as part of $2.8 billion in payments to contractors. In addition, GAO found that BOP paid RRCs late about 70% of the time, from fiscal years 2023 through 2024.”

It should be unsurprising that halfway houses would be less than enthusiastic about working with the BOP to expand their businesses: the Report said that as a result of late payments, halfway houses “face hardships due to the late payments — needing private loans to pay staff. One halfway house representative said late payments have made some halfway houses reluctant to bid for new BOP contracts, which can further complicate BOP’s plans to expand capacity.”

Pavlo wrote, “The BOP understands that it has a problem and after years of not addressing it now realize that the solution is going to take time.” A BOP spokesman said, “[T]he Bureau has actively posted Requests for Information… in more than 20 locations nationwide to expand RRC and home confinement services… With respect to home confinement, the Bureau is transferring individuals as quickly as possible once they reach their Home Confinement Eligibility Date and meet all statutory and public safety criteria. We are committed to ensuring individuals are not held longer than necessary when they are appropriate for home confinement placement.”

Government Accountability Office, Bureau of Prisons: Actions Needed Better Achieve Financial and Other Benefits of Moving Individuals to Halfway Houses on Time (February 11, 2026)

Forbes, GAO Critical of Bureau of Prisons Use of Halfway Houses (February 12, 2026)

~ Thomas L. Root

Trending Now… Running Out of Lawyers and Poor People – Update for February 13, 2026

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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.

LEGAL TRENDS YOU SHOULD KNOW

This is where current events affect federal prisoners.

Government Running Out of Troops:  Generally, federal prisoners and defendants would think that the fewer resources the government has to throw against them, the better. Whether that’s true may soon be put to the test.

The ranks of skilled litigators in US Attorneys’ offices (USAOs) nationwide – especially on the criminal side of the office – have been gutted by resignations over what many Assistant United States Attorneys complain is “efforts by senior department leaders to push career prosecutors into doing Mr. Trump’s bidding,” according to The New York Times.

The DOJ’s workforce declined by 8% between November 2024 and November 2025, according to Office of Personnel Management data. At the same time, USAOs have lost 14 pct of their employees, “a staggering one-year reduction unlike anything the department has seen in recent memory,” The Times reported that former officials said. “Worse still, the departures have hit the upper tier of prosecutors in premier offices the hardest, simply because those with the most experience were the most likely to have lucrative job prospects on the outside.”

In a little-noticed 8th Circuit filing last week, the U.S. Attorney for the District of Minnesota, Daniel Rosen, says his short-staffed office has been abandoning “pressing and important priorities” to manage the flood of immigration cases stemming from Operation Metro Surge, the Trump administration’s mass deportation push in the Twin Cities, which is now ending.

Rosen said his office is buckling under the crushing weight of hundreds of emergency lawsuits filed by immigrants detained by ICE in recent weeks. He said 427 had been filed in January alone, and that the pace is expected to continue into February.

In a filing accompanying Rosen’s statement, DOJ attorneys wrote that the “crushing burden” caused by immigration cases had led US attorneys nationwide to “shift resources away from other critical priorities, including criminal matters.”

Rosen said his team of attorneys handling civil litigation is “down 50%” — a reference to a wave of resignations and departures at the start of Operation Metro Surge — and that those who remain “are appearing daily for hearings on contempt motions.”

I have been seeing an increasing number of unusually long-date requests for extension of time from USAOs to respond to prisoner § 2255 motions and compassionate release cases. At the same time (although this is very hard to quantify), it seems to me that the quality of legal scholarship in government filings has fallen.

SCOTUS Running Out of IFP Filers:  The National Law Journal reported last week that “a large pool of cases at the U.S. Supreme Court has been drying up in recent years, and experts aren’t sure why.” Appeals from indigent litigants (“in forma pauperis” or “IFP” filers) have fallen precipitously over the past several Supreme Court terms and are now at their lowest level in the 21st century.

In its most recent term, SCOTUS received around 2,500 appeals from indigent petitioners, fewer than half the number of indigent appeals from six years ago, and about a third of the number filed 20 years ago. Historically, IFP filings have accounted for the majority of annual cases filed in the Supreme Court. In the October 2006 term, for example, 7,132 IFP filings came in compared to 1,723 cases filed by paying petitioners.

“Despite this,” the NLJ said, “the Supreme Court overwhelmingly chooses to take up cases from the paid docket, rejecting all but a handful of IFP appeals each year… In the October 2006 term, for example, the court granted certiorari, or review, of 15 petitions filed by indigent litigants. By contrast, the court accepted just four in forma pauperis petitions during its most recent completed term.”

Politico, Top Minnesota prosecutor says ICE cases are sidelining ‘pressing priorities’ (February 5, 2026)

The New York Times, Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors (February 7, 2026)

National Law Journal, At the Supreme Court, a Stark Drop in Appeals From the Poor (January 29, 2026)

~ Thomas L. Root

8th Circuit Remands ‘As Applied’ 2A Drug/Gun Case – Update for February 12, 2026

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DOPER WITH GUN GETS A 2ND AMENDMENT RE-DO, 8TH SAYS

Alexander Wesley Ledvina was caught high on marijuana with a gun in his car. He admitted he had previously bought guns at the same time he was using weed and coke, but on the ATF forms he had filled out, Alex had denied being a drug abuser.

Alex was convicted of violating 18 USC § 1001 by lying on a government form and violating 18 USC § 922g)(3) by being a drug user in possession of a gun. He appealed, arguing that § 922(g)(3) was unconstitutionally vague as applied to him by not defining the term “unlawful user” of drugs, and the statute that it violated the 2nd Amendment both facially and as applied to him.

Last week, the 8th Circuit gave Alex half a loaf. While § 922(g)(3) as applied to Alex was not unconstitutionally vague, Alex’s challenge that § 922(g)(3) as applied to him violated the 2nd Amendment required a remand to the district court.

In United States v. Cooper, the 8th previously identified “at least two situations when § 922(g)(3) is consistent with the 2nd Amendment” – when drug use (1) made a defendant act like someone who is both mentally ill and dangerous, or (2) would cause a defendant to induce terror, or pose a credible threat to the physical safety of others with a firearm. “Without more,” the 8th held, “drug use generally or marijuana use specifically does not automatically extinguish a person’s 2nd Amendment right.”

The Circuit remanded Alex’s case for the district judge to consider the Cooper factors as they might apply to our weed-smoking defendant.

United States v. Ledvina, Case No. 24-2441, 2026 U.S. App. LEXIS 3743 (8th Cir. Feb 6, 2026)

United States v. Cooper, 127 F.4th 1092 (8th Cir. 2025)

~ Thomas L. Root

Guilty Pleas Are Solid and Eternal – Update for February 10, 2026

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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.

DIAMONDS AREN’T FOREVER – BUT PLEA AGREEMENTS ARE

When I was a kid, I learned in grade school that diamonds are formed by immense pressure over immense time, and that humanity would never be able to make diamonds because we couldn’t begin to duplicate nature’s processes.

It turns out that Mrs. McGinnis – my 6th grade teacher – was wrong. The diamond business is being upended because factories can now crank out the glistening lab-grown stones, making diamonds’ rarity commonplace and prices plummet.

So James Bond was wrong, too.  Diamonds are not forever.

Last week, however, two Circuits reminded us that plea deals and guilty pleas last longer and are more solid than any chunk of compressed carbon shining on your beloved’s finger.

Waivers Are Forever – Brandi Appleton pled guilty to drug distribution and a felon-in-possession charge. Her plea agreement included the usual waiver of her right to appeal the sentence. Although the Guidelines recommended 41 to 51 months given Brandi’s offense level and criminal history, the district court sentenced her to five years of probation due to her difficult childhood, drug addiction, and the fact that she would probably lose her parental rights if she was locked up. The court was impressed by Brandi having completed a residential drug treatment program and her employment history while on pretrial release.

But Brandi’s good fortune didn’t last. Six weeks into the probation, she was arrested for possession of personal use drugs. The court revoked her probation and gave her 44 months.

Brandi appealed the sentence, but last week, the 6th Circuit threw out the appeal because of her plea agreement waiver.

Brandi argued that the waiver no longer counted because the imprisonment was imposed only after a probation-revocation hearing. The 6th, however, ruled that “revocation sentences are part and parcel of the sentence underlying the original conviction, not a freestanding, unrelated sentence.” Brandi’s initial probation depended on compliance with the terms of supervision, so that her “subsequent term of imprisonment following the revocation of probation was a sentence for the same underlying offense addressed in [the] initial sentence. It follows that Appleton’s appeal waiver applies to the sentence imposed at her probation revocation hearing.”

Unlike diamonds, plea waivers are forever.

Answers Are Forever – Steve Boria took medications for sleeping problems and bipolar disorder the night before he pled guilty to a drug conspiracy and gun charge. During the plea hearing, the district court learned that Steve had taken these medications and asked several follow-up questions to confirm that he understood the proceedings and felt “clearheaded.” Steve decided to challenge his conviction and sentence on appeal despite an appeal waiver in his plea agreement, arguing that the district court violated F.R.Crim.P. 11 and his constitutional rights because it did not ask enough about the impact of his medications.

Last week, the 2nd Circuit disagreed. The judge asked what he had taken, when he had taken it, and whether he understood what was going on in court. Steve said he did. The Court said Steve’s “conduct during the plea hearing raised no red flags,” so the district court fulfilled its Rule 11 obligation to “explore on the record defendant’s ability to understand the nature and consequences of his decision to plead guilty” by confirming that Steve understood the proceedings and felt clearheaded.

Steve’s clear answers to the Judge’s clear questions were binding.

Steve’s additional problem was that his lawyer did not object at the time that the Court had not asked enough, so Steve had to show “plain error,” that is, an obvious mistake that raised a reasonable probability that Steve would not have pled guilty but for the alleged error. This is a great example of the reason for F.R.Crim.P. 52(b) “plain error.” If Steve’s lawyer had objected at the time, the judge probably would have postponed the plea hearing, thus solving the medication problem.

United States v. Appleton, Case No. 25-5051, 2026 U.S.App. LEXIS 3687 (6th Cir., February 5, 2026)

United States v. Boria, Case No. 24-1871, 2026 U.S.App. LEXIS 3472 (2d Cir. February 4, 2026)

~ Thomas L. Root

Martin is Pardon Attorney Short-Timer, CNN Reports – Update for February 9, 2026

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EDDIE, WE HARDLY KNEW YE

Edward Martin – the man who was too pro-Trump even for some Republican senators to serve as U.S. Attorney in the District of Columbia, being relegated instead to be Pardon Attorney and as Dept of Justice “weaponization” czar – has been quietly stripped of one title and is expected to step down as Pardon Attorney in the next few weeks.

The Wall Street Journal and other outlets reported last week that Martin has been stripped of his duties leading the so-called weaponization working group, formed early last year to take action against government employees deemed hostile to Trump or to conservative ideals.

Martin remains the Justice Department’s pardon attorney, where his duties included reviewing clemency applications and making recommendations to the president. Having once worked from an office department headquarters dubbed the “Freedom Suite,” he has relocated to the pardon attorney’s offices across town. Martin is expected to leave the department in coming weeks.

CNN reported that a DOJ review found that Martin improperly shared secret grand jury material in the investigation of the Senator Adam Schiff case, an investigation into an alleged (and dubious) mortgage fraud matter. CNN’s source said Martin initially falsely denied sharing grand jury material with unauthorized people, but emails soon surfaced showing that he had done so.

CNN said Martin “is expected to leave the department in the coming weeks, according to a source familiar with his plans.’

As Pardon Attorney, Martin prioritized clemency for people connected to the President and the MAGA movement, and people whose families have been major donors to the Trump campaign or projects. He proudly declared on the X formerly known as Twitter that his pardon policy was “No MAGA left behind.”

Martin’s signature clemency actions have been overwhelmingly partisan. Martin’s legal background included making a cottage industry of defending people charged with rioting and other offenses arising from the January 6th, 2001, march on the U.S. Capitol

Wall Street Journal, Trump Ally Ed Martin Loses Weaponization Czar Role (February 2, 2026)

CNN, Justice Department review found Trump ally Ed Martin improperly leaked grand jury material in probe of president’s foes (February 4, 2026)

CNN, Ed Martin: Trump’s one-time weaponization chief is expected to depart Justice Department in coming weeks (February 2, 2026)

~ Thomas L. Root

Where the Boys Aren’t – Update for February 6, 2026

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JUDGE BLOCKS BOP ON EXPOSING TWO WOMEN TO TRANS FEMALES

The Bureau of Prisons last week agreed to a permanent injunction keeping biological male inmates who identify as female separated from two female inmates at FMC Carswell, the BOP’s medical center for women in Ft. Worth, Texas.

Two named female plaintiffs sued the BOP last year, seeking an order that they would not have to “interact in private spaces with the male inmates housed at FMC Carswell. Those inmates include at least four sex offenders, a murderer, and a violent armed bank robber whose goal was to overthrow the United States government on behalf of the ‘Aryan Republican Army’,” according to the website Legal Insurrection.

The Order requires that as long as the two named plaintiffs are housed at  Carswell, the BOP is “permanently enjoined from permitting any male inmate to enter or remain in any privacy area (including showers, restrooms, changing areas, and dormitory spaces) to which either Plaintiff has access, such that Plaintiffs are not exposed to male inmates while showering, toileting, dressing or sleeping.”

Stipulated Order of Permanent Injunction (ECF 137), Fleming v. United States, Case No 4:25-cv-157 (NDTX, February 2, 2026)

Legal Insurrection, Texas Judge Issues Permanent Injunction in Case Keeping Males Away From Incarcerated Women (February 2, 2026)

~ Thomas L. Root

Medical Malpractice, Drunk Judges, Armed Dopers – Update for February 5, 2026

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ARE THESE SHORTS LEGAL?

Some legal case shorts from the last week:

(1)  BOP Pays Out on Inmate Death from Medical Malpractice –  George Thacker reported to FCI Edgefield camp for a 33-month sentence on December 9, 2022. On Christmas Day, he was so doubled over in pain that he could hardly walk. Instead of performing an exam or medical tests, health services staff gave him ibuprofen and sent him back to his unit.

George died the next day from complications due to a perforated duodenal ulcer and peptic ulcer disease. George’s daughter (who is executor of George’s estate) hired legal counsel and sued the BOP under the Federal Tort Claims Act, alleging medical malpractice.

Last week, George’s daughter and the US Attorney for South Carolina reached an agreement for the government to pay $750,000 to settle the claim. A petition was filed Tuesday seeking the court’s final approval on the settlement.

Motion to Approve Settlement and Legal Fees, Docket Entry 28, Wesolowski v. United States, Case No 6:25-cv-6675 (January 27, 2026)

Chattanooga Times Free Press, $750K settlement pending in former Rhea County executive’s 2022 death (January 29, 2026)

(2)     Will He Recommend RDAP for Himself? – U.S. District Judge Thomas Ludington (Eastern District of Michigan) goes to trial at the end of this month on a charge that he crashed a car while “super drunk” near his northern Michigan vacation home.

Last October, Judge Ludington, allegedly crashed his 2019 Cadillac CT6 into two traffic signs near Petoskey, disabling his Caddy and triggering at least one airbag.

He was charged on counts of operating a motor vehicle while intoxicated and operating with a high blood-alcohol content. The “super drunk charge” is punishable by up to 180 days in jail, a $700 fine, 360 hours of community service, and vehicle immobilization. In Michigan, a person is considered drunk with a blood-alcohol level hits 0.08. A person is considered super drunk when BAC hits 0.17. 

mLive, Federal Bay City judge charged in ‘super drunk’ crash in northern Michigan (January 27, 2026)

(3) 5th Circuit declares § 922(g)(1) unconstitutional as applied to defendant – Charles Hembree was convicted of being a felon in possession of a firearm in violation of 18 USC § 922(g)(1) because of a single prior felony conviction for simple possession of methamphetamine. On appeal, Chuck argued that § 922(g)(1) was unconstitutional as applied to his situation.

Last week, the 5th Circuit agreed that convicting Chuck of § 922(g)(1) violated the 2nd Amendment. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibiting from owning guns.

The 5th held that for possessing something prohibited to trigger prohibition on possessing a gun, the item had to be a weapon or something similar that harmed or could harm other people.

United States v. Hembree, Case No 24-60436, 2026 U.S.App. LEXIS 2051 (5th Cir. January 27, 2026)

 

~ Thomas L. Root

Shrinks Do A Runner And Other BOP Headaches – Update for February 3, 2026

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ROUGH WEEK FOR THE BOP

Last week began with The Marshall Project reporting that as of last spring, “just one in five federal prisons had a fully staffed psychology department… “[d]ozens of federal prisons nationwide had fewer than half the psychologists needed[and] at more than 10 prisons, there was one psychologist, or none.”

“Those are catastrophic numbers,” retired Bureau of Prisons psychologist Jill Roth, who served as national coordinator for the BOP’s prison rape elimination program until 2021, told TMP.  The report said that the BOP’s psychology program “used to be the envy of other correctional systems, according to psychologists who worked for the agency for decades. ‘BOP was a place psychologists were excited to work,’ Roth said. ‘It has changed.’”

TMP recounted that one BOP psychologist said he left a West Coast prison in May after he was the only staff psychologist for more than 700 people, saying that he feared that the care he could provide under those circumstances did not meet basic professional standards. “At some point it becomes unethical to continue to participate in that,” he was quoted as saying. “Can we provide this group of humans the care they’re entitled to? The answer is no. One person cannot ethically do that.”

The same day, the Dept of Justice Office of Inspector General issued its annual Top Management and Performance Challenges report to Congress, noting that the BOP “continues to face persistent challenges, most critically those presented by staffing shortages, deteriorating infrastructure, and the introduction of contraband. In recent years, deficiencies in the provision of healthcare to inmates and sexual abuse of inmates by BOP staff have emerged as additional significant challenges.”

Writing in Forbes, Walter Pavlo said, “Over the past two decades, the OIG has issued more than 100 reports documenting systemic problems at the BOP, and many of the same deficiencies appear year after year… Staffing shortages, deteriorating facilities, contraband, misconduct, and weak oversight have become familiar themes in the OIG’s annual Top Management and Performance Challenges reports. The latest report reiterates what oversight bodies have said repeatedly: the BOP’s problems are systemic, long-standing, and largely unresolved.”

The Government Accountability Office piled on the next day, reporting that for its study period of March through December 2024, the BOP has been failing in its First Step Act obligation to conduct needs assessments within required time frames, to use uniform methods to record when inmates decline to participate in a recommended program, and to keep program participation data. Most concerning, GAO found that as of the ends of 2024, the BOP had failed to apply all FSA credits to 70% of eligible inmates, and 54% of inmates received no prerelease custody credit for their earned FSA time.

GAO found that BOP generally applied all time credits toward supervised release but not for prerelease custody.

The report noted that BOP had implemented new planning tools in 2024 and 2025 to help staff anticipate upcoming transfers to prerelease custody and ensure incarcerated people receive their FSA time credits, and that GAO is currently examining BOP’s efforts to forecast capacity needs and provide sufficient halfway house and home confinement resources.

The Dept of Justice was required to issue annual FSA reports to Congress for five years after the Act passed. The last one was issued in June 2024. GAO recommended that Congress amend the law to require continued reports, because “without such information, Congress may be hindered in its decision making regarding the FSA.”

The Marshall Project, Amid ‘Catastrophic’ Shortage, Psychologists Flee Federal Prisons in Droves (January 26, 2026)

DOJ Inspector General, Top Management and Performance Challenges Facing the Department of Justice | 2025 (January 26, 2026) 

Forbes, The Bureau Of Prisons: When OIG Warnings Meet GAO Reality (January 28, 2026)

GAO, Federal Prisons: Improvements Needed to the System Used to Assess and Mitigate Incarcerated People’s Recidivism Risk, GAO-26-107268 (January 27, 2026)

~ Thomas L. Root

Retroactivity Lurks In USSC Proposed Amendments – Update for February 2, 2026

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SLEEPER

Back in 2024, the Sentencing Commission proposed a slate of four proposed Guidelines changes to be retroactive. However, at the USSC’s August 2024 meeting, the retroactivity for the four Guideline changes — covering acquitted conduct, gun enhancements, 18 USC § 922(g)/drug/18 § USC 924(c) joint convictions, and a beneficial change in the drug Guidelines — did not go forward because of philosophical differences in how to approach retroactivity.

US District Judge Carlton Reeves, chairman of the Commission, said, “Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today.”

Last year, the Commission considered whether 2025 changes in mitigating roles, drug offense, robbery and the definition of physical restraint should be made retroactive. Again, no decision was made.

Buried deep in the USSC’s 2026 request for public comment on proposed Guidelines amendments is a “sleeper” request for “public comment regarding whether, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), any proposed amendment published in this notice should be included… as an amendment that may be applied retroactively to previously sentenced defendants.” The Commission asks that public comment address all of the factors listed in USSG § 1B1.10: (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively to determine an amended guideline range under § 1B1.10(b). 

Public comment is due February 10, 2026.

Unfortunately, the request does not solicit public comment on the Commission’s underlying approach to retroactivity, and thus, the current proceeding is unlikely to resolve the retroactivity backlog any time soon.

Sentencing Guidelines for U.S. Courts, 90 FR 59660, 59661 (December 19, 2025)

Epstein Becker Green, Recalibrating Economic Crime Sentencing: The U.S. Sentencing Commission’s Proposed Reforms to Section 2B1.1 and What They Mean for the Defense Bar (January 29, 2026)

~ Thomas L. Root

USSC Proposes Refinements on ‘Career Offender’ – Update for January 30, 2026

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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.

SENTENCING COMMISSION FLOATS PROBATION, CAREER OFFENDER PROPOSALS

In a rare second round of proposals for amending the federal Sentencing Guidelines, the US Sentencing Commission today published three sets of options to perhaps add to the proposed amendments that will be sent to Congress on or before May 1st.

These proposals are in addition to several issued last month, and – if adopted – represent a substantial change toward judicial flexibility as well as a commonsense approach to what some think has become a tendency to label far too many defendants as “career offenders,” a designation that has a major inflationary effect on sentencing ranges.

Today’s proposals focus on substantially expanding the sentencing ranges that should be eligible for probation, home confinement, and “spilt sentences” (half in  prison, half on home confinement).  Currently, a defendant who has a sentencing range that starts at more than 12 months is presumptively doing it all in prison. More than six months takes probation off the table. The Commission proposes to dramatically increase the sentencing ranges for which judges may consider probation and split sentences, with the probation zone expanding to up to the 87-108 month stratum for people with no prior criminal history (and more modest expansions for those having criminal history).

More significant are proposed changes in the Guidelines that govern whether someone is considered a “career offender.” The Sentencing Reform Act of 1984 directs the Commission to ensure that “career offenders” receive sentences near the statutory maximum. The Commission’s definition of what constitutes a career offender, however, has caught many defendants in the net whose criminal histories do not suggest “career criminal” by any stretch of the imagination.

Under the current Guidelines, two minor state burglaries 14 years ago for which Donny Defendant served 60 days – with a spotless record since – would nevertheless qualify Donny as a career offender if he got convicted of buying a pound of pot to divide up and sell to friends.  His Guideline sentencing range – 8 to 14 months – would shoot up to 210-262 months because of those 14-year old state burglaries.

The long-awaited change in the “career offender” guidelines would abandon the current “categorical approach” to what prior convictions were crimes of violence or drug offenses, substituting instead a list of federal and state crimes that apply. Burglary would no longer apply, felonies of any kind for which the defendant served less than 90 days would not apply, and defendants would have a chance to show that some crimes of violence should not count because their conduct was completely nonviolent.

There are many options contained in the USSC’s latest proposal.  For instance, the Commission asks people to comment on whether the cutoff for not counting minor felonies should be a sentence of 30, 60 or 90 days.  The proposal also includes changes to address conflicts among federal circuits on aspects of the Guidelines and changes to

As with most USSC proposals, the document is lengthy, 56 pages of explanation and granular strikeouts and additions, as well as modifications to the human trafficking Guidelines “to provide enhanced penalties that better reflect the harms of certain human smuggling offenses.”

The proposals are out for public comment until March 18, 2026,

US Sentencing Commission, Public Hearing (January 30, 2026)

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 30, 2026)

~ Thomas L. Root