Musk Comes for BOP Employees – Update for March 4, 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 EMPLOYEES TAKE IT ON THE CHIN

About 23,000 Bureau of Prisons employees will lose up to 25% of their pay starting late this month as the agency tries to reduce costs, Government Executive magazine reported last week.

hiho250304Workers learned at meetings last Tuesday that the BOP was halving — and at seven prisons ending altogether — retention pay incentives, which are designed to keep employees at understaffed facilities. The incentive added an extra 10 to 25% of base pay to each paycheck. Employees at MDC Brooklyn have been getting 35% retention pay due to the appalling conditions at that facility.

The retention bonus cuts were announced chaotically, according to Forbes magazine, “coming from both union leadership and impromptu town halls where little was shared beyond the fact that the bonuses are ending.” One union official told Forbes that “during an annual training session, the complex warden entered the room and abruptly informed them that retention bonuses were gone.”

Elon Musk’s Department of Government Efficiency has picked the BOP as one of the latest targets in its aggressive cost-cutting measures across federal agencies, according to Forbes. During the pandemic, the BOP’s hiring crisis resulted in it being granted the right to pay retention bonuses to keep some prisons operational. Now, Forbes said, DOGE has axed those bonuses, leaving employees in limbo: “Following the director’s firing, many employees are questioning whether they’ll still have a job in the coming weeks.”

Speaking of that, Federal News Network reported last week that former BOP Director Collette Peters, who was fired by the Trump administration within hours of inauguration (a dismissal that was spun as a resignation), has hired a premier federal employment attorney to bring a wrongful dismissal suit on the ground that dismissal of someone in her position required a finding of wrongdoing. In firing Peters, the Administration merely cited the “changing priorities.”

yourefired250304“In response to budget constraints, the BOP has made the difficult decision to greatly reduce, and in some cases eliminate, retention incentives across the agency,” an agency spokesman said in a statement. “This decision was not made lightly, and we recognize the financial hardship this may cause for employees who rely on those incentives.”

What this means is that the staff shortage – that already leads to inadequate healthcare, lack of programs, and frequent lockdowns – is likely to worsen.

Government Executive, 23,000 federal prison workers are set to take pay cuts up to 25% next month (February 26, 2025)

Forbes, Bureau of Prisons to Cancel Staff Retention Bonuses (February 26, 2025)

Federal News Network, Federal firings: You couldn’t make this up (February 20, 2025)

– Thomas L. Root

Supreme Court Orders Rahimi ‘Re-Do’ on 11th Circuit Felon-In-Possession Cases – Update for March 3, 2025

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GVR FOR FIP

tea160404Reading the tea leaves on Supreme Court certiorari decisions would seem to be more the province of SCOTUS geeks, but two GVRs last week have set several gun law observers to speculating that the high court may be looking for a lower court decision that narrows the cases in which the federal ban on felons possessing guns is constitutional (or tees up the issue for the Supreme Court itself).

A ‘GVR’ is a Supreme Court order that simultaneously GRANTS certiorari, VACATES the lower court judgment, and REMANDS the case to the lower court to reconsider it in light of some recent decision. Last week the Supremes GVR’d two 11th Circuit cases, United States v. Rambo and United States v. Whitaker – both challenging whether 18 USC § 922(g)(1)’s felon-in-possession ban violated the 2nd Amendment as applied to the defendants – “for further consideration in light of United States v. Rahimi.”

In Rambo and Whitaker, the 11th held that Rahimi did not abrogate its prior decision that § 922(g)(1) was constitutional as applied to any felon because Rahimi “did not discuss § 922(g)(1) at all, nor did it undermine our previous interpretation of Heller.”

mulligan190430Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “[t]his would not be a big deal, except both Whitaker and Rambo were resolved by the 11th Circuit after the Supreme Court’s Rahimi ruling; the 11th Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a 2nd Amendment challenge to the federal felon-in-possession charge. As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine — or at least should or may be read as undermining — any and all pre-Rahimi precedents that categorically foreclose a 2nd Amendment challenge to broad felon-in-possession laws.”

In the gun law newsletter The Reload, Jake Fogleman noted that “[e]very other 2nd Amendment case sent back down to date has involved a decision that predated [Rahimi]… But the case[s] the justices just sent back [were] already decided in a post-Rahimi world.

Fogleman suggested that maybe SCOTUS just wanted the 11th to explain why it thought Rahimi was irrelevant to the Rambo and Whitaker challenges. However, he conceded that another way to interpret the two GVRs is “that the Court is telegraphing its preferred application of Rahimi to the question of gun rights for convicted felons.” After all, while Rahimi addressed banning guns for those subject to domestic violence restraining orders, the high court “may nevertheless view its focus on individualized judicial findings of dangerousness and temporary disarmament as incompatible with a lower court standard that provides blanket approval of lifetime disarmament for all types of felons.”

gun160711Fogleman admitted that his “interpretations rely on tea leaf reading, a potentially perilous endeavor for an institution as opaque as the Supreme Court. Only the justices themselves know what their actions genuinely entail. However, the unusual step of vacating and remanding a decision to be reconsidered in light of an already-cited case suggests something deeper could be at play.”

We are far from a Supreme Court holding that § 922(g)(1) violates the 2nd Amendment when applied to nonviolent felons, but last week’s GVR action suggests that the high court may get to the question next year.

Order List, Supreme Court, 604 U.S. — (February 24, 2025)

United States v. Rambo, Case No. 23-13772, 2024 U.S.App. LEXIS 18375 (11th Cir., July 25, 2024)

United States v. Whitaker, Case No 24-10693, 2024 U.S.App. LEXIS 20426 (11th Cir., August 14, 2024)

Sentencing Law and Policy, Latest SCOTUS order list full of intrigue while engaging 2nd, 4th and 6th Amendment (originalist?) jurisprudence (February 4, 2025)

The Reload, Analysis: What to Make of the Supreme Court’s Latest GVR (February 28, 2025)

– Thomas L. Root

Keeping Your Eye On The Prize – Update for February 28, 2025

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4TH CIRCUIT SAYS THAT IN A § 2244 INQUIRY, LEAVE THE PREJUDICE FOR LATER

In order to be allowed to file a second-or-successive 28 USC § 2255 habeas corpus motion, a prisoner has to meet some tough “gatekeeping” standards, that newly discovered evidence would have led a jury to find him or her innocent or that the Supreme Court had adopted a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.”

threaten250228In 2008, Scott Rendelman was convicted for mailing threatening communications under 18 USC § 876. The district court instructed the jury that the government need prove only that a “reasonable person” would find Scott’s communications threatening, and the jury did so. However, 15 years later, the Supreme Court held in Counterman v. Colorado that the 1st Amendment requires the government to prove that the defendant actually had some understanding of his statements’ threatening character.

Scott, who said his many letters to government officials were just intended to show that prison does not rehabilitate people, asked the 4th Circuit for authorization to file a successive 28 USC § 2255 motion based on Counterman. The government agreed that he had satisfied the gatekeeping requirements of § 2255(h), but it argued that the court should also impose a “plausibility requirement.”

In other words, the government said, even if Counterman had been applied, Scott would have lost his jury trial. The US Attorney called on the Circuit to require Scott to show that constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict, as required for relief under § 2255.”

eyesonprize250228The 4th refused the government’s demand. “The focus of our inquiry at this stage must always remain on the § 2255(h) gatekeeping standards,” the Circuit wrote. “We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping requirements. There isn’t an additional plausibility requirement he must meet… Counterman is on point. Rendelman was prosecuted for a true-threat offense. The jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he subjectively intended to threaten another, and the government acknowledges that this omission was error… Whether that error warrants relief under § 2255 is a merits question for the district court to decide in the first instance when it considers Rendelman’s § 2255 motion.

In re Rendelman, Case No. 23-257, 2025 U.S. App. LEXIS 4087 (4th Cir. February 21, 2025)

Counterman v. Colorado, 600 U.S. 66 (2023)

– Thomas L. Root

Is It ‘Tabula Rasa’ for J6ers? – Update for February 27, 2025

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DEPT OF JUSTICE READS JANUARY 6TH PARDONS EXPANSIVELY

In further evidence that this is not your parents’ Dept of Justice, the DOJ last week began arguing in several pending cases that Trump’s clemency for January 6th rioters covers unrelated crimes that were discovered during FBI searches stemming from the attack on the Capitol.

tabularasa250227Prosecutors moved to drop felon-in-possession charges against two former January 6th defendants, 18 USC § 922(g)(1) offenses that were based on guns found at the two men’s homes during the January 6th-related searches (although the guns themselves were not connected to the riot). The government argues that the gun offenses were covered by invoking Trump’s Day 1 executive order granting mass clemency to January 6th defendants because the searches that found the guns were “conduct related to” those events.

It works like this: Mike and Millie Maga were identified as being among the peaceful tourists who wandered around the Capitol on January 6, 2021, taking in the grandeur, chasing legislators, bear-spraying the gendarmes, and smearing their patriotic feces on the walls. A year or so later, jackbooted thugs from the FBI searched their home and found out that Mike – who had a couple of prior felonies on his record – had an AR-style rifle and a couple of Trump Glocks.

So Mike is quite properly charged with being a felon in possession of a gun under 18 USC §922(g)(1). Right?

“Not so fast,” the prosecutor says. President Trump’s “full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021…” includes a crime committed a year or so later, the government seems to be saying, as long as that later crime was only discovered because a search conducted for evidence of the January 6th offense.

Confusing? It was to U.S. District Judge Dabney L. Friedrich, a Trump appointee who sits on the U.S. District Court for the District of Columbia. Yesterday, she questioned DOJ attorney Jennifer Blackwell about the government’s shifting position on the application of Trump’s January 6th pardon.

movingtarget25027The judge expressed frustration with the government’s changing position on the pardon’s scope, appearing skeptical of the DOJ’s newly developed argument that the January 6th pardon applied to the gun charges. She suggested that pardons “have a fixed meaning” on the day they are issued, a “clear definition of the pardon” that doesn’t evolve or change.

“The intent cannot evolve over time as new cases are brought to [Trump’s] attention,” Friedrich said, meaning that the president can’t change the intent he when he issued the pardon as he subsequently learns of new charges about which he was unaware when he signed the clemency.

The expansive reading of the pardon marks the latest push by the Administration to absolve January 6th defendants, whom Trump has described as political prisoners and victims of persecution.

In another case, a North Carolina defendant has pled not guilty to child pornography charges stemming from images found in the search of his residence as part of the January 6th investigation. NPR observed that in that case, “it’s unclear how broadly the Trump administration will interpret the pardons.”

Politico, Justice Department broadens Trump’s Jan 6 clemency as it moves to drop gun cases (February 22, 2025)

NPR, Justice Department broadens Jan. 6 pardons to cover gun, drug-related charges (February 20, 2025)

NBC, Federal judge grills Trump’s Justice Department over argument that Jan. 6 pardon covers a separate gun case (February 26, 2025)

– Thomas L. Root

‘We’re Outta Here!’ BOP Leadership Says – Update for February 25, 2025

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BOP ACTING DIRECTOR LASTS FIVE WEEKS; OTHER TOP BRASS OPT FOR RETIREMENT

abandonship-bop250225Six of the Federal Bureau of Prisons top management – including Acting Director William W. Lothrop – have announced plans to retire in the past two weeks, the Washington Post reported last Sunday, “amid questions within the agency about its direction under President Donald Trump, according to the union representing BOP employees and internal communications…”

Two out of the BOP’s six regional directors, the general counsel, chief information officer and head of the oversight division, are also retiring between now and the end of July, according to a message Lothrop sent to BOP staff on February 14th announcing his departure at the end of February. This leaves 10 of the agency’s 21 senior management positions vacant.

shesgone250225Lothrop stepped into the director’s role on January 20th when Colette Peters left her post. At the time, the media reported she had resigned shortly before Trump was sworn in. However, last week, Walter Pavlo wrote in Forbes that Peters “was reportedly fired.” And on Sunday, the Washington Post reported that Peters’ lawyer said in a statement that she “was removed by Trump’s acting attorney general on Inauguration Day without due process. Peters is appealing the decision.”

Each of the six retiring officials has been with the agency for at least 25 years.

Pavlo wrote that the BOP is “currently experiencing significant upheaval, with a wave of leadership departures leaving the agency without clear direction during a critical time.” He quoted Lothrop as saying, “We are in unprecedented times as an Agency.”

Not that Lothrop did much in his five weeks at the helm. Pavlo complained that Lothrop’s “directives to the staff have lacked clear guidance and appear that he is simply passing on information as he received it from the Department of Justice. Whenever a new administration comes into office, agencies like the BOP are often in a reactionary position to enact changes demanded by new leadership but these changes and the pace of the changes are unprecedented.”

morale250225Trump’s offer of eight months’ severance to federal employees and the firing of probationary employees have reportedly worsened the understaffed BOP’s already bad employment situation. “It’s mass confusion, honestly,” Brandy Moore White, president of AFGE Council 33 (which represents BOP employees), told the Post. She said the top brass are in turmoil. “They are just very nervous that if they would fire a director on Day One, what protections do they have?” she said. “If they’re eligible for retirement, why wouldn’t they jump ship?”

Pam Bondi, Trump’s new attorney general, said in her confirmation hearing that fixing the BOP is one of her priorities. She told senators that the agency had “suffered from years of mismanagement, lack of funding and low morale,” and that corrections officials needed “more support.”

The morale fix appears not to be here yet.

Washington Post, At Federal Bureau of Prisons, senior retirements add to uncertainty (February 23, 2025)

Forbes, Bureau of Prisons Executives Announce Retirement Ahead of New Director (February 17, 2025)

– Thomas L. Root

‘Go Ask Alice – I Think She’ll Know’ – Update for February 24, 2025

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TRUMP NAMES FORMER PRISONER ALICE JOHNSON ‘PARDON CZAR’

President Trump announced last Thursday that Alice Johnson, whose 1996 life sentence for a cocaine conspiracy was commuted in 2018, would serve as White House “pardon czar,” a position in which she will “advise him on criminal justice issues,” according to the NY Times.

goaskalice250224No one knows exactly what this position entails or its significance but having a White House liaison responsible for clemency issues and who has the President’s ear is unprecedented in modern times. Still, many federal prisoners are starting to think that Jefferson Airplane had it right in “White Rabbit” when it advised, “Go ask Alice – I think she’ll know.”

After Kim Kardashian talked Trump into commuting Johnson’s sentence, Johnson initially convinced Trump to grant clemency to a couple of her FCI Aliceville cellies. Later, at Trump’s request, she suggested the names of people to receive clemency at the end of his first term.

The New York Times reported that in announcing her appointment, Trump said Johnson “would be advising him on cases of people convicted of nonviolent crimes who had gotten sentences not likely be handed down today. Ms. Johnson’s case was seen as an example of draconian sentencing laws that disproportionately affected nonviolent offenders, particularly women and members of minority groups.”

Trump told reporters that “Alice was in prison for doing something that today probably wouldn’t even be prosecuted.” That’s probably not quite correct: Her indictment, which named 16 defendants, described Alice as a leader in a multi-million-dollar cocaine ring, and detailed dozens of drug transactions and deliveries. At sentencing, her judge said she was “the quintessential entrepreneur” in an operation that dealt in 2,000 to 3,000 kilos of cocaine, with a “very significant” impact on the community.

second170119Still, Johnson’s post-sentencing record was exceptional, and her work since her release seven years ago has been tireless. “Alice Johnson has been a relentless advocate for second chances, and her own story is a testament to the power of redemption,” Weldon Angelos, another Trump clemency recipient and founder of the criminal justice organization The Weldon Project, told Marijuana Moment last week.

The Times said that Johnson’s appointment illustrates how Trump’s

approach to criminal justice reform is rife with contradictions. He signed the bipartisan First Step Act, which aimed to reduce prison sentences for certain nonviolent drug crimes, during his first term, then told advisers privately soon afterward that he regretted it, according to multiple officials working with him at the time… During his 2024 campaign, he called for shooting thieves who steal from drugstores and for the death penalty for drug traffickers and dealers. Then, in one of his first acts as president in his second term, he issued a grant of clemency to all of the nearly 1,600 people charged in connection with the attack on the Capitol on Jan. 6, 2021 — violent and nonviolent alike.”

Angelos, however, is focused on the appointment rather than the President’s record on criminal justice. “The creation of a pardon czar position is a significant step in prioritizing clemency and criminal justice reform,” he said, “signaling a commitment to addressing injustices in the system and ensuring that mercy is applied more fairly and efficiently.”

MSNBC complained, “It’s not clear that this position will have real power. Ultimately, the president determines who receives pardons, so it’s possible this role will have as much actual authority as Trump’s Diet Coke retriever. But it seems pretty obvious what he’s after with this stunt. Trump has perverted the pardon process, most glaringly with his pardons of violent insurrectionists who stormed the Capitol on Jan 6. And now he has made a sympathetic figure the face of that process.”

alicesrestaurant250224Prisoners and their loved ones are wondering how Johnson’s appointment might upend the current clemency system, which has been characterized over the past decade by Byzantine review procedures while thousands of petitions gathered dust in the DOJ Office of Pardon Attorney. Must a commutation petition still begin with a filing with OPA? Will clemency petitions now be routed directly to Johnson’s White House office?

No one knows. However, a Substack blogger on healthcare already has solicited people to contact Johnson to urge that a father and his sons convicted of selling toxic industrial bleach as a fake COVID-19 cure through their online church be pardoned.

New York Times, Trump Names ‘Pardon Czar’ to Advise on Clemency (February 21, 2025)

New York Times, Trump May Name a Woman He Once Pardoned to Be His ‘Pardon Czar’ (February 18, 2025)

Marijuana Moment, Trump Confirms He’s Appointing Former Drug Prisoner He Freed As New ‘Pardon Czar’ (February 20, 2025)

MSNBC, In ongoing stunt, Trump names Alice Johnson his ‘pardon czar’ (February 21, 2025)

Robert Yoho, Surviving Healthcare (Feb 22)

– Thomas L. Root

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 21, 2025

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THE NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root

A No-BS Zone About The President and The BOP – Update for February 20, 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.

GIVE ‘EM HELL, HARRY

Legend has it that President Harry Truman was giving a speech when an enthusiastic supporter shouted, “Give ‘em hell, Harry!” The President replied, “I don’t give them hell. I just tell the truth about them, and they think it’s hell.”

I got an email from a reader who said, “We appreciate your work on the news letters. but a LOT!!! of us are Trump fans. We don’t want to listen (read) liberal bs about our president.”

noBS190509No BS, no hell, just the facts:

President Trump’s new attorney general, Pam Bondi, issued as memo her first day in office outlining general policy regarding charging, plea negotiations, and sentencing for prosecutors. She directs that in federal criminal cases, prosecutors “should charge and pursue the most serious, readily provable offense. The most serious offenses are those punishable by death, or those with the most significant mandatory minimum sentences (including under the Armed Career Criminal Act and 21 USC § 851) and the most substantial recommendation under the Sentencing Guidelines.”

Last Friday, Bondi reversed a Biden administration decision, ordering the transfer of George Hanson, a federal inmate to Oklahoma so he can be executed, following through on Trump’s executive order to more actively support the death penalty.

death200623Bondi directed the Bureau of Prisons to transfer an inmate serving a life sentence at USP Pollock who is also under a state death sentence for a different crime. Oklahoma asked for the transfer several years ago, but the Biden Administration refused. Oklahoma wants the transfer to be done quickly so that it can kill him in its May execution cycle.

ABC reported on Friday that it obtained a memorandum of understanding between the BOP and Immigration and Customs Enforcement that despite chronic staffing shortages to manage its existing population, the Bureau will house ICE detainees at FDCs in Philadelphia, and at Atlanta, Leavenworth and Berlin FCIs.

KQED reported last Friday that ICE officials and BOP national and regional staff inspected FCI Dublin – a women’s prison that closed last April due to a staff-on-inmate sexual abuse scandal – to determine its availability to hold immigrant detainees.

privateprisons180131“With the contract that ICE and BOP have entered into and the needed bed space…and then their assessments — them coming to the facility and doing these assessments — my opinion would be the indication is absolutely there that this is potentially going to be converted to an ICE facility,” said John Kostelnik, western regional vice president for the AFGE Council of Prison Locals No. 33. “There’s a lot of unofficial notice from agency officials and others that are telling us that this is what is happening.”

I received reports from several people last week that the BOP has returned all non-citizens in halfway house or on home confinement pursuant to FSA credits to secure custody. The reports came from several different parts of the country and appear reliable, but they are not officially confirmed.

In a press release and earnings call last week, CoreCivic’s CEO told investors that the company – which has contracts to detain people for ICE in its private prisons, expects a massive increase in the number of people it will be holding. The company also expects growth from BOP contracts. Trump has allowed the BOP to again contract with private prison operators after Biden canceled BOP private prison contracts in 2021.

Finally, the BOP issued a press release confirming that because of Trump’s January 20 Executive Order directing agencies to remove content related to gender ideology from their publications — “some content on our public website (www.bop.gov) is temporarily unavailable as we work to fully implement the Executive Order.” For the last four weeks, the BOP’s extensive online library of program statements has been unavailable.

Attorney General, General Policy Regarding Charging, Plea Negotiations, and Sentencing (February 5, 2025)

Associated Press, Bondi orders federal inmate transferred to Oklahoma for execution (February 14, 2025)

ABC News, Males detained by ICE to be housed in federal prisons, new memo says (February 14, 2025)

BOP, Agency Complies with Executive Order (February 11, 2025)

KQED, ICE Weighs Turning FCI Dublin Into Detention Center, Union Leaders Say (February 14, 2025)

Arizona Republic, Private prison company CoreCivic anticipates ‘growth opportunities’ under Donald Trump (February 11, 2025)

– Thomas L. Root

St. Vincent Must Remain Unarmed, 10th Says – Update for February 18, 2025

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ADDING TO THE 922(g)(1) MAYHEM…

melyndavincent250218You may remember Melynda Vincent, a woman convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, Melynda cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – and a mental health counseling service, Life Changes Counseling.

She’s a poster child for rehabilitation. No, more than that, maybe for sainthood, someone who turned a horrific past and debilitating addiction into something that will benefit countless people (and make society safer).  A therapist who has ‘walked the walk’ the people she counsels are on right now.

In 2021, Melynda sued to be allowed to own a gun. No matter that she might be a saint. The 10th Circuit held that 18 USC § 922(g)(1)’s felon-in-possession prohibition on gun possession was constitutional as applied to her. After all, she was a felon and that was the end of the story.

At the time, Melynda took her argument to the Supreme Court. SCOTUS sat on her petition for certiorari (along with the government’s request that the high court review the 3d Circuit’s Range decision), and then finally GVR’d her, sending the case back to the 10th for reconsideration in light of United States v. Rahimi.

‘Hint, hint,’ SCOTUS seemed to be saying to the Circuit, ‘take a look at her ‘dangerousness’ before you rubber-stamp a denial based on pre-Rahimi law.

Last week, the 10th ignored the hint. It held that despite New York State Rifle & Pistol Assn v. Bruen and despite Rahimi, its 2009 decision in United States v. McCane that § 922(g)(1) was constitutional when applied to any felon in any situation was still good law. The Circuit relied “on the Supreme Court’s 2008 statement in District of Columbia v. Heller that it was not ‘cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons’” and Rahimi’s recognition of “the presumptive lawfulness of these longstanding prohibitions,” quoting Heller.

“Longstanding?” Prior to 1961, no federal law would have prohibited someone in Melynda’s situation from possessing guns. As the first Range opinion noted, “modern laws have no longstanding analogue in or national history and tradition of firearm regulation.”

The 10th noted that the 4th, the 8th and the 11th Circuits also “have held that Rahimi doesn’t abrogate their earlier precedents upholding the constitutionality of § 922(g)(1).”

stvincentB250218Melynda is as sympathetic a felon-in-possession petitioner as anyone could find, maybe even more so than Bryan Range (who, after all, had one ticket for fishing without a license ticket in the 25 years since his food stamp conviction). If § 922(g)(1)‘s felon-in-possession prohibition does not violate the 2nd Amendment as applied to St. Melynda Vincent, the “presumptive lawfulness of these longstanding prohibitions” must be an irrebutable one.

Expect Melynda’s request for Supreme Court review to drop onto the SCOTUS docket before Memorial Day.

Vincent v. Bondi, Case No 21-4121, 2025 USAppLEXIS 3179 (10th Cir. Feb 11, 2025)

– Thomas L. Root

Dangerousness (and More) and 922(g) Constitutionality – Update for February 14, 2025

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3RD CIRCUIT’S TROUBLING SUGGESTIONS ON 922(g)(1)

Following its en banc Range v Attorney General II decision– that the 18 USC 922(g)(1) felon-in-possession (F-I-P) statute violates the 2nd Amendment where it prohibits a person with a single disqualifying but nonviolent fraud conviction 25 years before from owning a gun – the 3d Circuit earlier this week remanded a similar case for the trial court to inquire into whether the petitioner had a history of dangerousness.

dice161221Restaurateur George Pitsilides’ hobby is high-stakes poker, an avocation that extended into sports betting and hosting illegal poker tournaments. He was convicted 25 years ago of placing sports bets with a Pennsylvania bookie – law-breaking that must seem quaint to anyone watching Eli and Peyton Manning on the Fanduel ad during the Superbowl – conduct that disqualifies him from gun possession under the F-I-P statute.

In 2019, he sued the government for the right to own a gun, arguing among other things that the F-I-P statute violated the 2nd Amendment as applied to his situation. While the case was on appeal, the Supreme Court handed down decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, cases “which effected a sea change in 2nd Amendment law,” as the 3rd Circuity put it, and required that a record be made of George’s “dangerousness.”

nickdanger220426The Circuit held that while Rahimi and Range II “did not purport to comprehensively define the metes and bounds of justifiable burdens on the 2nd Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misusing firearms… in other words, when he would likely pose a physical danger to others if armed.” The appellate court observed that

[a]s evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony…. [W]e agree with the 6th Circuit: Courts adjudicating as-applied challenges to 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament. As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of 922(g)(1) is constitutional under the 2nd Amendment… Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed.

The Circuit ruled that “while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others. That assessment necessarily requires individualized factual findings.”

So what is so troubling about this ruling? A couple of things. First, the Pitsilides court described the en banc Range II decision as turning on several factors, including having “lived an essentially law-abiding life since” the 25-year-old crime, had no history of violence, “had never knowingly violated 922(g)(1)’s prohibition while subject to it, posed no risk of danger to the public, and then filed a declaratory judgment action seeking authorization to bear arms prospectively.” The holding suggests that whether the F-I-P statute can constitutionally be applied to a defendant depends on him or her first seeking government permission (in the form of a declaratory ruling) before possessing a gun.

f**kdraft250214Imagine this standard being applied to free speech: A state law making the wearing clothing emblazoned with the phrase “f**ck the draft” a crime because of the exhibition of an obscene word would violate the 1st Amendment only if the wearer had not violated the unconstitutional statute to begin with and had won a judicial holding that the statute was unconstitutional before donning the offending shirt. (The shirt was the featured garb in Cohen v. California).

The second problem is with the squishiness of the term “dangerousness.” As Ohio State law professor Doug Berman aptly described the issue in his Sentencing Law and Policy blog earlier this week:

I have dozens of questions about how a “dangerousness” standard is to apply in the 2nd Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangerous, and were convicted of possibly dangerous crimes in their twenties, who thereafter mature and are no clearly longer dangerous years later. Do these folks have 2nd Amendment rights? More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have 2nd Amendment rights than men because they are, generally speaking, less dangerous? And, procedurally, who has burden on the issue of “dangerousness” in civil and criminal cases? I assume Pitsilides will have to prove by a preponderance that he is not dangerous in this civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC 922(g) criminal prosecution?

The F-I-P “as applied” 2nd Amendment battle is just warming up.

Pitsilides v. Barr, Case No. 21-3320, 2025 U.S. App. LEXIS 3007 (3d Cir. Feb. 10, 2025)

Sentencing Policy and Law, Third Circuit panel states “Second Amendment’s touchstone is dangerousness” when remanding rights claim by person with multiple gambling-related offenses (February 12, 2025)

– Thomas L. Root