A Short Rocket – Update for January 29, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, some short takes from last week…

ICYMI…

Money, That’s What I Want – Bipartisan bills have been introduced in the Senate and House (S.3626 and H.R.7033) to address what sponsors called “historic and persistent staffing shortages at federal prisons” by providing a 35% salary increase to Bureau of Prisons correctional staff nationwide.

Sponsors are Sen Jeanne Shaheen (D-NH) and David McCormick (R-PA) in the Senate and Reps Dan Goldman (D-NY) and Rob Bresnahan (R-PA) in the House.

S.3626, A bill to amend title 5, United States Code, to improve recruitment and retention of Federal correctional officers (January 13, 2026)

H.R.7033 – Federal Correctional Officer Paycheck Protection Act of 2026 (January 13, 2026)

FedWeek, Bills Proposed to Boost Bureau of Prisons Pay by 35% (January 20, 2026)

The Plot Thickens – Last week, I reported on a handful of clemencies issued to some fraudsters, some people with long-forgotten offenses, and a few drug defendants. One was a commutation granted to James Womack, whose 96-month meth distribution sentence was cut short after only a couple of years.

When I wrote the piece last week, Jim’s commutation didn’t seem to me to fit the “clemency for the rich and famous” theme coming from White House in the last year. But it turns out it does. Jimmy’s dad is Rep Steve Womack (R-AR), “a long-time Trump ally who was endorsed by the president during his most recent re-election campaign,” according to Daily Beast.

To make matters more complex, the White House said the commutation was in part due to Jim’s mother’s cancer diagnosis. Jim was released on Jan 15. His mother died three days later. While the circumstances are sad, federal prisoners losing parents, siblings and children while being imprisoned is all too common, while furloughs for final goodbyes and funerals – let alone commutations because of the loss – as rare as hen’s teeth.

Daily Beast, Trump Frees MAGA Rep’s Meth Dealer Son in Pardon Spree (January 17, 2026)

KATV, Terri Womack, wife of Arkansas Congressman Steve Womack, dies at 68 (January 20, 2026)


Justice Jackson Dissents IFP Denials – Last week, the Supreme Court denied Danny Howell, an Indiana state prisoner, leave to proceed in forma pauperis (IFP), holding that because “the petitioner has repeatedly abused this Court’s process,” he could not file any more petitions unless he prepaid the $300 filing fee. The decision is one of hundreds following the Court’s 1992 decision permitting such bans in Martin v DC Court of Appeals.

Martin was an abusive filer, submitting 54 IFP filings in 10 years. But Martin dissenters feared that what started as a rare step would turn out to be “merely the prelude” to a more habitual shutting of the courthouse doors.

Pointing out that Danny Howell had only filed six petitions over 14 years, Justice Jackson last week wrote that “[b]y my count, the Court has now invoked Martin hundreds of times to prospectively bar indigent litigants from filing in forma pauperis. We no longer wait for a petitioner to inundate the Court with frivolous filings. Instead, we reflexively ‘Martinize’ petitioners after only a few petitions… In my view, such a restriction foolishly trades a pound of values for an ounce of convenience… the Court now blocks indigent incarcerated individuals from ever more accessing our courthouse, just to avoid a minor administrative burden.”

Indiana ex rel. Howell v. Circuit Court, Case No 25-5557, 2026 U.S. LEXIS 495 (Jan 20, 2026)

Martin v. District of Columbia Court of Appeals, 506 U.S. 1 (1992) (per curiam).

~ Thomas L. Root

USSC May Be Looking At More Proposed Amendments – Update for January 27, 2026

Leave a comment

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 MAY ADD MORE PROPOSED GUIDELINE CHANGES THIS WEEK

Last month, the US Sentencing Commission announced a slate of Guideline changes it may want to pose to Congress on May 1. The announcement came almost a month earlier than its customary January rollout of proposed amendments.

Last week, the USSC announced a meeting this coming Friday (January 30, 2026) with an agenda that includes “possible vote to publish proposed guideline amendments.”

A second round of possible amendments is unprecedented in my memory (which stretches back nearly to the dawn of the Commission 37 years ago). Writing in Sentencing Law and Policy, Ohio State University law professor Douglas Berman expressed a theory for the surprise announcement: “I am not at all sure what to expect from the next set of proposed amendments from the Commission. But I am pretty sure that all the proposed guideline amendment activity this cycle is prompted, at least in part, by the real possibility that the USSC could lose its quorum at the end of 2026 and may not be able to make guideline amendments for perhaps some time after this amendment cycle. Interesting times.”

USSC, Public Notice of January 30, 2026, Meeting

Sentencing Law and Policy, US Sentencing Commission notices public meeting for publishing more proposed guideline amendments (January 22, 2026)

~ Thomas L. Root

SCOTUS Holds Restitution Is Criminal Sanction – Update for January 26, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CAPTAIN OBVIOUS SAYS RESTITUTION IS CRIMINAL PUNISHMENT

The ruling was short, simple, unanimous, and transpicuous to any federal defendant: last week, the Supreme Court ruled that restitution is a criminal penalty and not just some random civil judgment.

Thirty years ago, Holsey Ellingburg, Jr. robbed a Georgia bank with a sawed-off shotgun. He was convicted after a jury trial of 18 USC § 2113(a) and robbery and 18 USC § 924(c) using a firearm during a crime of violence.

Holsey served about 27 years in prison. By the time he got out in 2022, he had paid about $2,200 toward his $7,600 restitution obligation for the money he stole. His probation officer demanded that Holsey keep paying after his release. Holsey argued he didn’t have to.

Holsey’s restitution obligation arose under the Victim and Witness Protection Act of 1982. The VWPA only let courts collect restitution for 20 years after the judgment was entered, meaning that Holsey’s restitution obligation ended in about 2016. But sometime after Hosley’s robbery, Congress passed the Mandatory Victims Restitution Act. The MVRA extended a defendant’s obligation to pay restitution to “20 years after release from imprisonment.”

Holsey argued that the Constitution’s Ex Post Facto Clause of Article I, Section 9 of the Constitution applies to restitution orders. The Ex Post Facto Clause prohibits applying a new law that retrospectively criminalizes actions that were legal when committed or changes the punishment prescribed for a crime. The Government said restitution is not a criminal penalty but rather just a civil judgment to make a victim whole, so the MVRA could be applied to Holsey’s restitution obligation, even though it arose before the MVRA passed.

Last week, the Supreme Court disposed of the Government’s claim in a short 9-0 decision. Justice Kavanaugh wrote that “[r]estitution under the MVRA is plainly criminal punishment… Whether a law violates the Ex Post Facto Clause requires evaluating whether the law imposes a criminal or penal sanction as opposed to a civil remedy… When viewed as a whole, the MVRA makes abundantly clear that restitution is criminal punishment. The MVRA labels restitution as a “penalty” for a criminal “offense… Only a criminal defendant convicted of a qualifying crime may be ordered to pay restitution. Restitution is imposed at sentencing for that offense together with other criminal punishments such as imprisonment and fines. And at the sentencing proceeding where restitution is imposed, the Government, not the victim, is the party adverse to the defendant.”

Writing in the Sentencing Matters Substack on Ellingburg last fall, law professor Lula Hagos observed that

[c]riminal restitution — the money paid by a defendant to a victim — has grown into one of the most troubling, yet least examined, features of modern criminal sentencing… Restitution has quietly grown — both in scope and severity — into a sanction that can extend punishment for years, frequently without compensating victims… The Court will not be able to solve all criminal restitution’s woes in Ellingburg. But it should take the crucial step of acknowledging that criminal restitution is punishment subject to the Ex Post Facto Clause. Acknowledging restitution’s punitive nature would bring coherence to constitutional doctrine and prevent the government from imposing punishment without its safeguards…

As it is now, many Circuits hold that restitution cannot be challenged in a § 2255 motion because it is not a criminal sanction. Restitution is often imposed after the sentencing hearing in proceedings where the defendant is not present. The proofs needed to establish restitution are often quite thin. Ellingburg has the potential to change much of that.

 

Ellingburg v. United States, Case No 24-482, 2026 U.S. LEXIS 504 (January 20, 2026)

Substack, Punishment by Another Name (October 13, 2025)

~ Thomas L. Root

Ho-hum SCOTUS Civil Procedure Decision Strikes Blow for “Majestic Equality” – Update for January 23, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NOW SERVING: ‘BERK CHOY’ IN ERIE SAUCE

Jacques Anatole Francois Thibault wrote in Le Lys Rouge (what I otherwise thought was a dreadful novel when I was forced to read it as a callow youth) that

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Like their noncustodial brethren, Federal prisoners who suffer from ham-handed medical care while in Bureau of Prisons custody have always been able to sue for medical malpractice. They must do so through the Federal Tort Claims Act (FTCA), which provides a legal framework for suing the United States in what otherwise is a plain-vanilla state law med-mal suit.

Most states have adopted in one form or another (by statute or in rules of civil proceeding) a requirement that a med-mal complaint must be supported by an “affidavit of merit,” a statement under oath by a medical expert that attests to the merit of the claim. The reason for such a requirement is to winnow out nonsensical malpractice claims early on to decrease the burden on the courts and the inconvenience to defendants and the insurance companies who defend them.

Sounds like a great idea! What could possibly go wrong?

Just this: Hiring a medical expert (almost always a licensed physician who also works as an expert witness) to review a med-mal complaint requires an upfront outlay of somewhere north of $5,000 to get the medical file read and the affidavit signed. Especially given the unforgiving statute of limitations binding FTCA plaintiffs (six months from denial of the administrative claim to filing the suit), these state “affidavit of merit” requirements shut down med-mal remedies for all but the wealthiest inmate filers.

The rich have to hire experts out of their pocket change if they want to bring an FTCA action. Seems only fair that the impoverished be required to do so as well. Ah, the law’s “majestic equality.”

Normally, a med-mal victim finds a lawyer (usually one who advertises on late-night TV) to take the case and front costs such as the expert’s fee. But prisoners do not, because their medical costs have been paid by the governments and juries don’t care much that prisoners – whose living costs are already being paid by the government – suffered some pain and inconvenience because of medical lunacy. Generally speaking, if a plaintiff’s lawyer cannot see $250,000 or more in likely damages, he won’t take the case no matter what his freeway billboard might say.

Add to that the fact that the government already has a stable of lawyers, so legal costs are not a factor in figuring out whether to settle, and the inmate has a case that attracting a lawyer to take it on for a percentage is a very tall order.

Over the years, I have worked on any number of unsuccessful arguments to district courts and courts of appeal that state laws and rules mandating “affidavits of merit” do not bind federal courts. Back in the day, when I was studying law by candlelight, we 1Ls pored over Erie Railroad Co. v. Tompkins, a civil procedure classic in which the Supreme Court ruled that in a civil case brought in federal court (where no federal statute applied), courts were to apply federal rules of procedure but state common law. Erie is a little more complex than that, but you get the gist: a med-mal plaintiff must use state med-mal law in proving that the doctor screwed up, but the rules governing how to proceed – from everything from what motions may be brought, how discovery is conducted, and how the defendant gets served – depends on the Federal Rules of Civil Procedure.

Harold Berk sued Dr. Wilson Choy in federal court for medical malpractice under Delaware state law. Section 6853 of Title 18, Delaware Code, required Harry to accompany his complaint with an affidavit of merit “signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.”  Harry claimed that Erie made § 6853 unenforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. He lost in the district court and 3rd Circuit.

This week, however, the Supreme Court handed Harry a 9-0 win, turning Delaware’s statute into chopped ‘Berk Choy.”

The Court found the analysis to be simple. If a Federal rule governs a question arising in a civil action, it applies unless it exceeds statutory authorization or Congress’s rulemaking power. Here, the Court ruled, FRCivP 8 answers the question:  Rule 8 prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation: “a short and plain statement of the claim showing that [he] is entitled to relief.” By requiring no more than a statement of the claim, the Court held, Rule 8 establishes “implicitly, but with unmistakable clarity that evidence of the claim is not required.”

Rule 12 reinforces the point, Justice Amy Coney Barrett wrote for the Court: “By providing only one ground for dismissal based on the merits — ‘failure to state a claim upon which relief can be granted,’ Rule 12(b)(6) — and prohibiting courts from considering “matters outside the pleadings” when evaluating whether a plaintiff has stated a claim,” the federal procedural rules ask only whether the complaint’s factual allegations, if taken as true, “state a claim to relief that is plausible on its face.”

Justice Barrett observed that the Supreme Court “has consistently rejected efforts by lower federal courts to require more information than Rule 8 requires. Delaware’s law and Rule 8 thus give different answers to the question whether Berk’s complaint can be dismissed as insufficient because it was unaccompanied by an affidavit.”

For federal prisoners and even impecunious pro se filers, this ruling is significant. They may still face a mountain to climb in proving their case, but at least they’ve crossed the foothills by getting on file without paying an enormous upfront cost.

Writing in SCOTUSBlog, Ronald Mann said that Berk v. Choy

is interesting in its own way because it draws on a vision of the federal rules that goes far beyond the text. Barrett easily could have written an opinion saying there is no direct conflict between the rules and Delaware law. In truth, the conflict is between Delaware law and the grand conception of what the federal rules are designed to accomplish: a system where the courthouse doors are wide open upon a simple statement of a claim. For its paean to that system, I suspect this opinion will be widely noted.

Berk v. Choy, Case No. 24-440, 2026 US LEXIS 497 (January 20, 2026)

Erie Railroad. Co. v. Tompkins, 304 US 64 (1938)

SCOTUSBlog.com, Justices reject state limits on malpractice actions for cases in federal court (January 21, 2026)

~ Thomas L. Root

‘Fortunate Sons’ and Clemency In The Trump Era – Update for January 22, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP PARDONS 13, COMMUTES 8

For those who think that the old can be new again, recall Creedance Clearwater Revival’s 1969 protest song, Fortunate Son, and lay those lyrics next to President Donald Trump’s clemencies granted last week to 13 people (pardons) and 8 people (sentence commutations).

The pardons included five people who had served their sentences years ago, one woman whom Trump had pardoned five years ago for a fraud who was now indicted for a new fraud, and three currently facing a political bribery scandal in Puerto Rico.

The commutations included one mortgage fraud defendant serving 62 months and seven drug cases, two of whom were serving life sentences and four others serving 20 years or more.

One of the commutations went to James Phillip Womack — son of Arkansas Republican Congressman Steve Womack — who was sentenced in May of last year to eight years behind bars after being convicted of methamphetamine distribution.

The clemencies garnering the most reporting were pardons of Puerto Rico’s former governor, Wanda Vázquez Garced, who pled guilty last year in a federal public corruption case, and her two co-defendants, her aide Mark Rossini and billionaire Venezuelan-Italian banker Julio Martin Herrera Velutini.

Herrera Velutini’s daughter, Isabel Herrera, donated $2.5 million in December 2024 and $1 million last July to the pro-Trump political action committee MAGA Inc., according to public records. A White House official told CBS News that the donations had nothing to do with the pardon.

In a related story, the Washington Post reported yesterday that the pardoned January 6th defendants are demanding return of restitution payments paid as part of their criminal sentences. A judge ruling on a demand of one of them, Yvonne St. Cyr (who served half of her 30-month sentence before being pardoned), said in an order returning her $2,270.00), “Sometimes a judge is called upon to do what the law requires, even if it may seem at odds with what justice or one’s initial instincts might warrant. This is one such occasion.”

The Post said, “The ruling revealed an overlooked consequence of Trump’s pardon for some Jan. 6 offenders: Not only did it free them from prison but it emboldened them to demand payback from the government. At least eight Jan. 6 defendants are pursuing refunds of the financial penalties paid as part of their sentences, according to a Post review of court records… Others are filing civil lawsuits against the government seeking millions of dollars, alleging politically tainted prosecutions and violations of their constitutional rights. Hundreds more have filed claims accusing the Justice Department, the FBI and other law enforcement agencies of inflicting property damage and personal injuries, according to their lawyer.”

Washington Monthly observed last week that

It is safe to say that Trump’s abuse of the pardon power has no parallel in American history. Almost every president has granted a few that seem dodgy in retrospect; many have used them as an instrument of partisan politics; a few have used them as instruments of corruption. But in extent and scale, Trump’s pardons fall well below the subterranean ethical floor established even over the past 50 years. In pardoning 1,500 rioters convicted of involvement in the January 6 insurrection, Trump showed contempt for the law enforcement officers who protected the Capitol, and the system of government they preserved. His other pardons, from crypto fraudsters to foreign drug lords, reek with contempt for the very idea of law. Trump is also the first president to claim the power to undo a predecessor’s pardons, and the first to claim the power to pardon an offender convicted by a state, not the federal government. 

DOJ, Pardon and Commutations (January 15, 2026)

CBS, Trump Pardons Puerto Rico’s former governor Wanda Vázquez (January 16, 2026)

KATV, Trump commutes prison sentence of congressman’s son convicted in federal drug case (January 17, 2026)

Washington Post, They ransacked the U.S. Capitol and want the government to pay them back (January 20, 2026)

Washington Monthly, Amnesty Transactional (January 14, 2026)

~ Thomas L. Root

4th Circuit Restricts FSA Credit Eligibility – Update for January 20, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

4TH CIRCUIT HANDS DOWN TROUBLING FSA CREDIT DECISION

From the 4th Circuit last week came the first appellate decision on First Step Act credit eligibility, a 2-1 decision that is as dangerous as it is superficial.

William White is locked up until 2037, but he was actively earning FSA credits at a West Coast Bureau of Prisons facility. When he was transferred to a facility on the East Coast, Bill spent a few days in transit at FTC Oklahoma City. After arriving at his destination joint, he found that he had been denied three days of programming credit while he was at the FTC because he was in transfer status. He filed a 28 USC § 2241 petition for habeas corpus, arguing that he had been denied due process by having his incarceration unlawfully extended.

The district court denied Bill’s petition, ruling that denial of FSA time credits for the three-day transit period was consistent with the BOP’s regulations and policy statement. The district court explained that an eligible prisoner in transit (such as Bill) generally “are not ‘successfully participating’ in [recidivism reduction programs] and accordingly they are not able to accrue [FSA time credits].” Bill appealed.

Last week, the 4th Circuit upheld the District Court’s denial of Bill’s petition . The appeals court held that

[t]he FSA provides that “[a] prisoner… who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” based on time participating in such programming.  Because White does not claim that he participated in such programming or activities during the three days he was in transit, he cannot claim that he “earned” FSA time credits… Moreover, White’s argument that the BOP should have offered him such programming during his transfer so that he could have earned the FSA time credits cannot, even if successful, lead to a ruling awarding him such credits because he still would not have shown that he had earned them by actually participating in the programming, as required by the FSA.

The opinion is concerning for a reason that goes well beyond the lost three days. Bill contended that he should have gotten the credit because he had “opted” into FSA programming but was not actually participated in a program at that time. The BOP bases the award of FSA time credits on a prisoner’s “earning status” – that is, his or her willingness to participate in programming even if the programming has a waiting list or is just plain unavailable. The 4th expressed skepticism that this program was consistent with the First Step Act. The Circuit observed:

Although the BOP’s program statements and practice about this approach are neither clear nor consistent, we conclude that if they reflect that the BOP awards credits for non-participation, that practice goes beyond the text of the FSA and its regulations. But more importantly, the BOP’s decision to award credits absent actual participation does not expand its statutory obligations under the FSA. The law remains clear that a prisoner’s statutory right to FSA time credits is tied to his actual participation in qualified programming. And in the absence of evidence that White participated in programming during his three-day stay at the Transfer Center, the BOP did not have a statutory obligation to award him FSA time credits for those days.

Beyond that, the 4th concluded that the FSA time credit program does not create a protected liberty interest for prisoners, an interest which must exist in order for a prisoner to successfully maintain a § 2241 habeas corpus. The Circuit ruled that “because the text of the FSA does not create a statutory entitlement for a prisoner to earn FSA time credits, we conclude that White did not have a constitutionally protected liberty interest in earning them, and the BOP therefore did not violate his rights under the Due Process Clause in denying them to him.”

In a detailed and biting dissent, Judge Robert King complained that “under the majority’s decision, the BOP is excused, without clear limitations, from providing programming to prisoners every day; the BOP can award FSA time credits to some prisoners based on their mere “earning status,” but require actual participation of others; prisoners who claim a wrongful denial of programming can seek only future programming; and no back credits can be awarded unless a prisoner can come up with evidence of actual participation, something that, on this record, the BOP itself does not track. As such, the majority does not just flout the plain text of the FSA and the BOP’s policies and practices. Its decision also threatens chaos, unequal treatment, and other unfairness in the FSA time credit system.”

White v. Warden, Case No. 23-7116, 2026 U.S. App. LEXIS 793 (4th Cir. January 13, 2026)

~ Thomas L. Root

5th Circuit Knows Improper Delegation of Authority to Probation Officer When It Sees It – Update for January 16, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

5th CIRCUIT SAYS IMPROPER DELEGATION OF COURT’S AUTHORITY “DEPENDS”

About 15 years ago, Brent Dubois got 151 months in federal prison for a drug trafficking offense. When he was released, he began a three-year term of supervised release, one condition of which was that he participate in a substance abuse program. The court authorized Brent’s probation officer to decide whether the program would be inpatient or outpatient.

The PO put him in an outpatient substance abuse program, but Brent turned out to be less than a model student. Almost immediately, he had difficulty staying enrolled, leading to several supervised release revocation petitions and different substance abuse programs.

The court tried in vain to adjust his conditions to foster success. When Brent’s probation officer filed a fourth petition for revocation in late 2024, Brent admitted that he had quit his latest substance abuse program and was using methamphetamine. The district court reluctantly sentenced him to ten months in prison followed by 32 months of supervised release, and again ordered that he “participate in a program (inpatient and/or outpatient) approved by the probation office for treatment of narcotic or drug or alcohol dependency…”

On appeal, Brent complained that allowing the probation officer to decide whether his substance abuse program should be inpatient or outpatient was an impermissible delegation of the court’s sentencing authority that violated Brent’s rights.

Last Monday, the 5th Circuit agreed.

A district court must always have “the final say on whether to impose a condition,” the Circuit ruled. While a “probation officer’s authority extends to the modality, intensity, and duration of a treatment condition, it ends when the condition involves a significant deprivation of liberty.” Confinement in an inpatient program implicates “significant liberty interests,” the 5th held, meaning that “the decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers.”

But there are exceptions. When the prison sentence is short, a sentencing court, with “relative clarity because supervision is to commence relatively soon,” can forecast which kind of treatment – inpatient or outpatient – will better suit a defendant.” While “the precise line dividing permissible and impermissible delegations may be unclear, our opinions conclusively establish (1) ten months is sufficient to show an impermissible delegation and (2) ten years is insufficient to make the same showing.”

Here, Brent’s revocation sentence was only ten months, “a sufficiently short sentence to demonstrate an impermissible delegation.” The Circuit set aside the delegation of authority to the probation officer.

Despite its self-congratulatory claim to having done so, the Circuit strained to harmonize two inconsistent Circuit precedents (Martinez and Medel-Guadalupe, issued the same day). One declared a delegation to decide substance abuse program decisions to the probation office was permissible and the other decided it was not.

The takeaway is that the 5th believes that a deprivation of liberty on supervised release without involvement of the sentencing court isn’t as much of a big deal when the defendant has been in prison for a long time first. The dividing line of what is too short a sentence and too long a sentence isn’t clear, but – like Justice Potter Stewart’s famous explanation of what is obscenity – the sentencing judge is expected to be able to say I “know it when I see it.”

The Supreme Court’s repeated emphasis that supervised release is not punishment but rather an aid to the defendant’s reintegration into the community should make deprivations of liberty on supervised release a bigger deal rather than a lesser one.  Just two months ago, Justice Jackson asked during an oral argument (at page 4) whether

isn’t the whole — the reason why supervised release is sort of fundamentally different than parole or — or probation or imprisonment is because it’s not imposed for punishment. It’s supposed to be about helping this person reintegrate into society…

That suggests that the standard adopted by the 5th Circuit – that is, ‘it depends on how long you’ve been locked up’ – is not very defensible.

United States v. Dubois, Case No. 24-11046, 2026 U.S. App. LEXIS 831 (5th Cir. Jan. 13, 2026)

Rico v. United States, Case No. 24-1056, Oral Argument Transcript

United States v. Martinez, 987 F.3d 432 (5th Cir. 2021)

United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. 2021)

Jacobellis v. Ohio, 378 U.S. 184 (1964)

~ Thomas L. Root

Supreme Court Separates 924(c) and (j) – Update for January 15, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ONE TO A CUSTOMER

Cigarettes are bad for you, whether you’re smoking them or stealing them. Dwayne Barrett found that out too late. But his campaign to stamp out smoking by robbing vendors of their tobacco products led to a Supreme Court decision yesterday on the reach of the federal criminal code’s harsh and unforgiving gun penalty statute.Dwayne and his gang – unimaginatively just called the “Crew” – committed a series of at least eight robberies in New York, New Jersey and Pennsylvania between August 2011 and January 2012. Their niche was knocking over convenience stores and illegal cigarette vendors, guys who sell untaxed cowboy killers smuggled from southern states at a discount because the merch is untaxed. Such people made good marks for Dwayne and his Crew because the victims can hardly file police reports.

But it’s hard to hide a heist from the authorities when someone gets killed. During one robbery, Dwayne and two other Crew members stuck up three guys selling untaxed cigarettes out of the back of a minivan. Brandishing guns, two of the Crew hijacked the minivan and drove off with one of the victims, Gamar Dafalla, still aboard. Mr. Dafalla surreptitiously threw $10,000 in sales proceeds out of the moving vehicle. Enraged by this, the Crew member shot Mr. Dafalla to death.

Dwayne was following the van in a car, so he wasn’t present when the killing occurred, but he was charged with the robbery, with tried to prevent his merchandise from being stolen.

Dwayne was convicted of Hobbs Act robbery and conspiracy, as well as several 18 USC § 924(c) counts for using guns to commit the robberies (crimes of violence under § 924(c)). In the case of the death of Mr. Dafalla, Dwayne was convicted of both a § 924(c) count – because his co-conspirator was using and carrying a gun during the robbery – and an 18 USC § 924(j) offense (because death resulted from the § 924(c) conduct). Thus, he was convicted under both statutes for the same act, essentially treating the gun use that caused Mr. Dafalla’s death as a basis for two separate convictions.

Dwayne was sentenced to 90 years in prison, later reduced to 50 years. Twenty of those years came from concurrent sentences on three Hobbs Act robbery counts. Twenty-five years came from a consecutive term on the § 924(j) conviction, into which the District Court – believing that § 924(c) and § 924(j) were not separate offenses that could be punished cumulatively – merged into the § 924(c) conviction.

The Second Circuit, however, rejected the District Court’s position that the Double Jeopardy Clause required it to treat § 924(c) and § 924(j) as the same offense. Although the Government regularly concedes that § 924(c) and § 924(j) overlap and may not be punished cumulatively and qualify as the same offense under the governing test laid out in Blockburger v. United States, it convinced the Circuit that the two provisions “are separate offenses for which Congress has clearly authorized cumulative punishments.”

The 5th Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In the 1932 Blockburger decision, the Supreme Court directed reviewing courts to evaluate whether one criminal statute required proof of any element that another did not.  If no different proof was needed, double jeopardy barred additional prosecution and punishment.

While Congress may pass two different statutes directed at prohibiting the same offense, the Blockburger presumption holds that Congress ordinarily does not intend to do so. This means that courts must find evidence of Congress’s intent before finding that different statutes punish the same crime, and thus that a defendant cannot be charged or punished for violating both under Blockburger.

Yesterday, the Supreme Court sided with Dwayne and the District Court, applying the Blockburger presumption that Congress did not clearly authorize convictions under both §§ 924(c) and (j) for a single act that violates both provisions. In other words, one conviction and one sentence for one violation. One to a customer.

Blockburger addresses whether multiple convictions, not just multiple sentences, are allowed by the 5th Amendment. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes, where punishment means a criminal conviction and not simply the imposition of sentence.

When enacted, § 924(c) made it a discrete offense to use or carry a firearm in connection with a predicate federal crime of violence or drug trafficking crime. Congress later added § 924(j) to provide a different penalty scheme for § 924(c) violations that cause death. Section 924(j) has no mandatory minimums, the Supreme Court observed, but instead authorized significant maximum sentences – including the death penalty or life in prison – when the underlying violation is murder committed with a gun.

In a unanimous opinion (but for a partial concurrence by Justice Neil Gorsuch, Justice Ketanji Brown Jackson wrote that § 924’s text “suggests strongly, perhaps conclusively,” that Congress did not disavow Blockburger here. Congress included Blockburger-surmounting language twice within § 924(c) itself: It mandated that a § 924(c)(1) conviction must be “in addition to the punishment provided for” the underlying violent or drug crime and it also mandated that a conviction under § 924(c)(5)—for using or carrying armor piercing ammunition—must be “in addition to the punishment provided for” the conviction under” § 924(c)(1).

Such “in addition to” language has previously been found to be “crystal clear” evidence of a legislature’s intent to overcome Blockburger. But Congress used no similar language with respect to the interplay between subsection (c)(1) and subsection (j).

Dwayne’s case could have implications for future convictions across the country.

Gorsuch argued in his concurrence that the Court has been confusing about double jeopardy in the past. The Supreme Court has at times said the clause “protects against multiple punishments for the same offense,” he wrote, and has held that multiple convictions for the same offense constitute multiple punishments, even when secured in a single proceeding. “From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately,” Gorsuch wrote.

He said the court will someday need to resolve that “tension.”

Barrett v. United States, Case No. 24-5774, 2026 U.S. LEXIS 433 (January 14, 2026)

Blockburger v. United States, 284 U.S. 299 (1932)

The National News Desk, Supreme Court limits dual charges in overlapping gun statutes (January 14, 2026)

~ Thomas L. Root

Inspector General Faults BOP Treatment of Dying Inmate – Update for January 13, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

REST IN PEACE, FRED BARDELL

Do you remember Frederick Bardell?

You should not forget him.

Mr. Bardell was a BOP prisoner whose medical and release mistreatment by the Federal Bureau of Prisons were acts, as described by U.S. District Court Judge Roy Dalton (Middle District of Florida) in an October 2022 Order,  “indifferent to… human dignity.”

Fred was housed at FCI Seagoville when he developed an intestinal mass that turned into metastatic colon cancer. Although a BOP medical expert determined that Fred “ha[d] a high likelihood” of having colon cancer “with likely metastasis to the liver,” the BOP did nothing.

An outside specialist said later that if Fred had gotten prompt treatment when the mass was first found, he would have had a 71% chance of recovery. But prompt treatment is simply not how BOP healthcare rolls.

As LISA reported at the time, Fred’s first compassionate release motion (filed under 18 USC § 3582(c)(1)(A)) was denied after the BOP falsely assured the court that Fred could receive adequate care in custody. Judge Dalton later wrote, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody. And, regrettably, his condition was indeed terminal.”

Fred’s second compassionate release motion filed three months later – supported by an affidavit from an oncologist that Fred was likely dying of cancer – was granted. The Court ordered him released as soon as the Probation Office and Fred’s attorney worked out a release plan.

The BOP didn’t wait for a release plan. After forcing Fred’s parents to pay $500 for an airline ticket, the BOP dumped Fred – who by then was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – on the airport curb without even a wheelchair. Only with the aid of strangers was Fred able to get on the plane, change planes in Atlanta, and arrive, his clothes soaked with blood and feces, in Jacksonville. His parents took him straight to a hospital, where he died nine days later.

Judge Dalton was outraged, holding the Seagoville warden in contempt, not for the negligent medical care but for the heartless way the prison dumped Fred at the airport:

The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.

The judge found that the BOP’s actions were “inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America.”

A special master appointed by Judge Dalton confirmed that prison officials allowed an incarcerated man to waste away from highly treatable cancer and misrepresented key facts about his health care to a court. After that, the judge referred the matter to the DOJ Office of the Inspector General.

Last week, the Inspector General concluded that “serious failures by multiple levels of staff” at Seagoville led to Fred’s death from colon cancer. The OIG “identified job performance and management failures at multiple levels within FCI Seagoville, from line staff through the Warden. We also identified problems with the BOP’s medical care of inmates, handling of compassionate release requests due to medical circumstances, and handling of compassionate release orders.”

The OIG found that severe understaffing led to six months of delays in scheduling a colonoscopy for Fred, despite symptoms, tests, and scans showing that he likely had advanced colon cancer. As his condition worsened, staff denied his requests for a compassionate release without fully reviewing his medical records and then misrepresented the adequacy of treatment he was receiving to a federal judge. And when that judge finally ordered Bardell’s release, no fewer than nine BOP officials and employees failed to read the court’s order and thus violated the Judge’s directive to wait until a release plan had been approved. The Report said, “The hastiness of the BOP’s handling of Bardell’s release was extremely concerning because the BOP did not take measures to ensure his safe and compassionate transport in light of his medical condition.”

The OIG also said that “the BOP’s handling of Bardell’s request for a reduction in sentence [RIS] was deficient, and the government’s related representations to the Court that there was ‘no indication’ that Bardell could not ‘receive adequate care in custody’ were inconsistent with what we learned during the course of our investigation and review.”

The canard that a compassionate release is unnecessary because there is ‘no indication’ that an inmate cannot ‘receive adequate care in custody’ is one common to government oppositions to medical-condition compassionate release RIS requests. The OIG tears the fig leaf from these representations. In Fred’s case, the Inspector General’s report found,

that the government’s inaccurate representations were the result of the government’s reliance on the BOP’s RIS decision, which we found to be based on a seriously deficient process within the BOP, and [Assistant United States Attorney Emily C. L.] Chang’s honest, although nonexpert, understanding of the limited records provided by the BOP. While we believe that it would have been prudent for Chang to consult with BOP medical professionals, other BOP employees, or other medical experts to better understand the BOP medical records, Bardell’s medical condition, and the BOP’s ability to care for him, we noted that Department procedures in place at the time did not require her to speak with such individuals.

‘It’s so because we say it’s so,’ the BOP says in an ipse dixit run wild…

Those familiar with litigation involving BOP conduct are all too aware of the government’s unquestioning reliance on the Bureau’s ipse dixit pronouncements. Whether the OIG’s implicit doubt that doing so is appropriate will change anything is probably unlikely.

DOJ OIG, Investigation and Review of the Federal Bureau of Prisons’ Conditions of Confinement and Medical Treatment of Frederick Mervin Bardell and Related Representations to the Court, Upon Referral by Senior U.S. District Judge Roy B. Dalton, Jr. (January 6, 2026)

Reason, Inspector General Report Finds Serious Failures Led to an Inmate Wasting Away From Treatable Cancer (January 6, 2026)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

LISA, BOP Mistreatment of Inmate Dying of Cancer Sparks Outrage (October 17, 2002)

~ Thomas L. Root

Supreme Court Loosens 2255 ‘Second or Successive’ Restrictions – Update for January 12, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS GUTS § 2244 LIMITATIONS ON SUCCESSIVE § 2255 MOTIONS

For federal prisoners, the only workable means of challenging an unlawful conviction or sentence after direct appeal rights have lapsed is through a petition for writ of habeas corpus. Such a petition is brought through a mechanism provided by 28 USC § 2255.

The procedure is restricted as to timing and frequency: generally, the motion must be filed within a year of the end of direct appeal rights. What’s more, it is a one-to-a-customer filing: to bring a “second or successive” § 2255 motion, the prisoner must get advance approval from the Court of Appeals, and the new filing must fit within very narrow restrictions described in 28 USC § 2255(h).

Congress adopted the restrictions in the Antiterrorism and Effective Death Penalty Act some 30 years ago. I have railed about the AEDPA often enough, so here I will just mention that constitutional abomination in passing.

Back in 2008, Michael Bowe was convicted of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924. In 2016, after the Supreme Court invalidated the residual clause in the Armed Career Criminal Act, Mike filed a § 2255 motion arguing that § 924(c)’s residual clause was unconstitutional as well. The District Court denied the motion, reasoning that – regardless of the residual clause’s constitutionality – he was not entitled to a second bite of the apple because attempted Hobbs Act robbery qualified as a “crime of violence” under the elements clause of the statute.

In 2019, after United States v. Davis held that conspiracy to commit a violent crime was not itself a violent crime, Mike sought permission from the 11th Circuit under § 2255(h) to file a second or successive motion raising whether his § 924(c) conviction should be thrown out. A three-judge panel found that while Davis announced a new, retroactive constitutional rule (one of the two statutory gateways for successive motions under § 2255(h)(2)), Mike could not show that his § 924(c) conviction was unconstitutional because Circuit precedent still treated attempted Hobbs Act robbery as a crime of violence under the elements clause.

After United States v. Taylor held in 2022 that attempted Hobbs Act was not a crime of violence either, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor left neither of his Hobbs Act convictions as a valid predicate for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under 28 USC § 2244(b)(1). That statute on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court, not federal prisoners proceeding under § 2255. Nevertheless, language in § 2255(h) has led courts to ambiguously apply § 2244(b)(1) to federal § 2255 movants as well.

The Circuit panel also denied the part of Mike’s request that rested on Taylor because Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Mike didn’t give up, going back to the 11th several times, seeking authorization to pursue a § 2255 motion, asking for an en banc hearing, and seeking reversal of Circuit precedent applying § 2244(b)(1)’s old-claim bar to federal prisoners’ successive § 2255 motions. He also requested certification of the question whether § 2244(b)(1) applied to federal prisoners at all. But the 11th turned down all of his entreaties.

Mike eventually filed for a Supreme Court review, pointing out that while six Circuits apply § 2244(b)(1)’s old-claim bar to federal prisoners, three others held that it only applied to state prisoners seeking leave to file a second § 2254 petition in federal court.

Last Friday, the Supreme Court ruled for Mike.

First, the Justices held 5-4 that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, that provision does not apply to federal prisoners. The Supremes reasoned that the limitation is housed within § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, § 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions’.”

The Supreme Court also ruled that § 2244(b)(1)’s “old-claim” bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners alone: “That specific reference to § 2254 was deliberate: Elsewhere in this very section, Congress expressly distinguishes § 2254 “applications” from § 2255 “motions… When interpreting statutes, the Court presumes that “differences in language like this convey differences in meaning.” By its plain terms, § 2244(b)(1)’s old-claim bar applies only to state prisoners.”

In the Bowe decision, SCOTUS resoundingly underscores that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization [to file a successive § 2255], a panel can authorize the filing if the filing makes a prima facie showing that it satisfies one of the two grounds in § 2255(h), the ‘two—and only two—conditions in which a second or successive § 2255 motion may proceed’,” quoting Jones v. Hendrix.

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (Jan. 9, 2026)

United States v. Davis, 588 U.S. 445 (2019)

United States v. Taylor, 596 U.S. 845 (2022)

Jones v. Hendrix, 599 U.S. 465 (2023)

~ Thomas L. Root