SCOTUS Oral Argument Lacks Compassion for Compassionate Release Cases – Update for November 17, 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.

ARE YOU DISRESPECTING ME?

An uncomfortable number of Supreme Court justices last Wednesday questioned whether the United States Sentencing Commission overstepped its authority when it amended USSG § 1B1.13(b)(6) to hold that changes in mandatory minimum laws – even when not retroactive – and concerns about actual innocence could be part of a court’s consideration when weighing an 18 USC § 3582(c)(1)(A) compassionate release motion.

I learned as a young lawyer (many years ago) that trying to predict the outcome of an appellate case based on the oral argument was a fool’s errand. Still, the nearly three hours of argument last Wednesday on what should be or should not be extraordinary and compelling reasons judges must consider in granting § 3582(c) sentence reductions provided little reason for optimism.

The issue was whether extraordinary and compelling reasons include factors like trial errors or nonretroactive changes in the law.  Lawyers for Daniel Rutherford and John Carter, two inmates seeking such sentence reductions, argued that the Commission was within its legal authority to say that courts could consider whether the First Step Act’s nonretroactive changes to gun and drug mandatory minimums would have resulted in lesser sentences in their cases.

In a third case, Fernandez v. United States, a district court had granted Joe Fernandez compassionate release in part because the judge felt “disquiet” about the conviction due to questions about whether the witness who had fingered Joe had lied to save his own skin. The 2nd Circuit Court of Appeals rejected the compassionate release, arguing that Joe’s innocence claim should have been brought up in a 28 USC § 2255 habeas challenge instead.

A § 3582(c)(1) sentence reduction, known a little inaccurately as “compassionate release,” permits courts to reduce criminal sentences in certain cases. Before 2018, the Bureau of Prisons was the only entity that could file a motion for such consideration, but the First Step Act eliminated that requirement. The Sentencing Commission is charged by 28 USC § 994(t) with the responsibility for defining what constitutes an extraordinary and compelling reason, and has expanded such to include medical conditions, family circumstances and age. The compassionate release guideline amendment in November 2023 adopted a broader view of compassionate release factors that included changes in the law that would have made a prisoner’s sentence much shorter if those changes had been in force when he got sentenced.

During Wednesday’s arguments, the only Justice of the nine expressing sympathy for Rutherford, Carter, and Fernandez was Ketanji Brown Jackson. All of the others seemed concerned that the changes in USSG § 1B1.13(b)(6) thwarted Congress’s will, would result in a flood of compassionate release motions, and would permit an end-run on § 2255.

Jackson maintained that the § 2255 and compassionate release considerations were not mutually exclusive. Instead, Jackson said compassionate release was intended to work as a safety valve.

“The question is, ‘safety valve for what?” Justice Elana Kagan countered. “Not every safety valve is a safety valve for everything.”

Justice Sonia Sotomayor said a district judge’s doubts about a jury verdict shouldn’t be used as a factor in compassionate release claims. “It happens to every district court judge,” she said. “There’s a case where you really struggle, but can we, in the facts of this case, denote that that is an extraordinary circumstance?”

Justice Neil Gorsuch contended that the judge’s own feelings, even if reasonable, should have nothing to do with the defendant’s circumstances for compassionate release. “I thought, in our legal system, the jury’s verdict on the facts is not something a court can impeach unless it’s clearly erroneous,” Gorsuch said. He suggested that the Commission had been “disrespectful” by substituting its own position on retroactivity for Congress’s.

In the Fernandez case, the Court appeared uneasy with allowing judges to consider factors that also fall under the federal habeas statute. Kagan said that habeas claims face harsh limitations and questioned whether inmates might use compassionate release as an end-run around those prohibitions.

Justice Samuel Alito observed, “The First Step Act was obviously heavily negotiated… and retroactivity is, of course, always a key element in the negotiations. Congress specifically says this is not going to be retroactive to those cases where sentences have already been imposed. And then the [Sentencing] Commission, though, then comes in and says we’re now going to give a second look for district judges to revisit those sentences…”

Justice Amy Coney Barrett asked whether a judge’s disagreement with the mandatory minimums could be enough justification for a compassionate release grant. David Frederick of Kellogg Hansen Todd Figel & Frederick PLLC, representing Rutherford, replied that even if a judge thinks a sentence is too harsh or if it would have been lower after the sentencing reforms, the Sentencing Commission’s guidelines require other factors, like a prisoner’s age, health and family situation, to be part of the overall picture.

Chief Justice John Roberts worried that the Sentencing Commission was opening the floodgates to applications for compassionate release. Currently, the 3rd, 5th, 6th, 7th, 8th and D.C. circuits have ruled that the Commission’s interpretation exceeds its authority and is wrong, while the 1st, 4th, 9th and 10th circuits have allowed courts to consider the disparity between pre- and post-First Step Act sentences.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman – who filed an amicus brief supporting Rutherford, Carter and Fernandez – was pessimistic about the outcome of the cases:

But the Justices seem poised to concoct some new legal limits on equitable sentence reduction motions, though it remains unclear exactly how they will decide to legislate from the bench in this context. There was some interesting discussion during the Fernandez case about which of various possible restrictions relating to § 2255 that the government wanted the Justices to enact. And in Rutherford/Carter, the Justices expressed in various ways which sentencing statutes they thought might create implicit limits on the bases for sentencing reductions. Just how the Justices decide to act as lawmakers and policymakers in this setting will be interesting to see.

Bloomberg Law observed, “The court’s decisions in the cases could have a chilling or stimulating effect on compassionate release petitions. The Sentencing Commission reports they have increased dramatically since passage of the First Step Act and the pandemic, with more than 3,000 filed across the country last year.”

A decision is not expected until next spring.

Fernandez v. United States, Case No. 24-556 (Supreme Court oral argument November 12, 2025)

Rutherford v. United States, Case No. 24-820 (Supreme Court oral argument November 12, 2025)

Carter v. United States, Case No. 24-860 (Supreme Court oral argument November 12, 2025)

Law360, Justices Hint Early Release Factors ‘Countermand’ Congress (November 12, 2025)

WITN-TV, Supreme Court to weigh limits on compassionate release (November 12, 2025)

Courthouse News Service, Supreme Court disquieted by increased judicial discretion over compassionate release (November 12, 2025)

Sentencing Law and Policy, Justices seem eager to concoct limits on grounds for sentence reductions, but what new policy will they devise?  (November 12, 2025)

Bloomberg Law, Justices Eye Scope of Compassionate Release ‘Safety Valve’  (November 12, 2025)

~ Thomas L. Root

Exclusions From FSA Credits Are Easy To Come By – Update for November 14, 2025

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We share news and provide commentary on federal criminal justice issues, mainly focusing on trial and post-conviction topics, legislative efforts, and sentencing debates.

FSA CREDITS FOR AGGREGATE SENTENCES TAKE IT ON THE CHIN

Greg Bonnie is serving a 120-month drug-trafficking sentence and a consecutive 24-month revocation sentence tied to a 2005 conviction that included an 18 USC § 924(c) gun count.

A § 924(c) conviction is one of about 63 different convictions listed in 18 USC § 3632(d) that will disqualify someone from receiving First Step Act credits. Those credits are awarded as an incentive to inmates to complete programs that are proven to make them less likely to commit new crimes once they are released from prison.

A couple of asides here.  First, when the First Step Act programs were developed, experts estimated that they would substantially reduce recidivism. The actual results through June 2024, however, showed that the reduction was far greater than what even the most optimistic projections had anticipated. People whose programming placed them in the “low” recidivism category were estimated to have a repeat-offender incidence of under 25%. Real-world results showed that the repeat-offender incidence for almost 13,000 “low-risk” inmates over four years was 11.4%.

Second aside: The First Step Act directed the Attorney General to issue an annual report on the effectiveness of the Act’s several programs for five years, ending with June 2025, including review of the FSA credits and recidivism. Unfortunately, the current Administration’s Attorney General has been too preoccupied with pardoning people on the President’s preferred list, prosecuting sandwich throwers, purging the disloyal, and pursuing the President’s enemies to honor its obligation. We are thus six months overdue for the final 2025 report, and thus we’re having to make do with what old data we have.

Back to FSA credits: The list of convictions excluded from FSA credit makes sense only in a very political way. If your co-defendant possessed a gun while selling the marijuana you two raised, your § 924(c) disqualifies you. If you rob a bank and beat up a teller, you’re qualified. If you download child porn, you are disqualified. If you hire a hit man (who turns out to be an undercover cop) to kill your spouse, you’re OK.

The exemption of the § 924(c) offense from FSA credit was an 11th-hour deal Senate Majority Leader Mitch McConnell made with Sen. Ted Cruz (R-TX) and Sen. Tom Cotton (R-AR) in order to corral their support for the First Step Act. As you may recall, § 924(c) requires that a court impose a mandatory consecutive sentence of at least five years on anyone convicted of possessing, using or carrying a gun during a crime of violence or drug offense. Stick a Glock in your waistband while selling a guy a 20-lb bale of marijuana you and your cousin grew back in the woods? The Guidelines will score you at a base 14 for that sale, barely worth 15 months in federal prison. But the gun in your waistband will add another five years to the sentence.

And now for Greg: In 2005, Greg was sentenced to 120 months for his bad judgment to engage in a drug trafficking offense and a consecutive 60 months for having the even worse judgment to possess a gun while doing it. In 2017, he completed the sentence in began an 8-year term of supervised release.

When it came to dealing drugs, Greg was learning-challenged (or his time in BOP custody was so much fun he wanted to repeat it). Whatever the reason, Greg resumed the drug trade while on supervised release. In 2021, he was again convicted of drug trafficking and received another 120-month sentence. Because the new crime also violated his supervised release, Greg received a consecutive 24-month sentence, for a total of 144 months.

The Bureau of Prisons is authorized by law to aggregate sentences, meaning that multiple sentences are blended into a single aggregate term for administrative purposes. That worked against Greg here: the BOP decided that because one-third of the Greg’s prior sentence was for a § 924(c) violation, and because one-sixth of his current sentence (24 months of a total 144 months) was for a supervised release violation stemming from the prior sentence, Greg was serving a sentence for a violation of § 924(c) and was ineligible for FSA credits.

The math is interesting. About one-eighteenth of his current sentence can be attributed to the § 924(c) violation. Presumedly, if the court had sentenced him to one day additional incarceration for the supervised release violation – making the § 924(c) share of the current sentence less than 1/9000th of the total sentence – Greg would still be considered ineligible for FSA credits.

Notwithstanding the intellectual force of my reductio ad absurdum argument, not to mention the serious question of whether serving a prison term for violating a term of supervised release can fairly be considered to be serving a prison term for any of the counts of conviction that led to the original prison term), the BOP denied him FSA-credit eligibility for the entire 144-month sentence. Under 18 USC § 3584(c), multiple terms of imprisonment are to be treated “as a single, aggregate term of imprisonment” for administrative purposes. Thus, the BOP took the view that Greg’s 24-month supervised release revocation term disqualified him from earning FSA credits for his entire 144-month sentence.

This was no mean matter: Greg’s maximum FSA credits would have been about 50 months, entitling him to a year off of his sentence and the right to spend the remaining 38 months’ worth of credit or so on home confinement or in a halfway house.

Greg filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP could deny him FSA credits only for the 24-month supervised release revocation. The district court denied his petition, and last week, the 4th Circuit denied his appeal.

The issue was whether a federal prisoner serving multiple terms of imprisonment, some of which qualify for FSA credits and at least one tied to a conviction that is deemed disqualifying by 18 USC § 3632(d)(4)(D), may earn FSA credits during the non-disqualifying portion of the sentence.

In a 2-1 decision, the 4th held that because 18 USC § 3584(c) requires aggregation for administrative purposes, and because administering FSA credits is an administrative function, any prisoner serving an aggregate term that includes any disqualifying conviction is ineligible for FSA time credits for the entire aggregate term. The aggregate term is evaluated as a whole, and because the aggregate includes a disqualifying § 924(c)-based revocation sentence, Greg is ineligible for credits for the entire aggregate term.

The dissenting judge argued that the text “is serving a sentence for” naturally means ineligibility only while the disqualifying sentence is actually being served; once that period ends, eligibility resumes for the remaining eligible term.

The Circuit’s decision aligns with other circuits and mechanically emphasizes the statute’s categorical prisoner-level disqualification in a blunt-force kind of way.

Bonnie v. Dunbar, Case No 24-6665, 2025 U.S.App. LEXIS 28978 (4th Cir. Nov 5, 2025)

~ Thomas L. Root

Congress May Again Try for Supervised Release Reform – Update for November 13, 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.

SUPERVISED RELEASE BILL INTRODUCED IN SENATE AND HOUSE

The government may only now be reopening, but the business of Congress has ground on nonetheless. Last week, the Safer Supervision Act – intended to clean up supervised release – was introduced simultaneously in the Senate (S. 3077) and the House (H.R. 5883).

The bills would lock in some changes to the Guidelines that just became effective at the beginning of this month – such as guiding the courts to impose supervised release only on defendants who need it – and creating a presumption that supervised release should terminate early unless there’s a compelling reason to continue it. Beyond that, the bill would make appointed counsel available to people seeking early termination and let courts overlook minor supervised release R violations such as drug possession and use.

Sen Mike Lee (R-UT) introduced the Senate version and Representative Laurel Lee (R-FL) – no relation to the Senator – introduced the House bill. Both bills have Democrat co-sponsors.

About 110,000 people are currently on federal supervised release, about 70% of the total BOP population. Probation officers can have caseloads of over 100 people. The Administrative Office of U.S. Courts has explained that “excessive correctional intervention for low-risk defendants may increase the probability of recidivism by disrupting prosocial activities and exposing defendants to antisocial associates.”

This is not the Safer Supervision Act’s first rodeo. The same bill was introduced in the Senate in 2022 (117th Congress) and in both the Senate and House in 2023 (118th Congress), but did not come up for a vote before those Congresses ended.

The current version is supported by both law enforcement and prison reform groups, including the Conservative Political Action Conference, Federal Law Enforcement Officers Association, Major Cities Chiefs Association, National District Attorneys Association, Right on Crime, Americans for Prosperity, Faith and Freedom, Prison Fellowship, R Street Institute, Texas Public Policy Foundation, and REFORM. The measure has been introduced early enough in the life of the current Congress, which does not end until January 2, 2027, that it may stand a chance of passage.

S. 3077, Safer Supervision Act

H.R. 5883, Safer Supervision Act

Reason, Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That. (June 4, 2024)

~ Thomas L. Root

Innocence, Disparity, and Judge-Made Law on Tap at SCOTUS – Update for November 11, 2025

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COMPASSIONATE RELEASE WEEK

Tomorrow, federal compassionate release takes center stage as the Supreme Court hears oral argument in Fernandez v. United States and Rutherford v. United States.

What Does Compassion Have to Do With Innocence?      Fernandez asks whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that might also be a basis for a 28 USC § 2255 motion to vacate a conviction or sentence (such as a complaint that defense counsel failed to raise an obvious Guidelines mistake at sentencing).

I wrote about the Fernandez case when the 2nd Circuit sent the guy back to prison in 2024, and the lengthy fact pattern is worth revisiting. Suffice it to say here that Joe’s district court acknowledged the validity of the jury’s verdict and Joe’s sentence, while nevertheless holding that “jury verdicts, despite being legal, also may be unjust” and concluding that questions about Joe’s innocence, together with the stark disparity between Joe’s sentence and those of his co-defendants, constituted extraordinary and compelling circumstances under § 3582(c)(1)(A) warranting as sentence reduction to time served.

The 2nd Circuit reversed, holding that Joe’s sentencing disparity was not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute,” and that concerns that Joe might be innocent had to bow to the fact that the post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.”

The 5th and 10th Circuits agree with the 2nd  Circuit. The 1st and 9th do not.

That Was Then, This is Now:         Rutherford asks an even more basic question: whether the Sentencing Commission – which was delegated the authority by Congress to define what circumstances are “extraordinary and compelling” reasons for compassionate release under 18 USC § 3582(c)(1) – can hold that a nonretroactive change in the law (such the First Step Act’s change in 18 USC § 924(c) to eliminate stacking can be a reason for a compassionate release.

Section 403 of the First Step Act of 2018 reduced penalties for some mandatory minimum sentences for using guns in some crimes. The change, however, was not retroactive. Because of the changes, someone sentenced on December 20, 2018, for two counts of carrying a gun while selling marijuana on two different days got a minimum sentence of 30 years. The same sentence imposed two days later would have resulted in a minimum sentence of 10 years.

Under 28 USC § 994(t), the Sentencing Commission is charged by Congress with defining what constitutes an “extraordinary and compelling reason” for compassionate release. Congress placed only one limit on the Commission’s authority: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”

In its 2023 revamping of the compassionate release guideline, the Commission adopted subsection 1B1.13(b)(6), stating that if a defendant had received an unusually long sentence and had served at least 10 years, a change in the law may be considered in determining whether he or she has an extraordinary and compelling reason for a § 3582(c)(1)(A) sentence reduction.

The Rutherford issue, simply enough, is whether the Commission exceeded its authority in making a nonretroactive change in the law a factor to be considered (along with others) in a § 3582(c)(1)(A) sentence reduction.

A RICO Claim?:   Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that an argument in last week’s Supreme Court argument on supervised release (Rico v. United States) goes to the heart of the issues at stake in Rutherford and Fernandez. During the argument, Justice Gorsuch observed that Congress appears to be better situated to resolve the conflict by amending the law, because “the alternative is for us to create a fugitive tolling doctrine pretty whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what the [law] already says.”

   xxxxxxxxxxxxxxNot that RICO…

Berman observed that the Fernandez and Rutherford circuit courts “have been inventing limits on compassionate release motions pretty much out of ‘whole cloth’ and are in the (messy) process of coming up ‘with a whole common law doctrine here to supplement what the [applicable statute] already says.’” Berman argues, “I understand why circuit courts are inclined to invent judge-made limits on compassionate release motions, but that’s not their role in this statutory sentencing context. Congress makes sentencing law based on its policy judgments, and it has also expressly tasked the expert U.S. Sentencing Commission with ‘promulgating general policy statements… [describing] reasons for sentence reduction.’ 28 USC § 994(t). If the government does not like how this law is written or gets applied, it should be making its case for legal change to Congress and/or the Sentencing Commission, not to the Supreme Court.”

Berman noted that in Koon v. United States, the Supreme Court 30 years ago said that “it is inappropriate for circuit judges to be developing a “common law” of sentencing restrictions when that’s a job only for Congress and the Sentencing Commission. That Justice Gorsuch is focused on similar concerns in another statutory sentencing context seems significant.”

Fernandez v. United States, Case No. 24-556 (oral argument Nov 12, 2025)

Rutherford v. United States, Case No. 24-820 (oral argument Nov 12, 2025)

Sentencing Law and Policy, Do Justice Gorsuch’s concerns about judge-made law foreshadow big issue in compassionate release cases? (November 5, 2025)

Koon v. United States, 518 US 81 (1996)

~ Thomas L. Root

SCOTUS Skeptical About Fugitive Tolling of Supervised Release – Update for November 10, 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.

THE FUGITIVE

The Supreme Court heard oral argument last week on whether people who flee from supervised release can claim that the term of their supervised release nevertheless continued and expired while they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court could not revoke supervised release for violations of the conditions of supervision after the term’s expiration.

[Explainer:  Supervised release is a period after the defendant is released from prison during which he or she is subject to the supervision of a probation officer and must comply with a long list of standard and special conditions. Violation of the terms of supervised release may result in the imposition of more restrictions, the lengthening of the supervised release term, or even being sent back to prison].

The doctrine, called fugitive tolling, suspends the running of supervised release while the defendant is on the lam. Without fugitive tolling, a district court would lack the authority to revoke supervised release for violations that weren’t charged until after the term of supervision ended.

The justices struggled with how the Dept of Justice scenario aligned with the law and congressional intent over federal court jurisdiction and sentencing on such matters.

The underlying issue stems from the case of Isabel Rico. She lost touch with her probation officer during her 4-year supervised-release term stemming from a drug trafficking conviction, who decided that she had absconded. While she was out of touch, she was convicted by state authorities for evading the police, driving without a license and possessing drug paraphernalia.

She wasn’t arrested until well after the expiration of her supervised release term. The government charged her with two minor violations that occurred during her term, as well as for committing the crimes of evading, no license and drug paraphernalia (which occurred after her supervised release term ended). Isabel objected that the district court lacked jurisdiction to consider the 2022 drug-related offense as a supervised-release violation because her term of supervised release had expired in June 2021.

The government responded that the clock on Isabel’s supervised release term was paused when she absconded in May 2018, with about three years remaining, and did not resume until she was apprehended in January 2023 – meaning that she remained on supervised release when she committed the 2022 state offenses. Isabel argued that the “fugitive tolling” doctrine on which the government relied was inapplicable in the context of supervised release.

It was a big deal because the only violations she committed during the original supervised release term were low-grade ones carrying minor penalties. The 2022 violations were Grade A, however, carrying stiffer punishment under the Sentencing Guidelines.

At the oral argument, Justice Neil Gorsuch observed that the government has already gone to Congress in an effort to amend a section of the Sentencing Reform Act dealing with a violation of supervised release. “Congress has proven pretty solicitous in this area,” he said. But Congress never adopted any fugitive tolling provision, meaning that the government is now asking the Supreme Court to create one. “And the alternative is for us to create a fugitive tolling doctrine pretty [much out of] whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what [the law] already says.”

Justices Ketanji Brown Jackson and Sonia Sotomayor questioned whether the government’s theory of abscondment amounted to extending a period of punishment. “The traditional tolling is that the clock stops with respect to the obligation when you run away, and it picks up again when you’re found again,” Jackson said. “So it seems to me that what you’re actually asking for is an extension rule.”

Fugitive tolling is shaped by one central statutory provision, 18 USC 3583(i), which holds that if a court issues a warrant for a supervised release violation before the term expires, the court will continue to have jurisdiction to revoke supervision and impose punishment for those violations. Thus, if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision.

Section 3583(i) gives the court authority to revoke supervision if the defendant becomes a fugitive. A court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release.

The case will be decided by the end of June 2026.

SCOTUSBlog, Court leans against applying fugitive tolling in federal supervised release (Nov 5, 2025)

Bloomberg Law, US Supreme Court Struggles With Dispute Over Supervised Release (Nov 3, 2025)

Rico v United States, Case No 24-1056 (argument held Nov 3, 2025)

~ Thomas L. Root

3rd Circuit Gives Amateur Inmate Litigant a Mulligan – Update for November 7, 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.

DO-OVER

Thomas Petoff, a federal prisoner confined to a wheelchair, filed an administrative remedy after he was denied a wheelchair cushion. He said that in retaliation, he was thrown in the Special Housing Unit (SHU), had his wheelchair confiscated, suffered assaults and humiliating treatment, was denied food (including his “religious diet”), medical care, recreation, and law library access, and ultimately lost good-time credits and was fined. He sued.

He threw every claim the jailhouse lawyers in the prison library told him to throw at the defendant. It was a hodgepodge of high-falutin’ legalese used by someone who had no idea what he was doing.

The district court construed Tom’s pro se complaint as raising 1st, 5th, and 8th Amendment claims under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics. That wasn’t enough to keep the case from being dismissed with prejudice. For good measure, the Court said Tom’s complaint was barred by Heck v. Humphrey to the extent that his claims undermined disciplinary sanctions.

It was kind of a ‘get out and don’t come back’ dismissal.

Last week, the 3rd Circuit largely agreed on the Bivens and Heck analyses, but held that pro se litigants must be given an opportunity to amend to pursue non-futile statutory theories—here, the Rehabilitation Act and Religious Freedom Restoration Act.

As for the Bivens claim, the Circuit ruled that Tom’s allegations failed in light of the Supreme Court’s decision last summer in Goldey v. Fields, that foreclosed Bivens actions for 8th Amendment excessive force claims.

To the extent that Tom’s claims might call into question the validity of the disciplinary proceeding findings that he had violated prison rules, the 3rd said those claims are barred by the Heck v. Humphrey favorable-termination rule. That rule holds that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged, declared invalid by a state court, or called into question by a federal court on habeas corpus.

However, the Circuit said, Tom got a mulligan on some of his claims. The 3rd said that the district court failed to address Tom’s Americans with Disabilities Act (ADA) and Rehabilitation Act claim, as well as his later-clarified RFRA “religious diet” claim. Although Tom did not plead those claims very well, the 3rd said that an amendment cleaning up those claims would not necessarily have been futile. It remanded Tom’s suit to the district court to give him a fair chance to amend.

Petoff v. Delmonico, Case No. 24-2933, 2025 U.S.App. LEXIS 27737 (3d Cir. October 23, 2025)

~ Thomas L. Root

News From Here And There – Update for November 6, 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.

FEDERAL SHORTS

Bang, Bang: Remember the Bureau of Prisons correction officer who pursued a suspicious BMW parked at MDC Brooklyn through city streets back in September 2023, finally opening fire on the fleeing car at the foot of Brooklyn Bridge (and hitting one of the malefactors in the back)?

Last week, the officer, Leon Wilson, was convicted in U.S. District Court for the Eastern District of New York of depriving the man he shot of his civil rights, as well as an 18 USC § 924(c) offense for using a gun in a crime of violence.

Wilson, who had no arrest authority except on MDC property, faces a mandatory 10-year sentence for the § 924(c) violation.

The New York Times reported that, “Outside the courtroom after the verdict, Mr. Wilson was emotional. He said he had not reported the incident because he was “traumatized,” and that he thought someone had escaped from the jail.”

The people in the car were trying to drop off cigarettes and cellphones to be smuggled into the facility.

New York Times, Guard is Convicted of Pursuing Jail Smugglers and Firing at Them (October 28, 2025)

Do As We Say, Not As We Do: Federal judges have excoriated and fined lawyers for filing AI-generated motions and briefs full of false quotations and case citations.

Now, the Senate Judiciary Committee is taking aim at judges who do the same.

Two federal judges in New Jersey and Mississippi admitted last month that their offices used artificial intelligence to draft factually inaccurate court documents that included fake quotes, mangled facts and even fictional litigants — drawing a rebuke from the head of the Senate Judiciary Committee.

“I’ve never seen or heard of anything like this from any federal court,” Sen Charles Grassley (R-Iowa), chairman of the Judiciary Committee, said in a Senate floor speech last week.

The Committee revealed the week before that Judge Henry T. Wingate of the Southern District of Mississippi and Julien X. Neals of the District of New Jersey admitted that their offices used AI in preparing the mistake-laden filings in the summer.  In true form, the judges blamed someone else, attributing the mistakes to a law clerk and a law school intern, respectively.

Grassley demanded that courts establish rules on AI use in litigation. “I call on every judge in America to take this issue seriously and formalize measures to prevent the misuse of artificial intelligence in their chambers,” he said.

Washington Post, Federal Judges Using AI Filed Court Orders with False Quotes, Fake Names (October 29, 2025)

Beaten Inmate Gets Paid:  A federal judge last week found that an incarcerated, self-represented Florence ADX prisoner should be compensated $10,000 by the government for a BOP prison guard’s unwarranted use of force.

After a five-day bench trial in which the inmate represented himself on his Federal Tort Claims Act complaint, Senior District Court Judge R. Brooke Jackson determined the prisoner had successfully proven one of his three battery claims, that he was slammed into a wall by the officer in a 2018 incident, suffering psychological damage from the encounter.

Being slammed into a wall “has had a profound and lasting negative impact on him. In 18 years prior to the incident in (prison) custody, Mr. Mohamed had no suicide risk assessments; since this incident, he has had 12,” Jackson found in his October 24 order.

The Court noted in a wry aside that the prisoner’s administrative remedies filed for loss of his property did “not settle the matter. Instead, they show [the inmate] and the BOP talking past one another,” a sensation that is all too common in the administrative remedy process.

Colorado Politics, Federal Judge Awards $10,000 to Supermax Prisoner For Guard’s Use of Force (October 29, 2025)

Mohamed v United States, Case No. 1:20-cv-2516, 2025 U.S. Dist. LEXIS 210451 (D. Colo. October, 24, 2025)

Homeland Security Behaving Badly: A couple of federal agents for Homeland Security wound up on the wrong side of the courtroom last week.

In Utah, DHS agent, Nicholas Kindle, an expert on the synthetic drug bath salts was sentenced to 60 months last week for selling the drug while on the job in Salt Lake City.

Before he was sentenced October 22, Nick’s defense attorney argued the sentence should be reduced to reflect his willingness to cooperate with the FBI. He asked for a below-Guidelines 33-month sentence.

Meanwhile, in Minneapolis, former DHS Timothy Gregg pled guilty last Wednesday to production of child pornography after producing videos of his sexual abuse of a 17-year-old.

Gregg testified he thought she was 19, but he later admitted that he had looked her up on a DHS law enforcement database and learned she was 17.

Gregg is the third Minnesota-based law enforcement officer charged with creating or possessing child sex abuse material this year.

Salt Lake City Tribune, A Utah federal agent and bath salts expert is headed to prison for selling the drug. Here’s how long he’ll serve. (October 29, 2025)

Minnesota Public Radio News, Ex federal agent admits guilt in child sex abuse case as attorney recounts harrowing surrender (October 30, 2025)

~ Thomas L. Root

The Wacky World of Federal ‘Violence’ – Update for November 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.

HOW VIOLENT IS KIDNAPPING?

In a world where people wearing blowup costumes holding signs are violent anarchists while others smashing the doors of the Capitol are peaceful tourists, it was perhaps inevitable that a federal court would hold that kidnapping a family of four, zip-tying the parents and holding a gun to a 3-year-old girl’s head in order to find out where the family money was hidden, is not a categorical crime of violence.

This is the latest in a decade-plus saga of Killiu Ford. Killiu is perhaps pronounced “kill you,” an unfortunately apt name for the defendant. As noted, Killiu and his co-defendants abducted a family at gunpoint, robbing them of $30,000.

The district court sentenced Killiu to 600 months in prison, 216 months for two counts of kidnapping the parents, 300 months consecutive for two counts of kidnapping the kids, and 84 months on an 18 USC § 924(c) firearm conviction, consecutive to the other sentences. Later, the government conceded that the § 924(c) conviction had to be vacated because kidnapping was not a violent crime under the statute. The 10th Circuit remanded Killiu ‘s case for resentencing.

On remand, the district court reduced Killiu’s 600-month sentence by 84 months, down to 516 months in prison. But the judge said Killiu deserved a bigger reduction due to his significant rehabilitation during the 12 years he had already spent in prison. But the prosecutor argued that the court was obligated under 18 USC § 3559(f)(2) to impose a mandatory minimum 25-year sentence for each of the two kidnapping convictions involving the children.

Killiu argued that the district court was not obligated to impose mandatory-minimum 25-year sentences and requested instead a downward variance to 240 months.

The district court ruled that § 3559(f)(2) required a mandatory minimum 25-year (300-month) sentence for each of the kidnapping convictions involving the children. In light of that, the court imposed a 300-month sentence for each of Killiu ‘s remaining five convictions, all to run concurrently.

Under § 3559(f)(2), someone convicted of a crime of violence that is kidnapping as defined by the federal kidnapping statute, 18 USC § 1201, shall “be imprisoned for life or any term of years not less than 25.” But § 1201 does not define “crime of violence.” The 10th Circuit concluded that when § 1201 was passed, 18 USC § 16(a) – which defines “crime of violence” – was already on the books. The fact that Congress did not separately define “crime of violence” in § 3559(f) suggests that it was satisfied with the § 16(a) definition.

Using that definition, the 10th Circuit said, “courts have consistently found that a person can commit kidnapping without the use, attempted use, or threatened use of force. For example, a person can commit kidnapping by inveigling—that is, luring, or enticing, or leading the person astray by false representations or promises, or other deceitful means… [B]ecause kidnapping can be committed by “inveigling,” a kidnapping offense does not categorically have as an element the use, attempted use, or threatened use of physical force against the person or property of another.

Killiu’s case was remanded for resentencing.

United States v. Ford, Case No. 23-1400, 2025 U.S. App. LEXIS 28174 (10th Cir. October 28, 2025)

~ Thomas L. Root

A New November… Same Old Laws – Update for November 3, 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.

NOVEMBER 1ST IS HERE… SO WHAT?

Quick quiz: What new laws benefitting inmates became effective on November 1st?

If you said ‘none,’ you win. Any other guess means you lose. If you said the ‘65% law went into effect,’ go to the back of the class.

In a few weeks, I will have been writing this newsletter every week for 10 years. And for the past 10 years, I have been waging a lonely campaign to stamp out the never-ending myth that Congress just passed (or is about to pass) a law that says that some or all federal offenders will only have to serve 65% of their sentences.

So I again repeat myself. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of his or her time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off because things were so bad during COVID.

Nothing. Nada. Zilch. Bupkis.

The genesis of the pernicious 65% rumor is a longing for the bad old days of parole, where federal prisoners served between one-third and two-thirds of their sentences. People seem to think that if parole – abolished in the Sentencing Reform Act of 1985 – only came back, that means that prisoners would only serve two-thirds of their current Sentencing Guidelines sentences. But back then, there were no Guidelines sentences. Courts would just hand out statutory sentences of 5 years, 10 years, 20 years, or whatever. The U.S. Parole Commission would then apply its own guidelines to determine where – between one-third and two-thirds of that time – you’d actually be locked up.

So that meant on a sentence with a statutory range of zero to five years, the court would usually give you five years. You would serve between 20 months and 40 months, but you wouldn’t know how long you’d serve until you finally had your parole hearing (in front of a board of non-judges who were notoriously pro-prosecution).

The Sentencing Guidelines moved that analysis to the front of the sentencing process and applied standards that were much more detailed and subject to due process protections.  The parole hearing process was opaque and – while it could be challenged with a 28 USC § 2241 habeas petition – was nearly bulletproof. I have seen both systems, and for all of its shortcomings, the Sentencing Guidelines are better for prisoners by an order of magnitude.

The 65% rumor gained legs because the late Rep. Sheila Jackson-Lee (D-TX) introduced a bill in every Congress since 2003 (except for the 116th in 2019) to increase 18 USC § 3624(b) good time from 15% to 35% for nonviolent offenders. None of those bills ever collected a single co-sponsor, had a committee hearing, or came up for a vote.

Congresswoman Jackson Lee died in June 2024 of pancreatic cancer. Her last effort at a 65%-type law was the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54), which called for nonviolent offenders who were at least 45 years old and had zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, failed.

There is NO legislation pending in Congress – a legislative body unable to even keep the government open – that provides any sentencing relief for federal prisoners. I predict that there is no stomach in this Republican-controlled Congress to entertain any such legislation. If there were, President Trump – who has been pushing the trope that America is overrun with crime – is unlikely to sign it.

However, the 2025 Guidelines amendments did become effective on November 1st. The most significant is that for the first time in 37 years, departures have been eliminated (except for substantial assistance to the government, its own category with three decades of precedent on its frequent application). Another, a new drug amendment, expands the use of the mitigating role adjustment and caps the drug quantity table for such people at a maximum of 32. Another change encourages courts to impose supervised release only on people needing such structure and asks courts to terminate such supervised release early.

The supervised release change will benefit anyone subject to current or future supervised release. None of the other changes, however, is retroactive.

US Sentencing Commission, Amendments in Brief (October 31, 2025)

~ Thomas L. Root

Federal Court Shutdown Follows No Common Script – Update for October 31, 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.

FEDERAL COURTS ARE CLOSED, BUT UNEVENLY

The federal judiciary ran out of money for full, paid operations last week, and the courts have fallen into ‘survival mode’.

Bloomberg Law reported last week that some court locations were closing one day per week and some staff members will be furloughed. Other staff members will work without pay to perform essential functions, including core constitutional duties and criminal cases.

The kinds of activities that fall into these exceptions and will therefore remain ongoing include emergency detention hearings, maintaining critical infrastructure like electronic filing systems, essential criminal proceedings, and urgent court filings that cannot be postponed without violating rights. It probably does not include compassionate release motions, § 2255 adjudication, and most § 2241 proceedings.

“In short,” FindLaw reported last week, “while judges remain constitutionally obligated to serve, the broader judiciary shifts into ‘survival mode,’ sustaining only the most crucial operations under strict legal limits. Most court employees (clerks, administrative staff, researchers, probation officers, and others) cannot work during a shutdown unless their tasks fall into one of those excepted categories. Those who do continue working must do so without pay until Congress restores funding. All other staff are being placed on furlough.”

How the courts have addressed the shutdown varies. Some are only working four days a week.  Others have limited the types of cases that will be decided.

Speaking on The Federal Drive podcast yesterday, Lathan & Watkins partner Nick Boyle, said,

There is a significant amount of autonomy in the court system. What’s happening is that there’s been a bit of divergence, court by court, as funding has run out. So, as you probably know, there was a period where non-appropriated funds could be used by courts. So, that’s things like the balances in court fee accounts, for example. At this point, that funding has essentially been exhausted, and courts are making different decisions on whether to stay open, what to prioritize, etc., depending on things like their caseload or what type of cases that they might take. So, you’re seeing a little bit of a divergence.

The last shutdown that led to court furloughs was over 30 years ago, during the Clinton administration.

ABA Journal, Federal courts furlough some staff as money runs out; Supreme Court will close to the public (October 20, 2025)

Bloomberg Law, US Courts Face First Furloughs Under Shutdown in 30 Years (October 17, 2025)

Findlaw, Justice Unpaid is ‘Justice Delayed’ as Courts Face Government Shutdown (October 22, 2025)

Federal News Network, The ongoing government shutdown is impacting the federal judiciary (October 30, 2025)

~ Thomas L. Root