Beck v. Choy May Be Supreme Court “Sleeper” Case for Inmate Healthcare Rights – Update for October 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.

BORING… UNTIL IT’S NOT

The Supreme Court heard oral argument in a case that most would think makes melba toast exciting by comparison.  But it’s a sleeper, a question of boring civil procedure that has major importance to federal inmates seeking to hold the Bureau of Prisons accountable for healthcare malpractice.

When prisoners receive negligent healthcare, many start planning to bring an 8th Amendment claim for deliberate indifference to serious medical needs.  However, proving that ham-handed medical care was inflicted deliberately is hard. Add to that the fact that since the Supreme Court’s Egbert v. Boule decision in 2022, bringing any federal constitutional claim seeking money damages – a so-called Bivens action – is just about impossible.

Impossible and unnecessary, because healthcare negligence is medical malpractice, and medical malpractice is negligence.  A prisoner can easily bring a negligence action against federal officers or employees under the Federal Tort Claims Act (explainer here).  Proving negligence is much easier than proving deliberate indifference. And, face it, most of the lousy healthcare in the BOP system is the result of negligence rather than a deliberate design to inflict cruelty on inmates. As Hanlon’s Razor cautions us, “Never attribute to malice that which is adequately explained by stupidity.”

There is a catch, however. When a prisoner brings a malpractice suit, he or she must do so in the state where the negligence occurred. The suit is judged according to state malpractice law, although it is brought in federal court. And most states have rules or statutes that require the plaintiff bringing the lawsuit to accompany his or her complaint with an affidavit from an expert that sets out the standard of care in the state and the expert’s belief that the defendant BOP doc or nurse failed to live up to it.

These are typically called “affidavits of merit,” and they are required in order to discourage frivolous lawsuits. They’re tough for inmates, however, even those with strong cases, because no expert is going to provide such an affidavit unless hired. The last time I hired one for a prisoner, it cost $5,000 (and that was eight years ago). Most inmates just don’t have that kind of money lying around.

The affidavit of merit rule has wiped out thousands of inmate FTCA suits over the years, making it impossible for them to get past the complaint stage to where they can engage in discovery (and maybe obtain a settlement). I have not been alone in arguing to courts that the law requires applying federal rules of procedure but state laws governing the substantive issue of whether malpractice has occurred.  This holding, as first-year law students can recite in their sleep, is Erie Railroad Co. v Tompkins.

Erie Railroad Co. v. Tompkins is a landmark Supreme Court decision in which the Court held that the United States does not have a general federal common law. Instead, while federal courts may follow federal procedural rules – such as the Federal Rules of Civil Procedure – they must apply state substantive law, not federal law, to lawsuits that do not involve federal questions. Most American lawyers and legal scholars regard Erie as one of the most important decisions in U.S. Supreme Court history, a decision that has been described as “go[ing] to the heart” of the American system of federalism.

The issue of whether state laws requiring an affidavit of merit with a medical malpractice complaint are substantive or procedural has now reached the Supreme Court. Last Monday, the Court heard argument in Berk v. Choy, a case that asks whether the Delaware state affidavit of merit requirement is a procedural requirement – in which case it does not apply in a federal court FTCA suit – or a substantive requirement that federal courts have to honor.

At the argument, some of the Justices viewed the requirements as “unacceptably hostile to the central conception of the federal trial system,” according to SCOTUSBlog:

Justice Elena Kagan led that group, drawing on a big-picture conception of the Federal Rules of Civil Procedure doubtless influenced by her decades teaching about the subject as a professor. For Kagan, the Delaware rules fly in the face of “the entire thrust of the Federal Rules,” which were “meant to establish a notice pleading system where all you had to do was say: ‘Here I am, here’s my claim, I’m going to be seeking damages, the end,’ and everything else was supposed to happen later in the normal course of things.”

Justice Ketanji Brown Jackson, for example, saw Delaware’s rule as hostile to the federal system: “[W]e have this Delaware law saying what is necessary to file or initiate a malpractice lawsuit as a matter of procedure. You have to have this separate [affidavit]. Notably, it’s not evidence. It is just what is a necessary step to initiate this lawsuit. And under federal law, no such thing is required. The federal law says that the action commences by filing a complaint with the court.”

Justice Sonia Sotomayor pointed to the requirements for filing an answer to a complaint: “The Federal Rules require that an answer be served in 20 days; the Delaware rule says the answer doesn’t have to be served until the affidavit’s filed.”

The defendant hospital argued that the Court shouldn’t focus on details like those cited by Jackson and Sotomayor, contending that there was no reason “that a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case.”

Several justices recognized that such an approach would ask SCOTUS to pick and choose among the various pieces of the Delaware statute.  Justice Neil Gorsuch said, “You are cracking and extracting… some things from the Delaware rule that you would apply in federal court and other things that you wouldn’t… [W]e’re creating this Frankenstein of a statute, right? We’re taking bits and pieces and adapting it, but what authority does a federal court have to rewrite Delaware law in that fashion?” 

SCOTUSBlog writer Ronald Mann said that it was difficult to determine from the argument how the Court would rule. “[I]t is safe to say that several justices will reject Delaware’s procedures, and hard to believe that Kagan won’t write something, but not at all clear what side the court, as a whole, will favor.”

A ruling invalidating the affidavit of merit requirement would be a major victory for inmate FTCA filers.

Berk v. Choy, Case No 24-440 (argued October 6, 2025)

SCOTUSBlog.com, Justices debate state limits on malpractice actions for cases in federal court (October 7, 2025)

~ Thomas L. Root

Riding Along In My Automobile Ain’t Necessarily Interstate Commerce – Update for October 9, 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.

8TH CIRCUIT NOT DRIVEN TO FIND INTERSTATE NEXUS IN SEX CRIME

Muhammad Arif ran a little convenience store in rural Arkansas. He had a handyman employee, a guy who worked hard but could barely support his kids on what he made.

Mo wanted to throw a few extra bucks the family’s way. Great idea. He figured he could do that by soliciting the handyman’s young daughter to engage in sex with him. Not so great an idea. Twice while Mo was driving the 15-year-old home, he pitched her for sex in exchange for money. Twice she refused. Twice he gave her $20.00 to keep her mouth shut about his indecent pitch.

The young lady was short of money but not of brains. She secretly recorded Mo both times and turned him in. The Feds charged Mo with commercial sex trafficking of a minor in violation of 18 USC § 1591(a)(1).

The statute requires that the prohibited act was done “in or affecting interstate commerce.” At trial, a detective testified that Mo drove a 2016 Nissan that had been built in Mississippi. The government offered no evidence about how Mo’s use of the Nissan otherwise affected interstate commerce but argued that because Mo had propositioned the girl while driving in a car built in another state, his crime affected interstate commerce.

Mo argued the government failed to prove that what he did met the “interstate commerce” element. The district court agreed, holding that driving a car on a road, without more, is not evidence of “an actual rather than potential effect on interstate commerce.” The government appealed, arguing that committing a crime that affects interstate commerce, like commercial sex trafficking, satisfies the commerce element of § 1591(a)(1) even if the offense was committed without traveling across state lines.

Last week, the 8th Circuit upheld the district court’s dismissal of Mo’s case. While the case is sex-related, the “interstate commerce” element – common to many federal criminal statutes – makes the analysis interesting and applicable to a variety of statutes that depend on “affecting commerce” for validity.

The Constitution’s Commerce Clause grants Congress the power to “regulate Commerce… among the several states.” For more than a century, the 8th observed, “Supreme Court decisions have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that ‘substantially affect’ interstate commerce.” This third category includes “purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.”

The Circuit had previously held “that Congress’s use of ‘affecting’ in § 1591(a)(1)… suggests that there must be evidence of an actual rather than potential effect on interstate commerce.” The 8th admitted that “it does not take much for a criminal act to affect interstate commerce. Any actual impact, no matter how minor, will do.” However, while “a probability of affecting commerce is sufficient in some cases… the probability must be realistic rather than merely speculative.”

Congress may prohibit conduct committed “through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce,” such as in the arson statute (18 USC § 844). But § 1591(a) is textually different than § 844. “The commerce element in § 1591(a)(1) is conduct ‘in or affecting interstate commerce,’ not use of an instrumentality of interstate commerce,” the appellate court wrote. “Merely using the channels or instrumentalities of interstate commerce is relevant but does not necessarily demonstrate an actual effect on commerce that satisfies the jurisdictional element.”

The government argued that, because a car is an instrumentality of commerce, proof of any use of a car in committing commercial sex trafficking of a minor is sufficient evidence of an actual impact. The Circuit disagreed: “Merely driving a car on a road, without more, does not establish a sufficient interstate commerce nexus. The use of an instrumentality of commerce for a 20-minute intrastate trip in this case is simply not the same as connecting to a multi-state cellular network or the internet, a system that is inexorably intertwined with interstate commerce.”

Mo’s Nissan was certainly linked to interstate commerce, but “the government’s evidence failed to establish that Arif’s use of the car in soliciting [the girl] during two short intrastate drives to her home had an identifiable actual effect on intrastate commerce.”

United States v. Arif, Case No. 24-2323, 2025 U.S. App. LEXIS 25582 (8th Cir. October 2, 2025)

~ Thomas L. Root

GAO Finds BOP Employee Misconduct Process Flawed – Update for October 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.

‘JUSTICE DELAYED’: BOP MISCONDUCT RESOLUTION SYSTEM FLAWED, GAO SAYS


The Government Accountability Office, a congressional agency, issued a report last week criticizing the Federal Bureau of Prisons’ backlog of over 12,000 unresolved employee misconduct complaints.

The BOP received 15,000 employee misconduct allegations last year alone, with beefs ranging from unexcused absences to inmate abuse. The most frequent allegations involved charges of unprofessional conduct or failure to follow policies. Other common allegations claimed employees were absent without leave or failing to follow a supervisor’s instructions. These kinds of accusations have increased during the last 10 years.

Criminal misconduct made up about 14% of allegations lodged in the last decade, allegations of physical and sexual abuse such as those at FCI Dublin, which have resulted in seven convictions so far. But, as of last February, the BOP had more than 12,000 employee misconduct cases awaiting investigation or discipline.

The GAO report noted that the BOP had hired more investigators and taken other steps to reduce the number of open cases. However, the Report found, the BOP “continues to miss its own goals for reducing the backlog of cases and doesn’t have a plan for meeting those goals.”

Bureau officials told GAO that the longer a misconduct case drags on, the more difficult it is to hold employees accountable. As time passes, the employee who is the subject of the complaint “may not remember the details of the incident when investigators question them. Or the employee might leave the bureau before being disciplined.” About 37% of the 12,153 cases open as of February 2025, had been unresolved for three years or longer.

The Report also found that while the BOP collects data on employee misconduct and compares the information from year to year, it doesn’t track misconduct trends across longer periods. “This means the Bureau is missing opportunities to identify trends and address them,” the GAO said.  Also, while the BOP trains employees to prevent misconduct, it doesn’t use their feedback to evaluate the training’s effectiveness.

The BOP was once again on the GAO’s High Risk List for 2025 because of crumbling facilities and threats to prison safety posed by understaffing (which, last week’s Report notes, “can exacerbate employee misconduct. To ensure that incarcerated people are treated humanely and keep its facilities secure, the bureau needs to address these issues and improve its approach to holding employees accountable.”

The Wall Street Journal last week argued that the BOP’s decertification of the 30,000-member employees’ union will help with misconduct allegations. The Journal said, “One of the strongest arguments against prison-guard unions is their role in shielding abusive officers from discipline. In some cases, the unions have ‘frustrated and undermined accountability,’ David Fathi, director of the American Civil Liberties Union National Prison Project, has said.”

After the FCI Dublin sexual abuse scandal, both prisoners and staff said union interference delayed corrective action. Seven of eight corrections officers charged with sex abuse crimes pled guilty or were convicted by juries, according to news reports. At the trial of the eighth officer, the local union president testified that the union abhorred “dirty officers” but claimed the defendant – Darnell “Dirty Dick” Smith, who was charged with 15 sex crimes against women inmates – was accused in retaliation by prison managers for speaking up about their alleged misconduct.

At USP Thomson in 2022, union resistance thwarted a new warden’s plan to fire violent officers. In January 2023, the union called for the warden to be canned for failing “to address the rampant sexual assault and misconduct of employees by inmates.” Some correctional officers tried to persuade inmates to assault the warden.

One BOP inmate told The Marshall Project earlier this year: “On a day-to-day basis, the union is a threat to the well-being of most inmates. It’s what guarantees that the officer who beats you will get away with it.”

Writing in Forbes last week, Walter Pavlo said, “Employee misconduct in federal prisons has consequences that ripple far beyond the individuals directly involved. For incarcerated people, misconduct can lead to harm, abuse, and violations of their basic rights. For staff, it can create a work environment where trust erodes and morale declines. The BOP has consistently ranked last in employee satisfaction, and the recent demise of their union has, for the moment, been troubling for many frontline staff. For the institution as a whole, unresolved allegations undermine legitimacy and weaken public confidence in the system. Legal and financial risks also rise, as cases of abuse or negligence can result in costly lawsuits and federal scrutiny.”

GAO, Bureau of Prisons: Strategic Approach Needed to Prevent and Address Employee Misconduct (GAO-25-107339, September 29, 2025)

Wall Street Journal, Trump Fires the Prison-Guard Union (October 4, 2025)

Forbes, Study Critical Of Bureau Of Prisons Investigating Misconduct (October 1, 2025)

GAO, High-Risk Series: Heightened Attention Could Save Billions More and Improve Government Efficiency and Effectiveness (GAO-25-107743, February 25, 2025)

KTVU-TV, Former FCI Dublin officer charged with sex abuse provides witness list (September 10, 2025)

~ Thomas L. Root

Supremes Kick Off New Court Year With Four Criminal Cases – Update for Monday, October 6, 2025

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BUSY CRIMINAL MONTH AHEAD AT SUPREME COURT

Today’s the first Monday in October, and you know what that means.

The Supreme Court has already scheduled 15 criminal law and related cases during the 9-month term that opens today. While none was added at last week’s “long conference,” the term kicks off with oral argument on two criminal cases this week and another two next week, what SCOTUSBlog called “bookend[s to] the two weeks of oral argument referred to as the ‘October sitting.’”

In Villarreal v. Texas, to be argued today, the Court will consider whether a defendant’s 6th Amendment right to counsel is violated when the judge prohibits the defendant and his lawyer from discussing the defendant’s testimony during an overnight recess that occurs while the defendant is on the stand.

In Barrett v. United States, to be argued tomorrow, the defendant was convicted of an 18 USC § 924(c) offense and a § 924(j) offense (which is a § 924(c) offense in which death results). The 2nd Circuit had allowed the defendant to receive separate cumulative sentences totaling 30 years for the two convictions based on the same robbery-killing. The issue is whether the constitutional ban on double jeopardy prohibits sentencing a defendant for both offenses arising from the same event.

Ellingburg v. United States, which asks whether mandatory restitution constitutes criminal punishment such that the Constitution’s ex post facto clause would prohibit it, will be argued October 14.

Finally, Case v. Montana, to be argued Wednesday, October 15, asks whether a probable cause standard governs warrantless home entries in non-criminal “emergency aid” situations, or if a lower “reasonable suspicion” standard suffices. Here, the police had some reason to believe defendant Case might die by suicide, which the parties assume would allow an emergency entry, but also some reason to think that Case was not in danger. The Montana Supreme Court split 4-3 on whether just a suspicion that emergency aid is really needed –  rather than the higher “probable cause” standard – should be required for police to enter.

SCOTUSBlog, Upcoming criminal law arguments, and putting faith in life tenure (October 3, 2025)

Villarreal v. Texas, Case 24-557, to be argued October 6

Barrett v. United States, Case 24-5774, to be argued October 7

Ellingburg v. United States, Case 24-482, to be argued October 14

Case v. Montana, Case 24-624, to be argued October 15

 

~ Thomas L. Root

BOP Would Walk 500 Miles… – Update for October 3, 2025

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TAKE THE LONG WAY HOME

One of several pervasive First Step Act myths I hear regularly from inmates is that the BOP is required to place them in facilities located within 500 driving miles from their homes. FSA sponsors trumpeted this as a great gift to prisoners when FSA passed nearly 7 years ago, but – as always – the fine print is what counts. And the fine print has more holes than a window screen.

In 18 USC § 3621(b), Congress said that “subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns,” the BOP shall place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.”  Any BOP manager whose had his or her morning coffee can find another “security concern” exception sufficient to place a prisoner anywhere there’s an opening.

Now, the Dept of Justice Inspector General has reported that the BOP has been dogging it. In an audit released last week, the IG said that the BOP’s inmate placement data showed that a third of the inmates the audit evaluated were over 500 miles from their release residence on September 28, 2024. What’s more, despite the law, the BOP continued to use a straight-line, or “as the crow flies” calculation instead of driving miles, resulting in an undercalculation for the inmates evaluated of about 8% (8,600 people).

Additionally, the IG found that out of a sample of 100 inmates (placed both more and less than 500 miles from home), for 26% the auditors could not determine the reason the inmates were placed where they were, “particularly when there were comparable facilities closer to the inmate’s residence.”

Not that it matters. Under § 3621(b), BOP designation decisions are “not reviewable by any court.”

Dept of Justice Office of Inspector General, Audit of the Federal Bureau of Prisons’ Efforts to Place Inmates Close to Home (Report 25-083, September 25, 2025)

~ Thomas L. Root

Lawyers Can Be Wrong But Still Be Good, 7th Says – Update for October 2, 2025

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WRONG DOESN’T MEAN INEFFECTIVE, 7TH CIRCUIT SAYS

Otis Elion pleaded guilty to distributing meth in 2017. The district court held that he qualified as a Guidelines Chapter 4B “career offender.” Otis’s attorney did not object, because after researching whether his prior convictions qualified as predicate offenses for career offender, she concluded that challenging that sentencing enhancement would fail.

In his 28 USC § 2255 petition, Otis argued his lawyer provided ineffective assistance under Strickland v. Washington by not challenging his “career offender” status. The district court agreed that he was prejudiced because he really didn’t qualify as a “career offender,” but that his lawyer – although wrong – was not ineffective.

With several prior drug convictions, Otis may have been a “career offender” under USSG § 4B1.1(a). The drug convictions might have been considered to be “controlled substance offenses, “defined as federal or state offenses that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)” or possession with intent to engage in those actions, punishable by imprisonment for a term exceeding one year.”

One of Otis’s priors was a 2006 federal conviction for distribution of crack cocaine. Before that was a 2000 conviction for delivery of a look-alike substance. The oldest was a 1999 conviction for delivery of a look-alike substance within 1,000 feet of public housing property. The Presentence Report concluded that those convictions qualified Otis for career offender.

His attorney reached the same conclusion, so she did not object to the application of the enhancement at Otis’s sentencing. Instead, she argued Otis ‘s health and life circumstances justified a mitigated sentence. The district court sentenced Otis as a “career offender” to 167 months.

To Otis, neither his 1999 nor his 2000 state convictions was controlled substance offense because look-alike substances made the Illinois statute broader than the Guidelines, and his lawyer’s failure to make that argument violated his 6thAmendment right to effective assistance of counsel. Using the modified categorical approach, the court agreed the Illinois use of “look-alike” substance made it different from the Guideline’s use of counterfeit substance.

Otis’s attorney had wrongly concluded that “counterfeit” and “look-alike” were a categorical match. But the 7th Circuit said last week that a defense attorney does not need to forecast changes in the law. “Failure to object to an issue that is not settled law within the circuit is not unreasonable by defense counsel… A defense attorney’s choice not to make a potentially meritorious argument is not automatically deficient performance, even if it stems solely from a legal error.” 

Strickland holds that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” the 7th said. Strickland necessarily permits mistakes that are reasonable. Only when the defense attorney’s error is so appalling that he can no longer be considered “counsel” for his client is his performance deemed deficient… The giving of legal advice that later is proven to be incorrect, therefore, does not necessarily fall below the objective standard of reasonableness.

If an attorney declines to make an argument that no court has accepted and no other attorney has made, yet which later succeeds, it is doubtful the attorney’s omission was unreasonable under prevailing norms of practice. Otis’s lawyer did the necessary work, the 7th observed. “She researched the categorical approach arguments, found the applicable caselaw, and analogized that precedent to Otis’s case. When the caselaw provided no answer, she used statutory interpretation and relied on her extensive experience. She just reached a different conclusion than the Circuit did —a  conclusion on which reasonable minds could disagree.”

Elion v. United States, Case No. 24-3014, 2025 U.S. App. LEXIS 24770 (7th Cir. September 24, 2025)

~ Thomas L. Root

Bureau of Prisons Says ‘Union, No’ – Update for September 30, 2025

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BOP CANCELS UNION CONTRACT FOR 30,000 EMPLOYEES

The Federal Bureau of Prisons last Thursday canceled its collective bargaining agreement with Council of Prison Locals 33, the national union representing more than 30,000 of its 34,900 workers. Cancellation of the contract, which would have expired in 2029, makes BOP employees “the latest group to be targeted by the Trump administration’s effort to assert more control over the government work force,” according to the New York Times.

BOP Director William K. Marshall III told employees that the union “has a proud history of advocating for its members, and I want to acknowledge the positive contributions it has made over the years… But when a union becomes an obstacle to progress instead of a partner in it, it’s time for change. And today, thanks to President Donald J. Trump and Attorney General Pamela Bondi, we’re making that change. Today, I’m announcing the termination of our contract with CPL-33 effective immediately.”

Marshall said that workers would not be fired, suspended or demoted without cause or due process, and that their pay and benefits were guaranteed by law to stay in place. Nevertheless, he told Brandy Moore White, the union’s president, that employees no longer have a right to union representation during meetings with management, investigative interviews or other proceedings. Earlier this year, the BOP prohibited the deduction of union dues from employee paychecks, causing union membership to plummet.

Moore White said, “Don’t be fooled, this is not about efficiency or accountability — this is about silencing our voice… “The vast majority of our members are Republicans and voted for this president. I literally cannot explain to you how many messages I’ve gotten from them saying this is such a slap in the face. This man vowed to protect law enforcement, and this is what we get in return. They just feel so blindsided and so frustrated with how this is going.”

She said the union plans to take legal action and seek a Congressional remedy.

Although Trump’s Executive Order issued last spring to cancel government union contracts made use of a narrow legal provision that lets a president suspend collective bargaining for national security, Marshall’s  announcement made no mention of any national security concerns. Instead, he just said the agency was ending the agreement because it believed collective bargaining was a “roadblock” to progress.

John Zumkehr, president of AFGE Local 4070 at FCI Thomson, argued the cancellation increases what he said is an already high risk of suicide among BOP employees. “When you strip away the protections we’ve fought for, you endanger the well-being of every officer and undermine the entire system,” Zumkehr said. “Instead of standing behind us, the Bureau is tearing down the few safeguards we have left.”

Writing in Forbes, Walter Pavlo noted that the BOP “has often been criticized by advocate groups as not being responsive to implementing laws, such as the First Step Act and Second Chance Act. Both of these pieces of legislation were slow to be implemented with some blaming the union for the lack of progress.”

He quoted Rabbi Moshe Margaretten, president of the Tzedek Association, a group instrumental in the creation and passing of the First Step Act, “As someone who has spent years working closely with the Bureau of Prisons on reform, I can say without hesitation that the union has been one of the greatest obstacles to real progress. For too long, every new policy, no matter how commonsense or beneficial to staff and inmates alike, had to be dragged through an approval process where the default answer was ‘no’… This is a watershed moment — an opportunity to finally build a Bureau of Prisons that works better for the men and women who serve in it and for the country as a whole.”

New York Times, Federal Bureau of Prisons Ends Union Protections for Workers (September 26, 2025)

BOP, Director’s Message (September 25, 2025)

AFGE CPL-33, Bureau of Prisons Union Condemns Administration’s Attack on Workers’ Collective Bargaining Rights (September 25, 2025)

Federal News Network, Federal Bureau of Prisons terminates collective bargaining agreement with AFGE (September 26, 2025)

Associated Press, Federal Bureau of Prisons moves to end union protections for its workers (September 25, 2025)

Forbes, Bureau of Prisons Cancels Collective Bargaining Agreement With Union (September 26, 2025)

~ Thomas L. Root

Supreme Court Returns Today With ‘Long Conference’ – Update for September 29, 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.

‘LONG CONFERENCE’ SET FOR TODAY

The Supreme Court holds its annual “long conference” today (Monday, September 29th), a closed meeting at which the justices will consider the roughly 2,000 petitions for review that have built up since their last conference before their summer recess held last June.

Gregory Garre, who served as the US solicitor general 20 years ago, described it as the place “where petitions go to die.” Normally, a petition for cert has about a 1.1% chance of being granted review. “Long conference” petitions have about half of that.

So far, the court’s docket is only about half-full, leaving plenty of room for a flurry of new grants of certiorari for litigants. The court typically agrees to hear more cases from this conference than any other during the term. Still, Supreme Court petitioners prefer to avoid having their cases scheduled for the long conference due to the slightly worse odds of getting a cert grant than other times of the year.

The long conference is the unofficial start to the court’s new term, which by law officially begins on the first Monday in October. For the past two terms, the court has announced new grants on the Friday following the conference, before publishing its usual “orders list” consisting of cert denials (rejected cases) the following Monday.

A notable case to be considered tomorrow is that of Ghislaine Maxwell. She claims that a 20-year-old immunity agreement reached between the government of Maxwell’s associate Jeffrey Epstein covered her as well. The case, if heard, could be the first significant plea agreement case to come from the Supreme Court in over 60 years.

SCOTUSBlog, What is the Long Conference? (August 11, 2025)

 

National Law Journal, 12 Cases to Watch From Supreme Court’s ‘Long Conference’ (August 18, 2025)

~ Thomas L. Root

NACDL Releases Badly-Needed Federal Restitution Study – Update for September 26, 2025

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NO ONE CARES ABOUT RESTITUTION… UNTIL THEY DO

Neither fish nor fowl, restitution has long been considered to be remedial – intended to make victims whole – rather than punishment. And many defendants who receive a restitution order pay little attention to it because they are much more fixated on the amount they are getting the enormous amount they will be ordered to pay someday.

Unfortunately, someday always comes, leaving defendants struggling in many cases with restitution that has nothing to do with what they can afford, how much they made from the offense, or even the losses of the victims.

Last week, the National Association of Criminal Defense Attorneys published a report on federal restitution that was detailed, surprising, and insightful. The report found that $110 billion of federal restitution debt remains outstanding, with a full $100 billion of that being deemed “uncollectible.” The average amount of a federal criminal restitution order is more than $3.3 million, including not the “full amount” of a victim’s losses, but often includes calculations of pre-and post-judgment interest as well. In 30% of restitution orders, the victims incurred no loss but are entitled to repayment anyway.

Restitution hearings can be held after sentencing hearings, and not every circuit recognizes a defendant’s right to be present at those restitution hearings (although a pending Supreme Court case, Ellingburg v. United States, may have something to say about that). Courts do not have to apportion liability among defendants; when defendants are found “jointly and severally liable,” each defendant is legally responsible for the full amount of the victim’s losses.

Just last week, the 3rd Circuit ruled that a restitution order where the defendant had stolen from two gun stores was flawed because the stores were awarded the value of the guns and lost sales income from the guns as well.

The NACDL study recommended that Congress and the Supreme Court should recognize that a restitution hearing is part of the sentencing process and therefore is a “critical stage” in the criminal legal process at which the defendant has a right to be present, that because a sentencing is focused on incarceration, a separate restitution hearing should be required to specifically address how much restitution should be ordered and to whom.

The study also argued that federal restitution statutes should be amended to require judges to consider a defendant’s ability to pay, and when payment is ordered, defendants should only be required to reimburse actual losses. The study proposed that joint and several liability should be eliminated.

The chance for any constructive criminal justice legislation with this President and this Congress is minimal. Just last night, we saw the DOJ used on the direct order of the President to charge one of his political enemies. So don’t expect any defendant-friendly changes in the law any time soon, even if they make perfect sense.

Still, the 46-page study, well-crafted and meticulously documented, is worth the download.

NACDL, Empty Pockets and Empty Promises: How Federal Restitution Law Fails Everyone (September 16, 2025)

Ellingburg v. United States, Case No. 24-482 (oral argument October 14, 2025)

United States v. McCormack, Case No. 24-2500, 2025 U.S. App. LEXIS 24139 (3d Cir. September 18, 2025)

 

~ Thomas L. Root

Some Helpful Guidelines Amendment Guidance – Update for September 25, 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.

GUIDELINES ‘EXPLAINER’

Lebedin Kofman, a New York criminal law firm has published an online explanation of the Guidelines amendments that will take effect in less than 40 days. These changes – as we have repeated often – are not retroactive to anyone already in prison.

Still, knowing what those changes are may benefit people seeking compassionate release, other 18 USC § 3582(c) sentence reductions, or other resentencings.  Here are some highlights:

Departures: The most dramatic change eliminates the departure system that’s been in place for 37 years. LK says, “This isn’t just moving the furniture around; it’s tearing down the walls and rebuilding the house.”

There will still be departures for substantial assistance (USSG § 5K1.1) and early disposition programs (for aliens agreeing to quick deportation). However, the Guidelines system now will depend on calculating the base offense level and any adjustments, and then considering variances up or down under 18 USC § 3553(a), including the nature and circumstances of the offense and the defendant’s  history and characteristics. LK notes, “This requires more individualized presentations of mitigation evidence, which can actually work in your favor if your attorney knows how to leverage it properly.”

Drug offenses: For drug offenses, the amended Guidelines will focus on a defendant’s actual role in the offense rather than just the drug quantities involved. The Guidelines will now cap the drug quantity table at offense level 32 for defendants who receive mitigating role reductions under USSG § 3B1.2.

What’s more, new Guidelines commentary clarifies that § 3B1.2(a) minor reductions are “generally warranted” for defendants whose primary function was among the lowest levels of drug trafficking, including couriers, errand runners, message takers, lookouts, and defendants performing other low-level functions, such as distributing user-level quantities for little compensation or being motivated by intimate relationships or fear rather than profit.

LK said, “This is a game-changer for many defendants who previously got hammered with sentences based on drug quantities they had no real control over.”

Lebedin Kofmin, Federal Sentencing Reform: Major Changes Every Defendant Should Understand (September 10, 2025)

~ Thomas L. Root