We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
AMICUS BRIEFS SUPPORT USING HABEAS CORPUS TO ENFORCE FIRST STEP
In a post back when the summer lay ahead of us with such promise, I reported that the Supreme Court had granted review in Maxwell v. Thomas. Maxwell seeks to resolve a circuit split over whether an inmate can bring a 28 USC § 2241 habeas corpus claim against the Bureau of Prisons when the First Step Act time credits being denied to him would only give him more time in halfway house or home confinement.
Because some circuits view halfway house and home confinement as a mere change in prison designation while the prisoner remains in the custody of the BOP, they have held that habeas corpus – which they hold must seek release from BOP custody altogether – is unavailable to prisoners who are denied FSA credits to which they are otherwise entitled under 18 USC § 3632 or denied use of those credits for halfway house or home confinement otherwise allowed under 18 USC § 3624(g)(2). The Supreme Court has granted review in Maxwell to resolve the split among the circuits.
Last week, a blizzard of amicus briefs, from everyone from the National Association of Criminal Defense Attorneys to members of Congress, were filed in Maxwell supporting use of habeas corpus to enforce the right to FSA credits.
Rep Jamie Raskin (D-MD) – the ranking member of the House Judiciary Committee – filed a brief supporting use of habeas corpus to enforce the right to FSA credits. Raskin told the Court that Government Accountability Office “audits have unfortunately documented BOP’s systemic failures to properly apply time credits for prisoners participating in recidivism reduction programs and to track prisoners’ eligibility for transfer to pre-release custody. These failures do not merely inconvenience individual prisoners; they undercut the heart of the incentives-based programs that Congress believed would promote the rehabilitation of prisoners and reduce recidivism. Habeas relief is therefore an important backstop to enforce the system of incentives and rewards on which the success of the First Step Act’s programs hinges. A decision by this Court recognizing the availability of habeas to enforce prerelease transfer would further Congress’s historic, bipartisan objectives in the First Step Act of 2018: promoting rehabilitation and reducing recidivism.”
On the Senate side, Minority Leader Richard Durbin (D-IL) and Judiciary Committee member Senator Cory Booker (D-NJ) argued in an amicus brief that the Supreme Court had previously observed, “Congress clearly knows how to use mandatory language when it so desires [and] [t]he First Step Act’s system of earned time credits for federal prisoners is a perfect example. Congress eliminated the Bureau’s discretion about awarding earned time credits when statutory prerequisites have been met. The text and structure of the statute make this abundantly clear.”
Given that FSA passage was President Trump’s initiative and that it passed with a bipartisan supermajority, the amicus briefs explaining Congress’s intent and disappointment with BOP performance thus far are a helpful addition to the record.
Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)
Amicus Brief of Rep, Jamie Raskin, Case No 25-5930 (August 12, 2026)
Amicus Brief of Senators Richard Durbin and Cory Booker, Case No 25-5930 (August 12, 2026)
~ Thomas L. Root
