Tag Archives: FIRST STEP Act

Bureau of Prisons Slipping on ICE – Update for November 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.

THAT GIANT SUCKING SOUND…

Remember H. Ross Perot? During his unsuccessful third-party bid for president in 1992, he warned that the “giant sucking sound” we all heard was the sound of jobs going to Mexico.

It turns out that Bureau of Prisons director William K. Marshall III is hearing one of his own, the sound of BOP correctional officers quitting for the gold-plated working conditions of Immigration and Customs Enforcement.

Last week, Pro Publica reported that “ICE has been on a recruiting blitz, offering $50,000 starting bonuses and tuition reimbursement at an agency that has long offered better pay than the federal prison system. For many corrections officers, it’s been an easy sell.”

By the start of November, the BOP had lost at least 1,400 more staff this year than it had hired, according to ProPublica. “We’re broken and we’re being poached by ICE,” one union official told ProPublica. “It’s unbelievable. People are leaving in droves.”

The exodus comes amid shortages of critical supplies. Staffers told Pro Publica that some facilities had even stopped providing basic hygiene items for officers, such as paper towels, soap and toilet paper.

Fewer corrections officers result in more lockdowns, less programming, fewer health care services for inmates, greater risks to staff, and more grueling hours of mandatory overtime. Prison teachers and medical staff are being forced to step in as corrections officers on a regular basis.

In a video posted last Wednesday afternoon, Deputy Director Josh Smith said that the agency was “left in shambles by the previous administration” and would take years to repair. Staffing levels, he said, were “catastrophic,” which, along with crumbling infrastructure and corruption, had made the prisons less safe.

He also frankly appraised the agency’s approach to the First Step Act:

The First Step Act was sabotaged by the Biden DOJ and BOP.  They have mismanaged millions meant for FSA implementation – building a time credit calculator that has never worked right – and FSA programming required by the law never materialized. Instead, they hired an outside contractor that blocked every outside program submitted by some of the most impactful faith-based organizations. They only approved internal BOP classes, and, despite spending hundreds of millions of dollars, the BOP still only added 100 halfway house beds in six years… all while reentry services division lost over 90 critical positions.

They diverted hundreds of millions of First Step Act funding into non-FSA programming and unrelated projects that they just labeled ‘FSA.’ This mismanagement squandered taxpayer money and undermined public safety. Lockdowns and collective punishment have become knee-jerk reactions… BOP has been consistently voted the worst place to work in all the federal government… This is the hand that we’ve been dealt, a Bureau on the brink scarred by decades of failure…

The so-called One Big Beautiful Bill Act, signed into law on July 4th, could offer some financial support for the agency’s staffing woes, as it will route another $5 billion to the BOP over four years — $3 billion of which is specifically earmarked to improve retention, hiring and training. Yet exactly what the effects of that cash infusion will look like remains to be seen: Pro Publica reported that the “Bureau declined to answer questions about when it will receive the money or how it will be spent.”

Pro Publica, “We’re Broken”: As Federal Prisons Run Low on Food and Toilet Paper, Corrections Officers Are Leaving in Droves for ICE (November 20, 2025)

BOP, Video Message from the Deputy Director: A Bureau on the Brink (November 19, 2025)

~ Thomas L. Root

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

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

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

Front-End Loader – Update for October 28, 2025

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

BOP ANNOUNCES IT WILL FRONT-LOAD FSA TIME CREDITS

The government shutdown is entering Day 28 with no end in sight. But not everything at the Bureau of Prisons has ground to a halt. Last week, the agency announced a technical change in how it calculates the end of a prisoner’s sentence that could have a major, beneficial effect on inmates.

The date of a prisoner’s release is significant to the BOP for everything from placement in an appropriate facility to eligibility for programs to the date a prisoner goes to a halfway house or home confinement under 18 USC § 3624(c) (the Second Chance Act). The BOP has always calculated what it calls the “statutory” sentence by assuming that the prisoner will earn every day of good-conduct time (54 days a year) possible under 18 USC § 3624(b).

Of course, prisoners do not always earn every day of good time. They lose it for rule infractions (something that may be epidemic with the number of cellphones in the system, where being caught with one is a high-severity prohibited act).

The fact that inmates may lose good-conduct time during their sentences has never deterred the BOP from its practice of assuming that a prisoner will earn 100% of possible good time. Nothing wrong with that: it’s a rational policy that makes release planning possible. But until now, the BOP has steadfastly refused to make the same reasonable assumption that a prisoner will earn all of the First Step Act credits (FTCs) available to him.

Last week, BOP bowed to common sense, announcing that it will now anchor its inmate management decisions to a new metric called the FSA Conditional Placement Date (FCPD), essentially front-loading FTCs in the same way it front-loads good conduct time.

Up to now, the BOP has only used a Projected Placement Date that reflected the credits earned up to the date of the PPD’s calculation, while not assuming that the prisoner would earn any FTCs after that date. The new FCPD date will assume that an inmate will continue earning FTCs every month, just like good conduct time, and will thus represent the projected point when an inmate — based on earned time credits — should be eligible for placement in halfway house or home confinement, or released. The BOP will now direct staff to use the FCPD date as the foundation for decisions about security/custody classification and facility placement.

“It’s a small technical change on paper but a major cultural shift in practice,” Walter Pavlo wrote last week in Forbes. “By using this date to guide decisions, the Bureau is effectively saying that the earned time credits aren’t just theoretical—they are the organizing principle for how and when people move through the system.”

Use of FCPDs should lead to faster inmate placement at lower custody levels and placement in programs such as the residential drug abuse program.  Pavlo said that one BOP insider estimated that over 1,500 people would be eligible to move from low-security facilities, which are near capacity, to minimum-security camps that have ample space. Additionally, reliance on FCPDs will alleviate last-minute transfers to halfway house or home confinement, which cause delays in paperwork and inmate housing arrangements. As Pavlo put it, “By focusing on the Conditional Placement Date months in advance, everyone gains time to prepare.

The FCPD change should ensure that FTCs have real meaning, connecting prisoner success to the date on an inmate’s worksheet for prerelease planning. “This change reflects our continued commitment to managing the inmate population in a way that is both fair and consistent with the law,” said Rick Stover, Special Assistant to the Director. “By using Conditional Placement Dates, we are improving operational efficiency, supporting our staff, and honoring the intent of the First Step Act.”

Rabbi Moshe Margaretten, President of the prison-reform advocate Tzedek Association, called the development a “truly monumental” moment for prison reform. “This reform will change thousands of lives—allowing men and women who have worked hard to better themselves to move into lower-security settings and reconnect with their families much earlier.” 

BOP, A Win for Staff and Prison Reform (October 21, 2025)

Forbes, Bureau Of Prisons Makes Changes To First Step Act Calc (October 21, 2025)

Belaaz, Major Bureau of Prisons Reform After Years of Advocacy by Tzedek, ‘Monumental Step’ (October 21, 2025)

 

~ Thomas L. Root

6th Extends Section 404 Reduction to Sentence Packages – Update for October 21, 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.

A “PACKAGE” DEAL

“Best Friends” sounds like a warm and cuddly name for a gang, more like a gaggle of 6-year-old girls back in the 1980s swapping Cabbage Patch Kids. But the 1980s and 1990s Motor City’s “Best Friends” gang was a little more into drug distribution, for-hire murders and drive-by shootings than ugly-faced little dolls with birth certificates.

In 1995, four of the principals were convicted of conspiracy to distribute crack cocaine, possession of crack, and several counts of intentional killing in furtherance of a continuing criminal enterprise in violation of 21 USC § 848(e)(1)(A), with a few 18 USC § 924(c) use-of-gun counts tossed in for good measure. The four besties were all convicted and received life sentences.

After the First Step Act was passed, the four filed for sentence reductions under Section 404, which allowed for retroactive application of the Fair Sentencing Act’s reduction in statutory punishments for crack cocaine offenses. After a tortuous trek through the district court to the court of appeals and back again, the U.S. District Court for the Eastern District of Michigan deemed the four amigos eligible for a Section 404 reduction. After a 2022 hearing, the district court reduced their sentences for the drug conspiracy and homicide convictions from life imprisonment to various terms of years.

The government appealed, and last week, the 6th Circuit reversed and remanded.The Circuit rejected the District Court’s interpretation of Section 404 that would allow unlimited resentencing authority for any offense if a covered offense happened to also present. The 6th concluded that such a reading of the section did not align with the First Step Act’s purpose of resentencing “as if sections 2 and 3 of the Fair Sentencing Act were in effect.”

After all, the 6th reasoned, even if the Fair Sentencing Act had been in force when the four best friends were sentenced in 1998, the homicide life sentences under § 848(e) would still have been permitted independent of the crack possession and conspiracy convictions.

The “sentencing package doctrine” recognizes that sentencing multiple counts is an inherently interrelated, interconnected, and holistic process, and that when an appellate court vacates a sentence and remands for resentencing, the sentence becomes void in its entirety and the district court is free to revisit any rulings it made at the initial sentencing. In this case, the 6th held that when sentences are interdependent or form a ‘package,’ modifying one sentence may require reconsideration of the entire sentencing scheme to maintain the court’s original sentencing intent. Finding that the ‘sentencing package‘ doctrine is consistent with First Step Section 404’s text and context, the Circuit vacated everyone’s resentencings and remanded for the District Court to determine whether each defendant’s homicide sentence was part of a ‘sentencing package’ with the covered crack drug offense.

The holding aligns with decisions by the 4th and 7th Circuits.

United States v. Dale, Case No. 23-1050, 2025 U.S. App. LEXIS 26682 (6th Cir. October 14, 2025)

~ Thomas L. Root

BOP Would Walk 500 Miles… – Update for October 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.

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

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

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

BOP 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

The 65% Law (And Other Silliness) – Update for September 18, 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.

EASTER BUNNY SAYS 65% LAW GOES INTO EFFECT ON NOVEMBER 1ST

I would say the silly season is upon us, but that would wrongly imply that it ever left.

Last week, I had a half-dozen questions about changes in the First Step Act to provide relief to people with gun convictions under 18 USC § 924, about how the Armed Career Criminal Act’s drug predicates are changing, and – of course – how the long-anticipated “65% law” is about to go into effect. And every one of the questions said the same – it’s all happening on November 1st.

I repeat what has become my annual myth-busting ritual over the past decade:

  • No Guideline amendment becoming effective on November 1st will apply to anyone who has already been sentenced (that is, become retroactive). This is unfortunate, because the amendments represent fundamental changes that alter how judges impose sentences, manage post-conviction supervision, and evaluate requests for sentence reductions. But the sad fact is that the Commission proposed retroactivity for a few of the changes and then failed to adopt it for any of this year’s slate of changes.

And what will Congress do? Well, yesterday, the House passed H.R. 5140, lowering the age for which youth offenders in the District of Columbia can be tried as adults for certain criminal offenses, changing the threshold to 14 years of age. The Hill reports that “Republicans are set to vote on several other bills relating to D.C. crime later this week as they carry on President Trump’s crusade against crime in the nation’s capital after his 30-day takeover of the city’s police force expired.”

It’s a safe bet that no one in Congress has the stomach to pass any bill that will ease criminal laws or help prisoners.  The crusade, as The Hill described it, is against crime, not for crime.

  • This means that 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 their time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off. Nothing, nada, zilch, bupkis.

As the Federalist – commenting on the mentally ill suspect accused of stabbing a Ukrainian immigrant to death last month in Charlotte, North Carolina – said last week, “Instead of buying into the dangerous lie that mass incarceration doesn’t work, we should be building more prisons and sending violent criminals there for lengthy sentences… What we’ve been doing for years now is dangerous and morally indefensible. Releasing violent criminals onto the streets, as White House deputy chief Stephen Miller said Tuesday, is a ‘form of political terrorism’ — perpetrated by Democrat elected officials against the people who live in their jurisdictions.”

Do these people sound like they’re interested in any common-sense criminal justice reform? Is there an Easter Bunny?

I am sure that I will have to write this again next year.  And the year after that.  And the year after that. Ad infinitum.

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Federalist, We Need To Bring Back Mass Incarceration And Involuntary Commitment (September 10, 2025)

~ Thomas L. Root

Trump Seeks Crime Reform… And It’s Not First Step Act 2.0, Either – Update for September 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.

GOOD NEWS AND BAD NEWS
McTrump the Crime Dog

President Trump said last Wednesday that Republican leaders in Congress were working with him on a “comprehensive crime bill” in what the New York Times called “his latest effort to push the issue of crime to the foreground of American politics.”

“It’s what our Country needs, and NOW!” Trump said on his Truth Social platform. “More to follow.” He said both House and Senate Republican leadership were working on the bill, but he offered no details.

A new crime bill would normally be a welcome opportunity to amend the First Step Act, especially to address the Federal Time Credit program. However, the bad news is that Trump does not appear to have a crime bill of that kind in mind.

Targeting what he calls “out of control” crime was central to Trump’s 2024 presidential campaign, although US crime is near its lowest level in decades. He has raised the issue in the last two months, with the deployment of National Guard in Washington DC to allegedly control crime there.

Politico reported last week that Trump’s latest comments have puzzled Republicans on Capitol Hill, who don’t know what “comprehensive” measure the president is talking about. Trump discussed extending his control over the DC police with House Speaker Mike Johnson (R-LA) last Tuesday. The House Oversight Committee, which has jurisdiction over DC issues, plans to advance some bills this month to crack down on juvenile crime, reform the education system, and unwind certain policing policies. However, Politico notes, “it’s the Judiciary Committee that would have to advance any crime-related bills that are national in scope.”

Trump ramrodded First Step through Congress in 2018. But running in 2024, Trump distanced himself from his own achievement, barely mentioning FSA on the campaign trail. In 2023, Florida’s governor and a rival presidential candidate, Ron DeSantis, attacked FSA as a “jailbreak bill” and pledged to repeal it.

And while Trump did appoint Alice Marie Johnson, a woman he pardoned in 2020, as pardon czar soon after returning to the White House, “he doesn’t appear eager,” the New York Times said last week, “to remind voters of his criminal justice reform measures… Instead, Trump is pushing for tougher sentencing, including against minors.”

“They’re children, but they’re criminals,” Trump said at last Tuesday’s marathon Cabinet meeting as he turned to his attorney general, Pam Bondi. “We are getting that changed, Pam, I hope, because you have 14-year-old kids that are evil, they’re sick, and they have to be put away.”

At the same meeting, Trump said he wants to see the death penalty imposed on every person convicted of murder in DC. “If somebody kills somebody in the capital, Washington, D.C., we’re going to be seeking the death penalty,” Trump said. “And that’s a very strong preventative.”

Trump appointed Fox News commentator Jeanine Pirro as US Attorney for the District of Columbia after even Republicans refused to confirm firebrand Ed Martin for the post. Pirro has talked a tough game in support of Trump’s theme that DC crime is out of control, demanding that her prosecutors bring the harshest charges allowable, even for minor infractions. Now, Salon reported this past weekend, “her aggressive posture is colliding with real-world constraints, exposing both her limitations and the fragility of politicized law enforcement.”

Pirro recently revealed that she is getting help from military lawyers, because her office is short 90 prosecutors and 60 investigators and paralegals. DC federal courts, which normally process about six new criminal cases per week, now face six or more cases per day, many stemming from low-level offenses that would’ve been diverted or even dismissed previously.

The increase in workload may be unique to DC, but the staffing is not. According to reports I have received, seasoned AUSAs and support staff have been resigning from US Attorneys’ offices around the country. One federal defense attorney told me last week that the quality of work and responsiveness of AUSAs in his district, the Southern District of Ohio, has fallen dramatically since January. “It’s hard to get a call back,” he said.

Salon said last week, “It’s clear that Pirro’s [charging] directives are unsustainable.” With so many people around the country heading for the exits, US attorneys’ offices may be unable to execute on a harsh new crime bill, even if one passes. That does little to address the bad news that an opportunity to reduce recidivism even more by tweaking FSA – and helping prisoners in the process – may be lost in the tough-on-nonexistent–crime posturing.

Writing in Sentencing Law and Policy last week, Ohio State University law professor Doug Berman observed that “[a] decade into the Trump era, I have learned not to take too literally or too seriously what Donald Trump says on social media.  But given that Prez Trump and his GOP allies are viewing crime fighting and crime policy as a winning political issue (and also that Democrats are struggling with a response… new political talk of a new “Comprehensive Crime Bill” makes lots of sense… But, of course, the devil is in the details when it comes to enacting big new federal legislation and in navigating the modern politics and policy-making of crime and punishment.  The First Step Act was truly the culmination of decades of federal criminal justice reform debates, and it is unclear what sets of criminal justice proposals will get enough support in Congress to get to the desk of the President. (I assume a crime bill would not find a way to be immune from the Senate filibuster, so at least 60 Senate [votes] would seem to be a necessity for any bill.)”

New York Times, Trump Says Republicans Are Working on a ‘Comprehensive’ Crime Bill (August 27, 2025)

Politico, Republicans scratch their heads over Trump’s ‘comprehensive’ crime bill (August 27, 2025)

New York Times, In Trump’s 2nd Term, More Incarcerations, Less Talk of Reform (August 27, 2025)

Washington Post, Trump wants expanded death penalty, longer control over police in D.C. (August 26, 2025)

Salon, Fox News star’s jump to the Trump administration is backfiring (August 31, 2025)

Sentencing Law and Policy, Is it too early to speculate about what could be in a new “Comprehensive Crime Bill”? (August 27, 2025)

~ Thomas L. Root