Tag Archives: trump

Getting Habeas Corpus ‘The Hell Out of Here’ – Update for May 13, 2025

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

HABEAS MABEAS?

The Trump Administration continues to underscore its dedication to constitutional rights.

canceldueprocess250513A week ago, President Trump was asked on NBC’s Meet the Press whether US citizens and noncitizens alike had 5th Amendment due process rights. “I don’t know,” the President replied. “I’m not, I’m not a lawyer. I don’t know.”

Trump said he has “brilliant lawyers… and they are going to obviously follow what the Supreme Court said.” He complained that he was trying to deport “some of the worst, most dangerous people on Earth… I was elected to get them the hell out of here, and the courts are holding me from doing it.”

In other words, what a President perceives to be his mandate trumps (no pun intended) constitutional protections.

Last Friday, White House deputy chief of staff Stephen Miller said that the White House is “actively looking at” suspending habeas corpus as part of the administration’s immigration crackdown:

Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.

alicewords250513Habeas corpus dates predates medieval English common law. It requires law enforcement to justify detaining people and produce those people before a judge so their cases can be reviewed. Federally, the right is exercised through 28 USC §§ 2241 and 2255. The Constitution’s Suspension Clause allows habeas corpus to be suspended only “in cases of rebellion or invasion [when] the public Safety may require it.”

Of course, the White House is suggesting that habeas corpus would be suspended only for immigrants here illegally. The problem is this: ICE sweeps up someone it says is an illegal immigrant. That person has no right to challenge the accusation before being whisked out of the country. My barber, a guy whose family has been in this country for at least 150 years, told me the other day that he didn’t see why illegal immigrants should have any constitutional protections whatsoever. My question to him was, “So what if ICE bursts into your shop and grabs you, alleging that you’re an illegal immigrant. What do you do then, if you can’t petition the court for a hearing at which ICE has to prove you’re not dyed-in-the-wool-American born-in-the-USA Bob the Barber?”

He thought about that but concluded, “No, they’d never do that.”

Right.

A suspension of habeas corpus would mean the Trump administration could detain people believed to be noncitizens without letting them challenge that detention or to deport noncitizen prisoners without giving them access to §§ 2241 or 2255 proceedings or to immigration courts.

dueprocess250513Habeas corpus has been suspended only four times in American history, and each time Congress has authorized the suspension. (In the case of the Civil War, President Limcoln suspended habeas corpus first, but Congress caught up with the Habeas Corpus Suspension Act, 12 Stat. 755 (1863), that authorized Lincoln’s suspension after the fact).

The National Constitution Center has observed that the Constitution is vague when it comes to “who in the government can suspend the writ of habeas corpus, but it is commonly believed that only Congress can do so,” Forbes said last week. “That means it’s likely Trump would face legal challenges if he decided to suspend the writ of habeas corpus on his own without Congress… but it remains to be seen how the courts could rule.”

habeasinvasion250513New York Times writer Maggie Haberman told CNN that the habeas corpus suspension proposal is an attempt to put the federal courts on notice: “Some of this might just be fear. A, it’s a way to intimidate the courts, which we have seen Trump and Stephen Miller do, a lot of, they’ve been criticizing judges routinely and repeatedly… It also might be to scare migrants and to get migrants to leave.”

Boston Globe, Trump, in a new interview, says he doesn’t know if he backs due process rights (May 4, 2025)

The Hill, White House ‘actively looking’ at suspending habeas corpus in immigration crackdown (May 9, 2025)

National Constitution Center, The Suspension Clause (2025)

Forbes, Stephen Miller Suggests Trump Administration Could Suspend Habeas Corpus To Detain Immigrants—Here’s What That Means (May 9, 2025)

The Hill, Haberman: Threat to nix habeas corpus just a way to ‘intimidate courts,’ ‘scare migrants’ (May 10, 2025)

– Thomas L. Root

A Nikola Truckload of Pardons – Update for May 9, 2025

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

CLEMENCY BAZAAR

Trevor Milton knew how to do it. The founder of the electric-truck maker Nikola Corp. was convicted of wire fraud in 2022 for a promotional video that purported to show its electric semi rig hauling a trailer but was really a prototype without any electroc motors that Nikola had recorded rolling downhill.

nikola250509Trevor applied for a presidential pardon, arguing that his trial was flawed by a biased juror, lousy jury instructions, and prosecutors bringing charges in the wrong venue.

Complaining about an unfair prosecution hardly separated Trevor from thousands of other federal prisoners unhappy about their convictions. But Trevor had more: he pointed out that the prosecutors were the same people who had previously investigated some of President Trump’s allies. And he prepared for seeking a pardon by donating almost $1.7 million to support Trump’s 2024 presidential campaign and hired two lawyers well-known in conservative circles to push for his pardon.

“All the effort appeared to pay off,” Bloomberg Law reported this week, when Trevor got a phone call. “[A]fter 30 seconds on hold, President Donald Trump got on the line and told Milton that he was going to grant him a full pardon.” A week later, Trump called him again to report “’[i]t’s signed. You’re cleaner than a baby’s bottom, you’re cleaner than I am, Trevor,’ Milton recalled” to Bloomberg.

The president “is effectively and responsibly using his constitutional authority,” White House spokesman Harrison Fields explained. “Over the past four years, we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.”

clemencyjack161229Some critics suggest that Trump is not righting wrongs as much as running a pardon bazaar. Gregg Nunziata, former general counsel for Marco Rubio when he was a senator and now executive director for the Society for the Rule of Law, told Roll Call that Trump’s actions are “deeply un-American.”

“From the first days in office, there has been a pattern in pardons, in personnel, in the policies of using the powers of government to reward the president’s friends and allies and punish his perceived enemies,” Nunziata said. “That is the rule of a man out for his own interest and that is an assault on the full protection of the law and notions of fair play that our society, our country, depend on.”

As for its role, the Dept of Justice – which is without a Pardon Attorney since the firing of Elizabeth Oyer over the Mel Gibson gun flap two months ago – is “committed to timely and carefully reviewing” all clemency applications and making unbiased, consistent recommendations to the president, according to a DOJ statement.

Milton said he filed for clemency with the DOJ Pardon Attorney in January. Bloomberg reported, however, that the pardon didn’t follow the normal DOJ review process.

President Joe Biden set a record for granting clemency during his term, handing out over 4,000 commutations but only about 80 pardons. The commutations went overwhelmingly to federal prisoners and people who fell within classes of convictions – primarily for marijuana possession – or for CARES Act home confinees. Biden received widespread and bipartisan criticism for preemptively pardoning his family and allies to prevent Trump from going after them criminally.

obtaining-clemencyTrump, on the other hand, has set a presidential record for granting pardons – 1,590 and counting – starting with the January 6th Capitol rioters and then expanding to include white-collar defendants, cryptocurrency entrepreneurs, and anti-abortion activists. Pardon recipients include “numerous others who praised him or served as a witness against political rivals, including former Illinois Gov. Rod Blagojevich… He also pardoned Devon Archer and commuted the sentence of Jason Galanis, former business partners of Hunter Biden who served as witnesses in the House probe against the former president,” Roll Call reported yesterday.

Trump has even extended his pardon efforts beyond the limits of presidential authority (which does not extend to pardons for state offenses). He posted on TruthSocial Monday night that has directed DOJ “to take all necessary action to help secure the release” of Tina Peters, a former Colorado local election clerk in Colorado who was sentenced to nine years in state prison last fall for her role in a voting system data breach, a failed attempt to find voter fraud from the 2020 election.

Last March, DOJ filed a statement of interest in Peters’ pending 28 USC § 2254 habeas corpus case pending in US District Court for the District of Colorado. The post-conviction action seeks federal review of the constitutionality of her state conviction. The DOJ claims that it is concerned about Peters’ health and allege that “[r]easonable concerns have been raised about various aspects of Ms. Peters’ case.”

The pace of Trump’s pardons eclipses the president in second place, Bill Clinton (396 pardons in eight years) and in the process has fostered a “breakdown in the traditional vetting process for deciding who gets relief and supercharged a pardon economy unlike anything seen before,” as Bloomberg put it.

As a result, people who can afford it are spending big to get their applications in front of Trump, devoting tens of thousands of dollars to fees for attorneys, lobbyists and consultants on the pardon process.

money160118“There’s a huge level of interest,” said  Margaret Colgate Love, who served as the US Pardon Attorney during the Clinton years and now represents clemency clients. “People think Trump is going to do something for them.”

Presidents from both parties have long used their authority to circumvent official process and dole out pardons to friends and supporters. The constitution puts almost no limits on the practice, though leaders typically wait until the end of their tenure to award clemency. Trump has announced clemency grants on a dozen occasions since he took office three months ago.

All of this is not good news for the ordinary federal defendant, let alone a prisoner who can afford a donation of several Honeybuns and a couple of soups to the Trump campaign. “It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” Oyer told Bloomberg.

A White House spokesman said Trump would work with the administration’s pardon czar, Alice Marie Johnson, to “continue to provide justice and redemption to countless deserving Americans.” Those with fat wallets and MAGA hats, that is.

Bloomberg Law, Lawyers Are Quoting $1 Million Fees to Get Pardons to Trump (May 7, 2025)

Roll Call, Pardons for friends, retribution for foes (May 7, 2025)

Democracy Docket, Trump Orders DOJ to ‘Secure the Release’ of Convicted Election Denier Tina Peters (May 6, 2025)

– Thomas L. Root

Escape From Alcatraz Fixation – Update for May 8, 2025

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

The Federal Bureau of Prisons is an agency with too little money, a $3 billion backlog of infrastructure repair needs, 4,000 fewer employees than needed, 143,000-plus prisoners in BOP facilities, and utterly chaotic management.

So what does the agency need more than anything right now? How about a mandate to rehab a prison with a 300-inmate capacity that was shut down for being too costly some 62 years ago.

intentions250508What a great idea! What could possibly go wrong?

In what the Associated Press called “a stunning directive from President Donald Trump,” the BOP was told in a Truth Social tweet last Sunday night to “REBUILD, AND OPEN ALCATRAZ!” — the legendary federal penitentiary that still stands on an island in San Francisco 62 years after it last imprisoned an inmate.

“Even as the Bureau of Prisons struggles with short staffing, chronic violence and crumbling infrastructure at its current facilities,” AP reported on Monday, “Trump is counting on the agency to fulfill his vision of rebooting the infamously inescapable prison known in movies and pop culture as ‘The Rock.’”

Alcatraz, the island located off the coast of San Francisco, was closed as a prison in 1963 and has since been turned into a museum run by the National Park Service, a tourist attraction generating about $6 million in revenue annually. The BOP closed the prison after determining that an estimated $3-5 million was needed just for restoration and maintenance work to keep the facility open. That’s $31-52 million in 2025 dollars, and that doesn’t account for deterioration over the past 62 years since closure.

The number also did not include daily operating costs. The BOP says Alcatraz was nearly three times more expensive to operate than other prisons. In 1962, BOP Director James Bennett said it was not an “economically sound policy” to invest millions of dollars to rehab Alcatraz. Housing an inmate in Alcatraz costs more than three times what it costs in Atlanta.

alcatraz250508On its website, the BOP says: “The major expense was caused by the physical isolation of the island – the exact reason islands have been used as prisons throughout history. This isolation meant that everything (food, supplies, water, fuel…) had to be brought to Alcatraz by boat. For example, the island had no source of fresh water, so nearly one million gallons of water had to be barged to the island each week.” Add to that staff costs: in San Francisco, federal pay would be adjusted for the sky-high cost of living in the Bay Area, which ranks 7th out of 9,294 metro areas on earth.

The BOP already has a “supermax” facility, ADMAX Florence, holding 354 inmates and 13 penitentiaries that together imprison over 17,200 high-security inmates. Alcatraz never even held its capacity of 336 inmates. 

At no time has the BOP argued it needs more high-security or ADMAX beds. In fact, the BOP’s sole new facility in the planning stages is a new medium-security prison in Letcher County, Kentucky.

None of the economics or agency needs analysis matters to President Trump. Rather, his idea to reopen Alcatraz is a reflection of his political instincts and personal tastes, even as it is a long shot to come to fruition.

Trump’s suggestion that Alcatraz could once again be a penitentiary for hardened criminals highlights both his efforts to project a tough-on-crime image and his fondness for cultural symbols of past generations:

violent160620For too long, America has been plagued by vicious, violent, and repeat Criminal Offenders, the dregs of society, who will never contribute anything other than Misery and Suffering,” Trump wrote on Truth Social. “When we were a more serious Nation, in times past, we did not hesitate to lock up the most dangerous criminals, and keep them far away from anyone they could harm. That’s the way it’s supposed to be.”

Trump’s nostalgia may be misplaced. He was recalling a time (1961) when the nation was incarcerating 119 people per 100,000 population. By last year, the state and federal government were locking up almost five times that number, 531 people per 100,000 population, the 6th highest rate in the world.

The facts are irrelevant. What matters is that Trump thinks Alcatraz is symbolic, that “it represents something. Right now, it’s a big hulk that’s sitting there rusting and rotting,” he told reporters. “It sort of represents something that’s both horrible and beautiful, and strong and miserable. Weak. It’s got a lot of qualities that are interesting.”

When Trump was asked what inspired him to reopen Alcatraz, he said, “Well, I guess I was supposed to be a moviemaker.”

Newly minted BOP Director William K. Marshall III promptly issued a statement enthusiastically supporting Trump’s call. He promised that the BOP “will vigorously pursue all avenues to support and implement the President’s agenda.

“I have ordered an immediate assessment to determine our needs and the next steps,” Marshall said in the statement. “USP Alcatraz has a rich history. We look forward to restoring this powerful symbol of law, order, and justice.”

williammarshall250508Good luck with that, Bill. The BOP needs $3 billion for infrastructure repair. It asked Congress for $260 million for Fiscal Year 2025. It got $179 million. Of the $3 billion needed to repair existing BOP facilities, Walter Pavlo wrote in Forbes last fall, “Spending at these levels is simply not going to happen.”

Earlier this year, BOP issued a memorandum to senior leaders that it had to take on more than $400 million in new expenses — due to a government-wide 5.2% pay increase for employees and inflation — without receiving any additional funding to cover it. While the agency said it should prioritize hiring, a corrections officer and union representative told Government Executive in October that workers “are leaving in droves” and “running from this agency” because of job strain.

Six weeks ago, the BOP cut all retention bonuses, meant to stop the loss of staff, especially correctional officers.

It doesn’t much matter what Billy says the BOP will “vigorously pursue.” The BOP is a NASCAR driver punching the accelerator on a car that’s out of gas.

Corene Kendrick, ACLU National Prison Project deputy director, dismissed Trump’s Alcatraz statement as a “stunt.” She told the Guardian, “I don’t know if we can call it a ‘proposal’, because that implies actual thought was put into it. It’s completely far-fetched and preposterous, and it would be impossible to reopen those ancient, crumbling buildings as anything resembling a functioning prison.”

policestate190603The Los Angeles Times warned that “it’s easy, as many quickly did, to write off this push to spruce up and fill up America’s most notorious prison-turned-national park as just bloviating or distraction. But like the sharks that circle that island in the Bay, the real danger of the idea lurks beneath the surface… Trump in recent weeks has moved to undo years of criminal justice reform. He is making changes that increase police power, signaling a push to refill federal prisons and detention centers with Black and brown people and curbing the ability of those impacted to seek redress in courts.”

The Times argued that reopening Alcatraz as a prison “is nostalgia for an America where power ran roughshod over true justice, and police were an authority not to be questioned — or restrained.”

Associated Press, The federal Bureau of Prisons has lots of problems. Reopening Alcatraz is now one of them (May 6, 2025)

The Hill, Trump’s call to reopen Alcatraz faces ‘daunting’ challenges (May 5, 2025)

NBC News, Trump’s call to reopen Alcatraz as a prison could be stymied by roadblocks (May 5, 2025)

The Guardian, Not just Alcatraz: the notorious US prisons Trump is already reopening (May 6, 2025)

BOP, The Rock

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2025)

Los Angeles Times, The real threat behind reopening Alcatraz (May 5, 2025)

– Thomas L. Root

Cash Registers Ringing for Presidential Clemency… Just Not For Uncle Sam – Update for May 5, 2025

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

PARDONS: CRIME AND DRAMA

theatremasks250505Former Dept of Justice Pardon Attorney Elizabeth Oyer last week claimed on social media that President Trump’s pardons of white-collar defendants have cost Americans $1 billion.

Oyer totaled the money that the pardoned people owed or might owe in restitution and fines. Some pardon recipients had not yet been sentenced, leading her to estimate the restitution that might be imposed. The pardoned people who had already begun paying restitution can now seek reimbursement from the government.

Oyer, who has been outspoken against the Trump administration since she was fired in March over her opposition to a DOJ decision to restore actor Mel Gibson’s gun rights, said “that the $1 billion figure highlights the unusually high number of Republican allies convicted of fraud and pardoned by Trump before they served their sentences.” She called that “a significant break from the traditional and often protracted pardon application process,” the Washington Post reported.

“It’s unprecedented for a president to grant pardons that have the effect of wiping out so much debt owed by people who have committed frauds,” Oyer said. “They do not meet Justice Department standards for recommending a pardon.”

Law360 reported last week that the spate of White House pardons is resulting in white-collar defendants being solicited by scammers who promise to influence White House connections to secure pardons and commutations in exchange for big fees.

clemencyjack161229The clemency pitches call for payments of hundreds of thousands or millions, “prey on the desperation of people serving or facing prison time,” some experts say. “Historically, seeking a pardon was seen as a low-percentage effort, something that would be very difficult to pursue as part of the defense strategy, except in the most obvious circumstances,” Joe Whitley, chair of law firm Womble Bond Dickinson’s white collar defense practice, told Law360.

One clemency pitch that a “consultant” recently sent to a bank fraud defendant called for payment of $155,000 a month for six months, along with an additional $1 million “success fee” once clemency was granted. The consultant claimed to have access to Trump at his Mar-a-Lago resort, according to the defendant’s lawyer. The defendant was also pitched a different clemency service for $3 million, including a $2.5 million success fee, for “advocacy with the Trump administration for a pardon and/or case dismissal,” Law360 said.

“Unfortunately, a lot of what’s going on and a lot of the decisions being made are setting up corruption — it’s making this all dependent on having access to people in power and charging money for that access,” one big law firm partner told Law360.

money240822A white collar sentencing consultant was quoted as saying that a typical clemency package costs about $40,000 to $50,000. Law firms might charge up to $200,000 for clemency work.

“Selling a guaranteed pardon because of a perceived relationship is a problem,” the consultant told Law360. “In my opinion, it’s gross negligence to say, ‘I can get the president of the United States to grant this clemency on your behalf’.”

Washington Post, Fired DOJ attorney says on TikTok that Trump pardons cost U.S. $1 billion (May 1, 2025)

Law360, Pardon Me? Why Offers To Secure Clemency Might Be A Scam (April 24, 2025)

– Thomas L. Root

The Short Rocket – Update for April 29, 2025

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

Today (and not just because Gayle King and Kate Perry came back to earth after their blasted-into-space celebrity stunt), here’s a short rocket of some stories you might have missed.

rocket190620

CASE SHORTS

fiore250429Who’s Getting Pardoned? The Associated Press reported last week that President Donald Trump pardoned Michelle Fiore, a Nevada Republican politician who was awaiting sentencing on federal charges that she embezzled $70,000 meant for a statue honoring a slain police officer.

Fiore spent the money on personal expenses, including a facelift. She has been released on her own recognizance ahead of sentencing next month.

AP said, “In a lengthy statement Thursday on Facebook, the loyal Trump supporter expressed gratitude to the president while also accusing the US government and ‘select media outlets’ of a broad, decade-long conspiracy to ‘target and dismantle’ her life.”

She’s right, of course: Such media dismantling is the easily foreseen consequence of stealing charitable contributions to finance one’s own lifestyle.

The White House confirmed the pardon without comment.

Meanwhile, former congressman George Santos, sentenced last week to 87 months for multiple frauds, publicly appealed to Trump to offer him “a chance to prove I’m more than the mistakes I’ve made.” Santos’s lawyers said the legal team would seek a presidential pardon — something that Santos himself had ruled out two days before his sentencing.

The Dept of Justice reports that the last dozen or so clemency grants are all of white-collar defendants, with a lone commutation of a defendant accused of opioid distribution in early March.

Associated Press, Trump pardons Nevada politician who paid for cosmetic surgery with funds to honor a slain officer (April 24, 2025)

The New York Times, George Santos’s Closing Act: A Prison Sentence of More Than 7 Years (April 26, 2025)

DOJ, Clemency Grants by President Donald J. Trump (2025-Present) (April 27, 2025)

rocket190620

Durbin Ending Senate Career: Senator Richard Durbin (D-IL), a mainstay on the Senate Judiciary Committee, is retiring at the end of his current Senate term in December 2026.

durbin191120Durbin has served on the Judiciary Committee for more than two decades, including as chairman from 2021 through 2024. He wrote the 2010 Fair Sentencing Act, which reduced the federal sentencing disparity for crack/powder cocaine offenses. In 2018, Durbin and Sen. Charles Grassley (R-IA) led bipartisan efforts to enact the First Step Act, the most significant criminal justice reform legislation in a generation. Since then, he and Grassley led efforts–not yet successful–to pass the Safer Detention Act, Prohibiting Punishment of Acquitted Conduct Act, and Smarter Sentencing Act.

Press Release, Durbin Announces He Will Not Seek Re-Election in 2026 (April 23, 2025)

Roll Call, Durbin’s run at Judiciary Committee focused on immigration, judges (April 23, 2025)

rocket190620

Angelos Meets With Johnson: Pardon recipient Weldon Angelos, founder of the criminal justice non-profit The Weldon Project, met with Pardon Czar Alice Johnson at the White House last Wednesday to discuss future clemency options.

marijuana160818Marijuana Moment reported last week that “[a]s the cannabis community continues to search for signs that the president will proactively engage on the issue after he endorsed [marijuana] rescheduling… the meeting between Weldon Angelos and the White House official signals at least some openness to the idea of acting on marijuana reform.”

Angelos said the meeting left him “feeling incredibly hopeful.”

Marijuana Moment, Marijuana Activist Pardoned By Trump Meets With White House Officials As Pressure Builds For Reform (April 25, 2025)

– Thomas L. Root

 

Is Trump’s Plan to Deport American Federal Prisoners Legal? – Update for April 21, 2025

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

ILLEGAL IMMIGRANTS SENT TO EL SALVADOR – ARE AMERICAN PRISONERS GOING NEXT?

CETMO250422While meeting with Salvadoran President Nayib Bukele in the Oval Office last week, President Trump said what he was thinking: “Homegrowns are next. The homegrowns. You gotta build about five more places [like El Salvador’s terrorist prison, CECOT]. It’s not big enough. We always have to obey the laws, but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters.”

“Yeah, we’ve got space,” Bukele responded.

Administration officials chuckled in the background. “I’m talking about violent people,” Trump had said a few minutes earlier. “I’m talking about really bad people.” Obviously, the only “really bad people” he could send – the only people over whom he could obtain custody to deport – are federal prisoners.

Attorney General Pam Bondi is reportedly considering legal mechanisms by which Trump could send American citizens to CECOT.

“It is pretty obviously illegal and unconstitutional,” Ilya Somin, a professor at George Mason University Law School, told NBC News.

americansflee250422Emma Winger, a lawyer at the nonprofit advocacy group American Immigration Council, said last week that the law that imbues the government with authority to deport people does not apply to US citizens. In fact, the British policy of removing people it alleged to be criminal from the colonies to be put on trial elsewhere was one of the grievances that led to the Revolutionary War 250 years ago.

“I can’t see how exiling someone is permissible as part of the bundle of rights that are fundamental to citizenship,” Anthony Kreis, a professor at Georgia State University College of Law, told NBC. “doubly so if the effort to house American citizens overseas means turning a person over to a foreign authority,” he added.

“The U.S. government has already deported someone to this prison illegally and claimed no recourse to get them back, so the courts must shut down this unconstitutional train wreck before U.S. citizens are unlawfully caught up in it,” David Bier, an immigration expert at the libertarian Cato Institute, told NBC News.

Very early on Saturday morning, the Supreme Court issued an extraordinary order even as more immigrant detainees were being bussed to waiting aircraft for a flight to a Salvadorean prison, directing the Government in terse language “not to remove any member of the putative class of detainees from the United States until further order of this Court.” This came after a government lawyer told a lower court that while no flights were planned for Good Friday, he couldn’t make any assurances about the weekend. NBC News later aired video of immigrants loaded on buses headed for a flight to El Salvador at o-dark-thirty on Saturday morning, providing ICE with a fig leaf (in that the departure did not happen on Friday, as the lower court had been assured).

In other Administration criminal justice news, 21 federal prisoners whose death sentences were commuted to life without parole by President Biden filed a lawsuit last Wednesday arguing that a Trump executive order that they be imprisoned in harsh conditions “consistent with the monstrosity of their crimes and the threats they pose” violates the 8th Amendment.

douglassdeathbondage250107In a complaint filed in U.S. District Court for the District of Columbia, the prisoners said that as a result of Trump’s order, “in defiance of the controlling statutes, regulations, and policies governing the BOP redesignation process,” Attorney General Pam Bondi “ordered BOP staff to engage in a new sham process that categorically predetermined that all Plaintiffs—regardless of what the statutory BOP redesignation process had determined—will be incarcerated indefinitely in the most oppressive conditions in the entire federal prison system…”

The President likes that “hopeless bondage” stuff.

Would Trump try to contract federal prisoners to overseas prisons? He has stated that he would like to. Would he try it? Judge for yourself from the Administration’s handling of the El Salvador deportations and deliberate attempts to make life imprisonment for former death-row prisoners especially punitive.

Reason, Homegrowns Are Next (April 15, 2025)

NBC News, ‘Obviously illegal’: Experts pan Trump’s plan to deport ‘homegrown criminals’ (April 14, 2025)

Slate, Alito’s Emergency Deportation Dissent Misrepresents the Most Crucial Fact in the Case (April 21, 2025)

Washington Post, They were on federal death row. Now they may go to a supermax prison. (April 18, 2025)

Complaint (ECF 1), Taylor v. Trump, Case No. 1:25-cv-01161 (USDC District of Columbia, April 16, 2025)

– Thomas L. Root

Trump Wants You Out of Here – Update for April 8, 2025

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

PRESIDENT TRUMP, THE PRISONER’S FRIEND

I get appreciative mail from admirers of my blog all the time. This one from a grateful prisoner came in last week. (Note: Whatever else my correspondent might be serving time for, it probably isn’t for being an English teacher):

I am rally getting sick of you woke shit.Trump trump Please tell me why you did not E-Mail us abought Biden pardoned Adam Shift who made up a Russian Coulson and played that shit on the hole country for 4 years. Your Nothing but a Dim Hack stop tooting waters and stick legal cases.

Today’s post probably will not raise this “Dim Hack[‘s]” stock with my grateful reader much, because I am failing to mention Joe Biden at all while I am “tooting waters” (whatever that means).

trumpfriend250408But the evidence is the evidence: Mr. Federal Prisoner, Donald Trump is not your friend.

You might think that President Trump would have a little more appreciation for how easy it is to become a felon in this country after his bumpy ride over the past four years. After all, he himself is still a felon – with 34 counts from which he cannot pardon himself – in New York State.

Trump claims he was wrongly accused and wrongly convicted. The appeals process is not over, so he may be right. Surely, a lot of people in federal prison feel the same way about their convictions, and you’d think the Prez might feel a little kinship with them.

But President Trump, it seems, has learned little from his four years in the criminal law desert. While he has no problem pardoning his sycophants and fellow travelers who racked up felonies while trashing the Capitol and assaulting cops in his name, he appears to remain contemptuous of people whose crimes of conviction may not have been committed in service to his glory.

Trump told reporters last Sunday that he would “love” to send federal inmates to the Terrorism Confinement Center (CECOT), El Salvador’s notorious mega-prison, but he first has to check with his legal people on whether he is allowed to.

CECOT250408While on Air Force One while en route back to Washington from Mar-a-Lago, Trump was asked whether he plans to pursue El Salvador President Nayib Bukele’s offer to house American prisoners. “Well, I love that,” Trump said. “If we could take some of our 20-time wise guys that push people into subways and that hit people over the back of the head and that purposely run people over in cars — if he would take them, I would be honored to give them.”

“I don’t know what the law says on that, but I can’t imagine the law would say anything different,” he said. “If they can house these horrible criminals for a lot less money than it costs us, I’m all for it, but I would only do according to the law.”

Imprison federal prisoners for “less money than it costs us.” That doesn’t sound like a President who wants to adequately fund the BOP for infrastructure repairs, full staffing, FSA programming, and halfway houses, now, does it?

Trump has already invoked the Alien Enemies Act of 1798, intended to detain and deport noncitizens during wartime, to expel 238 Venezuelan migrants to El Salvador, where they are being held in CECOT.

Bukele said in February that he had offered the United States “the opportunity to outsource part of its prison system. We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison… in exchange for a fee,” he wrote in a post on the X formerly known as Twitter.

sonice250408While touring CECOT in February, Secretary of State Marco Rubio praised Bukele’s offer to house federal prisoners, calling it “an extraordinary gesture never before extended by any country.”

It would be flatly unlawful to send federal prisoners, whether citizens or not, to a foreign prison. Under 18 USC § 3621, anyone sentenced to prison for a federal crime “shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624.” While noncitizens can be transferred to their home country under the treaty transfer program, 18 USC § 4107 requires that the prisoner consent to the transfer.

Newsweek, Donald Trump Says He Loves Idea of Sending Americans to El Salvador Prison (April 7, 2025)

The Hill, Trump on possibility of sending American inmates to El Salvador prison: ‘I love that’ (April 7, 2025)

USA Today, Trump on sending American prisoners to El Salvadorian prisons: ‘I love that’ (April 7, 2025)

– Thomas L. Root

‘Go Ask Alice – I Think She’ll Know’ – Update for February 24, 2025

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

TRUMP NAMES FORMER PRISONER ALICE JOHNSON ‘PARDON CZAR’

President Trump announced last Thursday that Alice Johnson, whose 1996 life sentence for a cocaine conspiracy was commuted in 2018, would serve as White House “pardon czar,” a position in which she will “advise him on criminal justice issues,” according to the NY Times.

goaskalice250224No one knows exactly what this position entails or its significance but having a White House liaison responsible for clemency issues and who has the President’s ear is unprecedented in modern times. Still, many federal prisoners are starting to think that Jefferson Airplane had it right in “White Rabbit” when it advised, “Go ask Alice – I think she’ll know.”

After Kim Kardashian talked Trump into commuting Johnson’s sentence, Johnson initially convinced Trump to grant clemency to a couple of her FCI Aliceville cellies. Later, at Trump’s request, she suggested the names of people to receive clemency at the end of his first term.

The New York Times reported that in announcing her appointment, Trump said Johnson “would be advising him on cases of people convicted of nonviolent crimes who had gotten sentences not likely be handed down today. Ms. Johnson’s case was seen as an example of draconian sentencing laws that disproportionately affected nonviolent offenders, particularly women and members of minority groups.”

Trump told reporters that “Alice was in prison for doing something that today probably wouldn’t even be prosecuted.” That’s probably not quite correct: Her indictment, which named 16 defendants, described Alice as a leader in a multi-million-dollar cocaine ring, and detailed dozens of drug transactions and deliveries. At sentencing, her judge said she was “the quintessential entrepreneur” in an operation that dealt in 2,000 to 3,000 kilos of cocaine, with a “very significant” impact on the community.

second170119Still, Johnson’s post-sentencing record was exceptional, and her work since her release seven years ago has been tireless. “Alice Johnson has been a relentless advocate for second chances, and her own story is a testament to the power of redemption,” Weldon Angelos, another Trump clemency recipient and founder of the criminal justice organization The Weldon Project, told Marijuana Moment last week.

The Times said that Johnson’s appointment illustrates how Trump’s

approach to criminal justice reform is rife with contradictions. He signed the bipartisan First Step Act, which aimed to reduce prison sentences for certain nonviolent drug crimes, during his first term, then told advisers privately soon afterward that he regretted it, according to multiple officials working with him at the time… During his 2024 campaign, he called for shooting thieves who steal from drugstores and for the death penalty for drug traffickers and dealers. Then, in one of his first acts as president in his second term, he issued a grant of clemency to all of the nearly 1,600 people charged in connection with the attack on the Capitol on Jan. 6, 2021 — violent and nonviolent alike.”

Angelos, however, is focused on the appointment rather than the President’s record on criminal justice. “The creation of a pardon czar position is a significant step in prioritizing clemency and criminal justice reform,” he said, “signaling a commitment to addressing injustices in the system and ensuring that mercy is applied more fairly and efficiently.”

MSNBC complained, “It’s not clear that this position will have real power. Ultimately, the president determines who receives pardons, so it’s possible this role will have as much actual authority as Trump’s Diet Coke retriever. But it seems pretty obvious what he’s after with this stunt. Trump has perverted the pardon process, most glaringly with his pardons of violent insurrectionists who stormed the Capitol on Jan 6. And now he has made a sympathetic figure the face of that process.”

alicesrestaurant250224Prisoners and their loved ones are wondering how Johnson’s appointment might upend the current clemency system, which has been characterized over the past decade by Byzantine review procedures while thousands of petitions gathered dust in the DOJ Office of Pardon Attorney. Must a commutation petition still begin with a filing with OPA? Will clemency petitions now be routed directly to Johnson’s White House office?

No one knows. However, a Substack blogger on healthcare already has solicited people to contact Johnson to urge that a father and his sons convicted of selling toxic industrial bleach as a fake COVID-19 cure through their online church be pardoned.

New York Times, Trump Names ‘Pardon Czar’ to Advise on Clemency (February 21, 2025)

New York Times, Trump May Name a Woman He Once Pardoned to Be His ‘Pardon Czar’ (February 18, 2025)

Marijuana Moment, Trump Confirms He’s Appointing Former Drug Prisoner He Freed As New ‘Pardon Czar’ (February 20, 2025)

MSNBC, In ongoing stunt, Trump names Alice Johnson his ‘pardon czar’ (February 21, 2025)

Robert Yoho, Surviving Healthcare (Feb 22)

– Thomas L. Root

Trump Executive Order Hints At Felon-In-Possession About Face – Update for February 10, 2025

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

PRESIDENT (AND FELON) TRUMP MAY CARE ABOUT § 922(g)(1)

OK, President Trump is a convicted felon. But millions of Americans know how easy it is to end up with that label.

Because Trump is now a guy surrounded by men and women with guns but not himself allowed to touch one due to 18 USC § 922(g)(1) – the felon-in-possession statute – I have been speculating for a few months about whether his personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

Trumpgun250113The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that swirling around the F-I-P statute will reach the Supreme Court sooner rather than later. Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession.

trumpglock45250210Last Friday, Trump issued an executive order that strongly hints that the DOJ will soon be changing its views. The EO directed Pam Bondi, the new Attorney General, to “examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens and present a proposed plan of action to the President… to protect the 2nd Amendment rights of all Americans.” The EO specifically orders her to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their 2nd Amendment rights.”

This does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range. But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

White House, Executive Order: Protecting Second Amendment Rights (February 7, 2024)

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)

– Thomas L. Root

Boys Might Still Be Girls – Update for February 3, 2025

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

TRANSGENDERISM ISN’T DONE GASPING

corso170112Last Thursday, I wrote the obituary for the Federal Bureau of Prisons transgender policy. As Lee Corso (whose prognostications haven’t been so hot lately, having picked Texas over Ohio State in the CFP semifinal and Notre Dame over the Buckeyes in the championship game) might correctly say, “Not so fast, my friend”).

Only a few hours after my post, a federal district court in Massachusetts unsealed a case filed the prior Sunday and issued a temporary restraining order on behalf of an unnamed transgender male-to-female inmate ordering the BOP not to move the plaintiff to a male prison or deny him access to transitioning drugs and surgery.

The plaintiff claimed the impending transfer to a men’s prison violates the 8th Amendment prohibition against cruel and unusual punishment and deprives him of transitioning healthcare in violation of the Rehabilitation Act of 1973.

At the same time, three transgender male-to-female federal prisoners sued last Thursday in Washington, D.C., to block Trump’s order. Their attorneys said they had all been placed in their facilities’ Special Housing Units (“SHUs”) in preparation for transfer to a male prison but had later been returned to general population, although they have been warned they still face imminent transfer.

angrytrump191003The complaint argues Trump’s order was driven by “hostility towards transgender people.” President Trump hostile toward a particular group of people? Hard to imagine…

In my prior post, I noted that on January 25, 2025, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. Lucky I checked when I did: that information, however, was purged from the BOP website last Friday, along with any use of the g-word (gender). The BOP web page originally titled “Inmate Gender” was relabeled “Inmate Sex” on Friday.

Meanwhile, the parties in the Fleming v. Pistro litigation asked for and got more time to set out their position on whether the case was mooted by Trump’s order.  At the same time, a transgender male-to-female inmate – one Peter Langen (who now goes by the name “Donna”) – moved to intervene in the Fleming litigation. Langen complained that Rhonda Fleming

has already filed a similar case against transgender prisoners herself and by proxy. The Movant is being unduley burndened [sic] by this Plaintiff once more, it is only fair to allow the Movant a seat at the table when issues that directly impact’ her and other similarly situated Movants.

The Movant as a prisoner in the same prison system that the plaintiff was in (Plaintiff now resides in a Halfway house) and as a person who has been falsely accused of misconduct by this Plaintiff I am in a unique position to give input to this Court as a trier of the facts in this case.

denied190109The Court was not impressed, denying the motion in a terse order holding that the 11th-hour (maybe 12th hour) motion arrived after he had decided the case: The Court ruled that the “case applied only “to Ms. Fleming. Accordingly, Ms. Langan has no right to intervene. Likewise, permissive intervention is also inappropriate, especially given that this Court has already entered judgment.”

Order Following Bench Trial (ECF 176), Fleming v. Pistro, Case No. 4:21-cv-325 (January 17, 2025)

Order Denying Motion to Intervene (ECF 180), Fleming v. Pistro, Case No. 4:21-cv-325 (January 28, 2025)

White House, Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

Reuters, Transgender inmate sues over Trump’s order curtailing LGBT rights (January 27, 2025)

WUSA-TV, Transgender inmates sue to block Trump order that would force move to men’s prison (January 31, 2025)

Associated Press, Health Data and Entire Web Pages are Wiped From Federal Websites (January 31, 2025)

– Thomas L. Root