FCI Dublin, Perfect Place To Abuse ICE Detainees – Update for May 15, 2026

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PRISON FOR SALE

The BOP has issued an environmental assessment of the now-closed FCI Dublin, marking the first step in transferring it to the General Services Administration, a federal agency that manages government-owned assets, spurring concern by advocates that GSA may give the prison to Immigration and Customs Enforcement for a detention facility.

The GSA will make a final determination on what to do with the Dublin site — including whether to hand it over to another interested federal agency.

Dublin’s City Council and the Alameda County Board of Supervisors have also both passed resolutions opposing reopening or repurposing the site for any detention or correctional use in the future, citing staff misconduct and dangerous infrastructure issues.

“There can be no doubt about the will of the people. We do not want an ICE detention facility in our community,” said the Rev. Kelly Miller-Sanchez, the pastor of Resurrection Lutheran Church in Dublin. “FCI Dublin is a site where horrific human rights abuses occurred. It is stained with the blood of its survivors, and it is a blot upon the history of our beautiful city. Turning this site into an ICE detention facility would compound the injuries, both physical and moral, that this site has already caused.”

Former FCI Dublin prisoner Aimee Chavera was one of the plaintiffs who got $116 million from the BOP in a suit over their treatment at the “Dublin Rape Club,” as the prison was known among staff. She told KQED that when she worked in the prison safety department, staff forced her and others to paint over mold and rust before inspections. She also worked in Health Services mopping up blood and washing the rags in the same machines as clothing for the other women, with no bleach or disinfectant. She recalled women trying to kill themselves, saying, “It went through my mind. Why? Because you cannot live under these conditions.”

“I’m a U.S. citizen and my rights were violated and I was abused,” Chavira said. “What does it tell you? That these immigrants are going to be abused, which is not right.”

KQED, Advocates Urge Demolition of FCI Dublin, Raising Worries It Could Become ICE Jail (May 5, 2026)

American Prospect, ICE Wants to Reopen the Crumbling Federal Prison Dubbed ‘Rape Club’ (May 7, 2026)

~ Thomas L. Root

Circuit Courts Tend to Get in Line – Update for May 14, 2026

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SINGING FROM THE SAME SHEET OF MUSIC

Everyone knows that a decision by one circuit’s court of appeals does not bind other circuits. In fact, differences among the circuits – known as a “circuit split” – is one way issues get to the Supreme Court. Still, the decision of one circuit may influence another circuit that has not yet addressed the issue. For this reason, decisions of other circuits are referred to as “persuasive authority.”

But how persuasive? In a Southern California Law Review article being published soon, Georgetown University Law Center professor Amy Griffin questioned how much deference circuit judges give “peer circuit precedent” – that is, decisions by circuit judges in other circuits – despite not being bound by it. 

Professor Griffin analyzed roughly 800 cases across federal appeals courts in 2022 and 2023 in addressing issues of first impression in that circuit. She tracked whether existing sister circuit precedent existed and whether the deciding court agreed with it or not. When only one prior circuit had ruled on a first-impression issue, the new, deciding circuit agreed with that peer precedent 84% of the time. But once two circuits ruled the same way, agreement jumped to 97%. And once three or more circuits were in agreement, the new court agreed essentially 100% of the time.

The lesson, Professor Griffin observed, is that the first circuit to decide a question had an outsized impact on how future courts decided the issue and its long-term resolution across the country.  The results also raise questions about  “percolation,” the Supreme Court’s practice of allowing multiple lower courts to develop reasoning on an issue before it takes it up. “One of my takeaways is that what some people might be thinking is happening as percolation is not really happening if they are just very quickly falling in line,” Griffin told the National Law Journal.

Professor Griffin also found variation in how often respective circuits’ first-impression rulings were later followed by other appeals courts. The 10th Circuit was followed most often, 75% of the time.

The circuit with the lowest “win rate” was the 2nd. Out of 41 times the Second Circuit appeared on either side of a split, the later, considering court chose the 2nd Circuit’s position 49% of the time, Prof Griffin found.

National Law Journal, Appellate Judges Put a Lot of Weight on Sister Circuit Precedent, Study Finds (April 20, 2026)

 

~ Thomas L. Root

No Sentencing in Advance, 6th Circuit Says – Update for May 12, 2026

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LET’S MAKE A DEAL

After completing a child pornography sentence, Dan Barton began supervised release by violating a couple of conditions, such as leaving the jurisdiction without permission and checking out adult porn on a computer he wasn’t supposed to have.

His Probation Officer filed a notice of violation, and Dan found himself in front of the judge.

His judge, clearly reluctant to send Dan back to prison but wanting to make an impression on the defendant, offered Dan a deal:

You’ve got two options here. You can do 6 months, or I can keep you on supervision with additional conditions and if you do one thing wrong, I mean one thing, I will max you, 2 years. 2 years. 6 months now or keep you on supervision and you don’t spit on the sidewalk. If you do, I will send you for 2 years… Because you made the choice. You’re wearing the robe. You understand me?

Dan understood. He selected curtain two, continuing on supervision with a Sword of Damocles dangling overhead.

Obviously, Dan didn’t stay on the straight and narrow. If he had, there’d be nothing to write about. Instead, Dan got caught with an iPad – a violation of his supervised release – and got slapped with the promised 2-year sentence.

Last week, the 6th Circuit reversed Dan’s sentence as both procedurally and substantively unreasonable. 

A district court is always supposed to begin a sentencing by calculating the correct Guidelines range. Then, the court is to apply the 18 USC 3553(a) sentencing factors to create an individualized sentence. However, the Circuit said, “the sentence-in-advance method inherently results in non-individualized terms of imprisonment… [T]here is no way that the district court could have known at the first violation hearing that any future violation, regardless of the circumstances, would warrant a specific term of imprisonment, let alone the statutory maximum… While it is true that Article III cloaks federal judges with considerable powers, clairvoyance is not one of them. Barton’s term of imprisonment, therefore, did not result from consideration of the relevant 3553(a) factors—it was simply a product of the district court’s promise.”

The 6th said that it was not suggesting “that district courts cannot pair leniency towards supervisees with admonishments that future violations will not be tolerated. When a district court chooses to continue supervision rather than revoke it, the district court places trust in the defendant. A future violation breaches that trust, and that breach of trust may serve as one factor that the district court uses to calibrate an appropriate sanction for the defendant’s violation conduct… What a district court may not do is what the district court did here—rely solely on a previous promise to impose a specified sentence to go ahead and impose that sentence.”

United States v. Barton, Case No. 25-3364, 2026 U.S.App. LEXIS 13153 (6th Cir., May 6, 2026)

~ Thomas L. Root

GAO Says ‘Heinous Crimes Haunting Federal Prisons’ – Update for May 11, 2026

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SEX, LIES AND LOUSY VIDEOTAPE

Sexual abuse complaints against Bureau of Prisons staff and inmates remain largely unresolved because of BOP investigative deficiencies, the Government Accountability Office found in a report issued last week.

Allegations of rape and sexual misconduct against BOP employees and inmates have spiked in recent years, with 2,956 Prison Rape Elimination Act complaints from 2020 through 2024 with the inmate as the perpetrator and 3,029 complaints naming a BOP staffer as the perp. The GAO found that the Bureau is in many ways failing to implement v “in the way Congress intended,” Government Executive reported.

From 2014 through 2022 (the period studied), investigations of 77% of staff-on-inmate complaints were inconclusive. Only 9% of those were substantiated by BOP. The staff suspect was cleared in just six cases, or about 1/10 of 1%. 

A similar trend emerged from sexual abuse allegedly committed by incarcerated individuals, with 81% of those cases reaching inconclusive findings.

BOP correctional officers faced around 3,000 allegations of sexual abuse from 2020 through 2024, a doubling from prior years. From 2014 through 2022, BOP averaged 433 allegations against its staff per year. In 2023 and 2024, that spiked to 857 per year.

The champion facility, unsurprisingly, was the now-closed FCI Dublin, with 260 complaints from 2020 through 2024. Next highest were USP Lee (94), USP Thomson (88) and USP Canaan (79). At the other end, Mendota, Lompoc and Victorville each had only one complaint during the 5-year period.

BOP employee misconduct complaints proceed through the system at a snail’s pace, the GAO found. BOP’s Office of Internal Affairs had 12,153 open employee misconduct allegations last year (although most were not PREA complaints). Over a third of the cases had been open for at least three years.

“The number of abuse allegations may seem startling,” GAO said in a companion blog. “But they only show the reported sexual abuses. Some abuse may be going unreported. We spoke with incarcerated people about obstacles they’ve encountered when trying to report sexual abuse allegations… Some people told us they were unaware of options that do not require reporting abuse directly to a prison employee. Some people told us they feared retaliation from prison employees. There was also fear of being stigmatized by fellow incarcerated people. Because of the lack of privacy in prisons, it’s often difficult to report abuse without others finding out.”

Under BOP Director William K. Marshall III, the BOP has increased OIA resources over the last year to address the backlog, including by sending teams of investigators to focus on facilities with particularly large caseloads. Still, the GAO reported that BOP employees complained of insufficient staffing to respond to PREA complaints.  The One Big Beautiful Bill Act (HR 1), passed last summer, included $3 billion for BOP staffing, but a year ago, DOJ “abruptly canceled” an estimated $16 million in funding, “decimating” infrastructure intended to help prisons comply with PREA, according to a Brennan Center report.

GAO reported that some enforcement problems lie with clever abusers. Perpetrators lie. Others deceive. The video evidence stinks. “Most of the corrections officers with whom GAO spoke said abusers know where they can go to evade cameras, and some said the video quality is poor or not retained for a sufficient amount of time,” Government Executive reported. “Employees also said investigations against staff can take time, often years, to complete. Corrections officers told GAO that false allegations of sexual abuse are prevalent and waste resources and tarnish the credibility of those reporting real incidents. Incarcerated individuals told the auditors that their fellow inmates make false accusations against prison staff as a form of retribution.”

PREA sought to establish a “zero-tolerance policy” for rape in U.S. prisons while tasking the Justice Department with instituting national standards for preventing, investigating and tracking such incidents. GAO noted sexual abuse “remains a significant problem” in federal prisons despite some progress under the law.

GAO, Federal Prisons: Improvements Needed to Prevent, Detect, and Address Sexual Abuse (May 5, 2026)

Brennan Center, Federal Funding Cuts Target Efforts to Reduce Sexual Abuse in Prisons (January 26, 2026)

GAO Watchblog, The Heinous Crimes Haunting Federal Prisons—Rape and Sexual Abuse (May 6, 2026)

Government Executive, More than 3-in-4 allegations of sexual assault against federal prison staff are going unresolved (May 6, 2026)

~ Thomas L. Root

We Must Have Imagined It – Update for May 8, 2026

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HALLUCINATIONS

I have had four inmates in the past few months send me draft court filings that they had prepared by using artificial intelligence. The drafts were uniformly terrible.

In the most recent, the draft cited four cases – one was outright fictitious. Two others were real cases but did not address the question that the AI chatbot said they did. The fourth was a real case, but instead of holding what the motion said it did, the case said the exact opposite and destroyed the most important argument the inmate was trying to make.

The problem, called “hallucinating,” is that the AI agent makes things up when it cannot find the right answer or the right case. The problem is so epidemic in the legal world that a Paris-based legal tech researcher has launched an AI Hallucinations Cases database, with almost 1,400 cases listed so far.

One of the newer entries is a 5th Circuit denial of a pro se inmate’s appeal of the denial of his compassionate release motion. Prisoner-appellant Jose Marquez cranked out his appellate brief through AI. The arguments were quickly shot down by the appeals panel. At the end of the decision, the Circuit delivered a blunt warning:

Before concluding, we note that Marquez’s deceptive briefing practices deserve special mention and admonition. After an exhaustive review of Marquez’s brief, we conclude that some of the cases Marquez cites do not exist and nearly every quotation from the caselaw that he cites from existing caselaw is either misquoted or fabricated. Further, most of the legal propositions that Marquez posits are supported by our caselaw are either inapposite to the cases he cites or, worse, contradicted by our caselaw. While we afford pro se plaintiffs some leeway, we will not ignore Marquez’s use of non-existent caselaw and fabricated quotations, which flouts the requirement in Federal Rule of Appellate Procedure 28(a)(8)(A) that all briefs contain arguments supported by cited authority. Marquez is WARNED that his use of deceptive briefing practices akin to those employed in this case may result in the imposition of appropriate sanctions.

Appropriate sanctions primarily include fines. A few weeks ago, a West Coast lawyer in a probate action was fined over $100,000 for his repeated use of AI-generated motions containing hallucinated cases and quotations. The 5th said that being pro se doesn’t mean that you can avoid that lawyer’s fate.

United States v. Marquez, Case No. 25-50866, 2026 U. S. App. LEXIS 11880 (5th Cir. April 24, 2026)

AI Hallucinations Cases database

~ Thomas L. Root

Back to School, Wherever You Are – Update for May 7, 2026

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ANOTHER CIRCUIT HOLDS INMATES CAN EARN FSA CREDITS BEFORE ARRIVAL AT PRISON

A week ago, I reported that the 4th Circuit had ruled in Benson v. Warden that programs completed in non-BOP jails after sentencing but while awaiting delivery to the prisoner’s designated facility can earn eligible inmates First Step Act credit under 18 USC 3632. Last week, the 1st Circuit checked in, holding the same, that the FSA authorizes a prisoner sentenced to a federal sentence but not shipped yet is eligible for FSA credits for completing county jail programs.

Art Miles was sentenced in 2022 and 2023 to 300 months’ imprisonment for two separate federal convictions. In all, he spent 15 months in county jail after the first sentencing before the Marshals finally hauled him to a BOP prison.

The BOP refused him any credit for programs and work he performed while in the county lockup. The district dismissed his 28 USC 2241 habeas petition, and Art appealed.

Last week, the 1st Circuit reversed, granting Art eligibility for 15 months’ worth of credit. The FSA states that eligibility begins with commencement of the sentence, but the BOP’s regulation says eligibility begins when the inmate arrives at the designated prison. The Circuit said, “As the magistrate judge in this case, and the multiple courts it cited (and many others) have observed, the view expressed in the regulation of when a sentence commences plainly conflicts with the text of the FSA… There is no way to reconcile ‘arrival’ at a facility as it appears in the BOP’s regulation with ‘awaiting transportation to’ that facility… The BOP’s conflicting regulation is thus invalid… and Miles could not properly be denied time credits based solely on the fact that his work as an orderly preceded his arrival at FMC Devens.

The BOP argued that Art had not had “individualized risk and needs assessment” performed until he arrived at the prison, and that it is not required to award credits for an inmate’s participation in programs unless the risk and needs assessment has taken place. The Circuit rejected that position:

[T]he statutory obligation to provide prisoners “with the opportunity to actively participate in” EBRR programs during “their entire term of incarceration,”18 USC 3621(h)(6), is incompatible with the BOP’s claim that it can refuse to credit prisoners’ participation in programming that it later determines meets the prisoners’ “specific criminogenic needs” simply because that participation preceded the assessment that identifies those needs. As the BOP itself admits, no provision of the FSA proscribes awarding credits for successful pre-assessment participation.

Reasonably construed, then, the FSA’s mandate to give prisoners the opportunity to participate in EBRR programs throughout their term of imprisonment requires the BOP to award credits for successful participation in EBRR programs or their equivalent when that participation occurs after the starting point set by the statute — the commencement of the sentence — regardless of the timing of the risk and needs assessment.

Miles v. Bowers, Case No. 25-1291, 2026 U.S.App. LEXIS 11998 (1st Cir. April 27, 2026)

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

~ Thomas L. Root

What was Happening Last Week – Update for May 5, 2026

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NOTES FROM ALL OVER

Just a Change of Uniform: Federal inmates have long said that many Bureau of Prisons correctional officers are only a uniform change away from becoming inmates.

The hyperbole contains a grain of truth for Jeffrey Wilson.

Wilson, a BOP correctional officer/medic convicted of sexually abusing a female inmate at the now-closed FCI Dublin, was sentenced last Friday to 52 months in prison by US District Judge Yvonne Gonzalez Rogers (Northern District of California).

Jeffrey Wilson, 34, of Eureka, pled guilty last August to five counts of sexual abuse of a ward and one count of making a false statement to investigators. He is the ninth officer to be convicted at trial as part of “Dublin Rape Club” investigation into sexual abuse of inmates at the facility.

Wilson was employed from July 2021 to September 2022 as a CO responsible for providing emergency assessment and medical care to inmates. He admitted to having sexually abused an inmate who needed anti-seizure medication and to giving her a prepaid credit card and cellphone.

“Many of these women were emotionally damaged,” Judge Gonzalez Rogers said to the defendant at his sentencing. “And yet men like you take advantage of that. I find that offensive and illegal.”

Wilson told the Judge that he had made a “terrible decision” and he’ll have to “atone” for what he did “every single day.” Nevertheless, he still described the relationship with the victim as “mutual.”

While this prosecution was not the most high-profile in the scandal, Wilson’s case is significant as the last to be adjudicated, according to the California Post.

San Jose Mercury News, Ex-FCI Dublin guard sentenced to 52 months in prison (May 1, 2026)

California Post, Women’s prison officer learns fate for role in ‘rape club’ in biggest sex abuse scandal in US history (May 4, 2026)

FBI Reduces Numbers Investigating Crime:  In the first nine months of President Trump’s second term, the FBI increased by 23 times the number of its personnel assigned to immigration enforcement. The agency now devotes about 25% of its workforce to to immigration enforcement, The Intercept reported last week.

There were 279 FBI personnel working on “immigration-related matters” before Trump took office in January 2025, according to FBI records. In eight months, the number had ballooned to more than 6,500.

“That’s a striking diversion of resources away from public safety,” Bier said. “We’re talking about the FBI diverting people away from criminal investigations and ongoing criminal activity and into civil immigration enforcement. This is showing the extent to which the resources of the FBI were put at the disposal of Immigration and Customs Enforcement contrary to the intent of Congress, and the abuse of the funds that Congress grants the FBI to accomplish its mission.”

The Intercept, FBI Redirected A Quarter of Staff to Target Immigrants Under Trump’s Deportation Push (May 1, 2026)

Nothing Succeeds Like Success: The group that owns a St. Louis halfway house where eight people fatally overdosed on fentanyl in 2½ is expanding operations with subsidiary companies.

At least 14 LLCs established in Missouri from 2023 to 2025 list Dismas House of St. Louis CEO Kevin Walk as the organizer, Missouri state filings show. Thirteen of the LLCs don’t include Dismas House in the name, but documents show their assets are directly tied to the parent nonprofit.

St. Louis Medical Examiner data showed eight men residing at the Dismas House of St. Louis, the region’s only federal halfway house, were found inside the facility after overdosing on fentanyl, or fentanyl and a combination of other drugs. The deaths happened from 2021 to 2023 and were not previously known.

A year after the last known fentanyl death at Dismas House, the BOP re-upped its contract for more than $60 million, records show.

KMOV-TV, After string of overdose deaths, Dismas House of St. Louis is expanding  (April 29, 2026)

~ Thomas L. Root

Supreme Court Rebuffs DOJ on Felon-In-Possession Review – Update for May 4, 2026

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SLEEPER

An under-the-radar § 922(g)(1) case may portend big changes coming in the world of 2nd Amendment and felon-in-possession.

All eyes have been on the United States v. Hemani decision, due in the next eight weeks or so. Hemani asks whether 18 USC § 922(g)(3) – which bans illegal drug abusers from having guns – violates the 2nd Amendment’s guarantee of the right to bear arms. But last week, SCOTUS quietly denied the government review of a 5th Circuit decision that held the felon-in-possession prohibition of § 922(g)(1) unconstitutional as applied to a woman with a prior drug felony.

The felon-in-possession subsection of 18 USC § 922(g) prohibits anyone convicted of a felony, no matter how petty or how long ago, from possessing a gun or ammo.

In its April 27th orders list, the Supremes declined the Dept of Justice’s request to hear United States v. Doucet. The 5th Circuit ruled last December in an unpublished decision that Briani Doucet, a Louisiana woman convicted of a § 922(g)(1) felon-in-possession count based on a 2016 “attempted cultivation of marijuana” felony, should be acquitted on 2ndAmendment grounds. The DOJ had asked the Court to address its appeal after the justices issued a decision in Hemani.

None of the Supreme Court justices commented on the certiorari denial.

The Reload reported,

The denial marks a rare instance of the High Court refusing to show deference to the Justice Department in a case imperiling a federal law. It also deviates from the Court’s recent practice of holding appeals dealing with a similar subject matter to a forthcoming court decision and ordering them reconsidered once it has delivered a decision. Taken together, these departures could signal a potentially decisive ruling against the federal government’s current treatment of marijuana and firearms in Hemani.

The cert denial is all the more puzzling because SCOTUS previously denied certiorari in a case going the other way, Vincent v. Bondi, two months ago. Melynda Vincent’s petition for certiorari asked whether 18 USC § 922(g)(1)’s felon-in-possession provision violates the 2nd Amendment by prohibiting her from having a gun. Vincent was convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, she cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – as well as a mental health counseling service, Life Changes Counseling.

Melynda was the poster child for rehab, but the 10th Circuit ruled that applying § 922(g)(1) to her was consistent with the 2nd Amendment. Her petition for cert was one that many observers thought would be granted, or at least certainly should be granted.

United States v. Doucet, Case No. 25-1001(certiorari denied, April 27, 2026)

United States v. Hemani, Case No. 24-1234 (argued on March 2, 2026)

The Reload, SCOTUS Turns Away Weed and Guns Case Despite DOJ Request (April 28, 2026)

Vincent v. Bondi, Case No. 24-1155 (petition for certiorari denied March 2, 2026)

~ Thomas L. Root

SCOTUS Adds Guidelines Case to Docket – Update for April 30, 2026

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PRIME TIME AT SCOTUS

The Supreme Court is entering the busy season, with cases yet to be decided on compassionate release, § 922(g), venue, appeal waivers and suits for prison violation of the Religious Land Use and Institutionalized Persons Act of 2000, still to go.

Add to that a grant of certiorari last week to examine to what degree guideline commentary should be applied when sentencing criminal defendants — a question that has caused confusion among the circuit courts and led to unreasonable discrepancies in punishments. Specifically, the Court asks whether Stinson v. United States “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”

In Stinson, the Supreme Court held that commentary issued by the United States Sentencing Commission that interprets or explains a guideline is authoritative and binding on federal courts unless it violates the Constitution or a federal statute, or is plainly erroneous.

The Sentencing Commission’s guidelines commentary advises judges on how to calculate an appropriate sentence based on the nature of the crime and the defendant’s criminal history. The commentary clarifies the guidelines through application notes, conclusions and background information. But unlike the Guidelines themselves, the commentary is not subject to Congressional review.

The petitioner claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful firearm possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”

The sentencing guideline itself applies an enhancement where the firearm has a “large-capacity magazine,” but it does not expressly define what that means.

The Sentencing Commission’s official commentary defines the term to include a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.” The defendant argues that the commentary improperly expands the scope of the guideline. In his view, the enhancement was intended to target weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

The case will not be argued until the fall and decided early in 2027.

Ohio State University law professor Doug Berman wrote last week that the issue is an important one that transcends gun possession enhancements: I will likely need a series of future posts (and likely also some Substack essays) to fully explain the backstory and possible impacts of this case for federal sentencing law and also perhaps administrative law. For now, I will… wonder[] aloud if the Justices’ ongoing work on the still-pending federal compassionate release cases might have gotten them ever more focused on the law-making activities of the US Sentencing Commission.”

Beaird v. United States, Case No. 25-5343 (certiorari granted April 20, 2026)

Stinson v. United States, 508 U.S. 36 (1993)

Courthouse News Service, Justices to reconsider power of federal sentencing advice (April 20, 2027)

Sentencing Law and Policy, Supreme Court grants cert on long simmering issue of whether federal sentencing guideline commentary should still garner deference from courts (April 20, 2026)

~ Thomas L. Root

Loper Bright May Be Coming for BOP Time Credit Rules – Update for April 28, 2026

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LOPER BRIGHT TO THE RESCUE ON FSA RULES?

Raahshjeem Benson (we’ll just call him ‘George’) was sentenced in December 2020. But he was not transferred to his designated Bureau of Prisons facility for 15 months after that, instead staying in a county lockup. When George finally got to his designated federal prison, the BOP administered his individualized risk and needs assessment, and he started earning FSA credits.

George asked for credits for the 15 post-sentence months he spent in county, where – according to him – he participated in programming or productive activities which should earn him First Step Act time credits under 18 USC § 3632. These credits can be applied to shave up to a year off a prison sentence, and any excess credits earned beyond that buy a prisoner more halfway house and home confinement at the end of a sentence.

But because George didn’t receive the individualized assessment of needs that First Step requires the BOP to perform on every prisoner in order to match him or her with the most effective programs until after he had completed 15 months of programs, the BOP refused to give him any credits for the programs he had taken before reaching his designated prison.

Benson filed a pro se 28 USC 2241 habeas petition, requesting that the BOP be ordered to award him about 150 FSA credits he said he earned for programs completed while in the county jail. Without conducting discovery or requiring a response from the Government, the district court dismissed his petition.

Last week, the 4th Circuit vacated the decision and sent the case back to the district court.  While it would be easy to read too much into the Circuit’s ruling, two holdings are significant.

First, after George’s needs assessment, the BOP calculated that he was at medium risk for recidivism under the PATTERN system. Medium-risk inmates can earn FSA credits but normally cannot use them until their recidivism risk falls to low or minimum. The government argued that since George couldn’t use any of the credits he wanted awarded to him, he had no standing to bring the habeas corpus.“Standing” is a constitutional concept: a petitioner who has nothing at stake in the suit lacks standing to bring the action, and the case is dismissed as moot.  For a controversy to be moot, the 4th held, it must lack at least one of the three required elements of Article III standing: (1) injury in fact, (2) causation, or (3) redressability. Because recidivism levels can change with prisoners’ age and completion of programs (among other reasons), the Circuit ruled that George had a reasonable chance of being able to use his FSA credits in the future. What’s more, the FSA lets medium- and high-risk inmates “petition to be transferred to prerelease custody or supervised release [upon] approv[al] by the warden of the prison,” based on determinations listed in 18 USC § 3624(g)(1)(D)(i)(II), so George had a chance of using the credits, even if it was not a very strong chance.

Thus, “the FSA does not squarely foreclose a prisoner’s eligibility for prerelease custody or supervised release based on a single determination that he has a “medium” risk of recidivism,” the Court said. While “it limits that prisoner’s options, [] it leaves two paths to eligibility… (1) two subsequent reassessments of “low” risk; or (2) the warden’s approval of the prisoner’s petition.” These paths are enough to give George standing to bring the habeas.

On the merits of George’s claim, the BOP argued on appeal that the statute requires “successful participation” in programs to earn FSA credits, and its rule requires that “successful participation” in programming must include a prior determination by BOP staff that the programs or productive activities have been recommended, based on the inmate’s individualized risk and needs assessment. 28 CFR § 523.41(c)(2). Because George was not evaluated until he reached prison, the agency argued, nothing he did while in county lockup could count. The BOP argued that its rule was a reasonable interpretation of the statute and thus the court had to accept the BOP’s interpretation under the well-known Chevron doctrine.

However, while George’s case was pending, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo. The Loper Bright opinion held that courts were to decide questions of law without deferring to what the agencies charged with carrying out the laws thought they might mean. Thus, the 4th Circuit sent the case back for the district court to decide whether “successful participation” in programming requires that the BOP evaluate the inmate first.

George has a lot of hurdles to cross back in district court, including showing that he actually did engage in worthwhile programs and productive activities while in county jail. But the Circuit’s standing holding and application of Loper Bright non-deference are a significant victory for inmates and the first of many successful attacks on BOP rules of questionable rationality.

 

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

Chevron USA Inc. v. NRDC, 467 US 837 (1984)

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

~ Thomas L. Root