Some Odds and Ends – Update for June 4, 2026

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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.

NOTES FROM ALL OVER

Gunning for Restoration:  Fourteen months ago, the Dept of Justice restored rights to several people prohibited by 18 USC § 922(g) from owning guns (including actor Mel Gibson). DOJ announced that it was planning a program to restore firearms rights for nonviolent offenders. A rulemaking proceeding followed, with a comment period that ended seven months ago.

Last Thursday, the DOJ announced a new batch of rights restorations. However, it was limited to just four people, and the DOJ backdated it to the tenure of former Attorney General Pam Bondi. The announcement said nothing about the DOJ’s plan to standardize the rights restoration process.

Gun law and policy newsletter The Reload reported last week that “Thursday’s filing shows little progress, but it does connect to one of the overarching issues with the DOJ’s rights restoration approach. That’s because of the four men former AG Bondi picked, one had filed a Second Amendment lawsuit challenging his firearms prohibition.”

The Reload, Analysis: Where is DOJ’s Gun Rights Restoration Plan? (May 29, 2026)

Who Can Trust DOJ?  A jaw-dropping mea culpa played out in federal district court in Chicago last week, as the US Attorney himself appeared before US District Judge April Perry to apologize for what The New York Times called a “remarkable list of grand jury errors in a case that was dismissed against four Democratic activists about to face trial for impeding the police during a protest last fall at a suburban immigration detention facility.”

The Assistant US Attorney handling the grand jury talked to jurors outside of the courtroom, coaching them to indict. The government dismissed several grand jurors deemed insufficiently willing to approve the indictment. Then, the AUSA doctored the grand jury transcripts to hide what he had done.

The Times said, “[T]he mistakes also pointed to a more important problem: As Mr. Trump has demanded more and more charges against those he perceives as his opponents, prosecutors have felt pressure to push weak cases through grand juries. And that, in turn, has led to an erosion in faith in the Justice Department by both the grand jurors themselves and the judges considering the cases.”

“Your sole goal is to do justice. Your client is justice itself,” Judge Perry told the US attorney. “I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken.”

The New York Times, As Trump Politicizes Justice Dept., Prosecutors Struggle With Grand Juries (May 26, 2026)

Free the Weed: In a May 22 letter to President Donald Trump and Pardon Czar Alice Marie Johnson, 28 Democratic senators and representatives, along with Bernie Sanders (I-VT), asked the administration to pardon everyone in federal prison for non-violent marijuana crimes.

The letter notes that the Administration’s decision to move marijuana from Schedule I under the Controlled Substances Act to Schedule III “does not provide relief for anyone currently in federal prison from a marijuana conviction.” The letter observed that the Sentencing Commission estimates that about 3,000 people are serving time for pot trafficking offenses.

The legislators wrote, “The Bureau of Prisons (BOP) is plagued by capacity issues, both overcrowded 7 and understaffed.8 While it won’t solve the structural issues that have led us here, we believe that commuting the sentences of people with marijuana offenses would both address the overly harsh sentences while simultaneously allowing BOP to focus resources where they are needed most.”

Letter to Donald Trump (May 22, 2026)

Sentencing Commission Quick Facts Released: The US Sentencing Commission regularly releases “Quick Facts,” short data documents that make for an interesting read as they fulfill the USSC’s goal of giving “readers basic facts about a single area of federal crime in an easy-to-read, two-page format.”

The Commission has issued a spate of new “Quick Facts” publications based on its latest Fiscal Year data.  The newest set of postings by the USSC on the “Quick Facts” page covering a range of offenses and offenders, including Guidelines Career Offenders, illegal reentry, alien smuggling, drug trafficking (including separate publications focused on fentanyl, fentanyl analogue and methamphetamine trafficking), theft and fraud, healthcare fraud, money laundering and government benefits fraud.

USSC, Quick Facts (May 19, 2026)

~ Thomas L. Root

Compassionate Release Takes It on the Chin – Update for June 2, 2026

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COMPASSIONATE RELEASE HIT BY SCOTUS, BUT THE SKY’S NOT FALLING YET

The Supreme Court last week confirmed the legality of restrictions imposed by most federal circuits on what may be considered “extraordinary and compelling reasons” for sentence reduction under 18 U.S.C. § 3582(c)(1)(A), the so-called compassionate release statute.

The decisions – Rutherford v. United States and Fernandez v. United States – are disappointing. But the sky’s not falling.

To win compassionate release, a prisoner must show the existence of extraordinary and compelling reasons for grant and that the prisoner is not a danger to the community. The Court must find that the compassionate release “is consistent with applicable policy statements issued by the Sentencing Commission” and must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

In Fiscal Year 2025, 2,795 compassionate release motions were filed nationwide, with 14% of those motions granted.

In last week’s double-barreled blast at compassionate release, the Supremes ruled in Rutherford that an inmate serving a long sentence that he would not get today because of a non-retroactive change in the law. The usual example is someone with three 18 USC § 924(c) convictions from before 2018 because he carried a gun while selling marijuana every day for three successive days. Before the First Step Act passed, he would have gotten 25 years consecutive time for the second and third days’ gun, for a combined mandatory 18 USC § 924(c) sentence of at least 55 years. After FSA, he would have gotten only 15 years at minimum.

The Sentencing Commission said that such a sentence disparity due to a change in the law constituted one of its list of extraordinary and compelling reasons even though the change in the law was not declared retroactive by Congress. The Supreme Court disagreed.

In Fernandez, the defendant convinced the judge that while a 28 USC § 2255 motion could not be granted based on the evidence of innocence he presented to the court, the court should award compassionate release in part because of the judge’s serious reservations about the credibility of co-conspirators who had rolled on the defendant and testified (rather unconvincingly) that he was guilty.

The Supremes ruled that a compassionate release motion could not be used as an end-around on 28 USC § 2255 habeas corpus by making questions about the reliability of the conviction into extraordinary and compelling reasons for the grant of compassionate release.

The decisions, both written by Justice Amy Coney Barrett, are troubling. Both the 6-3 Rutherford and the 8-1 Fernandez decisions seemed as though the majority was writing its own common-law policy on what can never be considered “extraordinary and compelling reasons” for a sentence reduction. But Congress explicitly authorized the Sentencing Commission, not the federal courts, to determine what constituted extraordinary and compelling reasons for a compassionate release reduction.  Both cases read like a policy dispute between SCOTUS and USSC, and the law says that USSC should win that dispute every time.

Rutherford holds that “[t]he statutory text and structure make clear that Congress’s nonretroactive change to § 924(c) — considered by itself or in combination with other factors—cannot make a prisoner eligible for compassionate release. To the extent that it counsels otherwise, the Commission’s policy statement is invalid… The disparity that results from Congress’s decision to leave a sentence untouched cannot serve as one of those [extraordinary and compelling] reasons.”

In Fernandez, the Court asserts “the supposed invalidity of a conviction is not among the ‘extraordinary and compelling reasons’ that justify compassionate release… [A] reason is not ‘compelling’ if Congress has channeled it through postconviction statute.” These seem like Court-made policies, not defensible statutory construction.

Sen Richard Durbin (D-IL), one of the FSA’s authors, issued a statement saying, “When we wrote the First Step Act, we clearly sought to expand federal judges’ discretion to consider compassionate release as part of an effective smart-on-crime approach to reforming our justice system. We will be exploring options to uphold the integrity of the First Step Act, including further legislation.”

Ohio State University law prof Doug Berman, writing in his Sentencing Law and Policy blog, said,

I think what the ‘statutory text and structure make clear’ in this context is that the US Sentencing Commission, and only the USSC, is properly authorized to make law and policy regarding ‘what should be considered’ grounds for sentence reductions. I hope the USSC (as well as lower courts) will see the new restrictions concocted by SCOTUS in Fernandez and Rutherford to be limited and narrow so that district courts continue to have proper authority to grant sentence reductions for various reasons when a federal prison term no longer advances the purposes of punishment set forth by Congress in 18 USC § 3553(a). But, given the vibes of these opinions, it seems likely the Justice Department will claim that they dramatically remake possible grounds for sentence reductions, and also likely that lots of district courts will now consider their reduction authority to be greatly constrained.

Still, the holdings will not change compassionate release for most compassionate release  movants, who can continue to plead the extraordinary and compelling reasons for grant listed in USSG 1B1.13(b).

USSC, Compassionate Release Data Reports (May 20, 2026)

Rutherford v. United States, Case No. 24-820, 2026 U.S. LEXIS 2294 (May 28, 2026)

Fernandez v. United States, Case No. 24-556, 2026 U.S. LEXIS 2295 (May 28, 2026)

Sentencing Law and Policy, What are the contours of the new sentence-reduction law and policy concocted by SCOTUS in Fernandez and Rutherford? (May 28, 2026)

~ Thomas L. Root

Hopemonger Peddles RDAP Misinformation – Update for June 1, 2026

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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.

HE KNOWS EVERYTHING, BUT EVERYTHING HE KNOWS IS WRONG

Over the past 10 years of writing a newsletter, I have often railed at hopemongers, people who call themselves a “prison consultant” and dispense news and advice to federal prisoners intended to get families to part with money for spurious reasons.

Customarily, I have avoided naming names (except once, for “Oaks of Justice”). I am now naming another, chiefly because TikTok and the widespread availability of cellphones in prisons have combined to give this guy a platform that offers unparalleled opportunity to badly advise inmates.

Last week, I watched a new video panic from Kyle Sandler (who runs a website called Federal Prison Tips), in which he claimed that the Bureau of Prisons has “changed” 18 USC § 3621(e). There’s “a new 10-year lookback for crimes that can preclude you from taking the RDAP program,” Kyle announced breathlessly as “breaking news” that only he had uncovered.

“3621E, it’s changed because it used to be just dependent on the instant offense!” an eye-patched Kyle exclaimed. “The other significant change is that inmates that have shorter sentences will no longer be eligible for the full year off!”

Oh, the humanity!

Kyle manages to pack more error and misinformation into two and a half minutes than most people can spew in an hour.  He’s not just wrong, he’s spectacularly wrong. Let’s try to clean this mess up:

The BOP issued a Program Statement in March (P.S. 5162.06) that updated its list of offenses it deems to be crimes of violence for BOP programming and designation purposes. A few were added, but notably, 18 USC § 922(g) – the statutory list of all those people prohibited from possessing a gun – was dropped.

Early last month, the BOP issued a change to its 8-year-old Program Statement regarding the award of early release credit for successful completion of the Residential Drug Abuse Program. The Program Statement highlights its changes in yellow for easy reading and simple comprehension.

Easy to comprehend, unless, of course, you’re Kyle.

The only change in the whole Program Statement is this: “For current US Code offenses, DSCC legal staff will refer to the Program Statement Categorization of Offenses to determine whether an offense precludes early release under § 3621(e). For current D.C. Code offenses, DSCC legal staff will refer to D.C. Code 23-1331(4).”

That’s it. There’s no “new” 10-year look-back. The BOP has “looked back” at prior offenses for at least a decade. Read the old Program Statement if you doubt this. It’s a cinch that Kyle should have before spewing his “advice.” And while I’m on it, there’s no change in 18 USC § 3621(e). This is because, as anyone who didn’t snooze through high school government class knows (and I’m talking to you, Kyle), the BOP has no ability to change § 3621(e), which is a federal statute. The BOP is just an agency. Only Congress has the power to change a statute.

As well, there’s no applying the Categorization of Offenses list to any prior offense at all. The few prior offenses that are disqualifying had to occur in the past 10 years, and they are set out (like they always have been) in 28 CFR 550.55. They include such undeniably violent crimes as homicide, rape, robbery, aggravated assault… that kind of thing.  The Categorization of Offenses list has nothing to do with those.

Staying with us on this, Kyle?

Finally, Kyle’s other “significant change” that he pitches as earth-shattering: inmates with shorter sentences “will no longer be eligible for the full year off.”  That sliding scale of decreasing time off for the under-30-month set has been in the Early Release Procedures Program Statement since at least 2016. It did not change in the new Program Statement.

Kyle, meet Dennis Steven Wright… As for the rest of you, don’t panic. Do your own research. It can’t be any worse than Kyle’s, and it probably will be a lot better.

Federal Prison Tips, RDAP Program Change (May 28, 2026)

Bureau of Prisons, P.S. 5162.06, Categorization of Offenses (March 19, 2026)

Bureau of Prisons, P.S. 5221.02 CN-3, Early Release Procedures Under 18 U.S.C. § 3621(e) (May 7, 2026)

~ Thomas L. Root

More ‘Crime of Violence’ Follies – Update for May 29, 2026

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A PAIR OF ‘CRIME OF VIOLENCE’ DECISIONS

Two decisions handed down last week show that the battle over what violent crimes might be considered “crimes of violence” for purposes of sentence enhancements continues to rage. And, for that matter, illustrate the absurdity that surrounds federal courts’ attempts to determine what might be a “crime of violence” sufficient to trigger an enhanced Guidelines sentence or the application of a mandatory consecutive sentence for carrying a gun.

In United States v. Pimental, Richard Pimental was classified as a Guidelines “career offender” due to two prior crimes of violence. One was Massachusetts carjacking, which outlaws stealing a car by assaulting, confining, maiming, or putting any person in fear.

The 1st Circuit has held that Massachusetts carjacking by assault can be committed by a “mere touching,” without use of physical force. The Circuit noted that while the Massachusetts courts had “occasionally suggested in dictum” that assault “might require a threat or attempt to cause physical harm,” they had “never repudiated either the principle that assault is attempted or threatened battery or the principle that battery does not require violent force.”

Because a Massachusetts carjacking could be committed through mere “offensive touching,” it did not require force or threat of force. Thus, the level of force needed “was broader than the ‘violent force’ required by the guidelines’ force clause… Massachusetts simple assault [is] not a categorical match with a crime of violence under the guidelines.”

Richard’s sentence was vacated.

A different outcome resulted for Defendant Monte Straite. He was convicted of attempted armed bank robbery under 18 USC § 2113(d) after returning to rob the same bank (for a second time) with a gun, but being thwarted when the manager locked the door to keep him out.  He was also convicted of possessing a gun during a crime of violence under 18 USC § 924(c).

Monte argued that attempted armed bank robbery under 18 USC § 2113(d) could be committed without using or threatening force. In his case, force was neither used nor threatened because he was locked out of the bank he wanted to rob.

Last week, the 4th disagreed. While the Supreme Court has ruled that an attempted Hobbs Act robbery under 18 USC § 1951 is not a crime of violence because the attempt does not require force to commit, bank robbery under 18 USC § 2113 is different. The statute says, “Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent” to rob the bank is guilty. The grammar rules, the Circuit said:

The plain language of this is quite clear… Because committing and attempting to commit the offense both require either assault or putting in jeopardy, Section 2113(d), and because the assault and the putting in jeopardy both require use of a dangerous weapon or device, this offense categorically requires the use, attempted use, or threatened use of physical force.

United States v. Pimental, Case No. 24-1910, 2026 U.S.App. LEXIS 14457 (1st Cir. May 20, 2026)

United States v. Straite, Case No. 23-6872, 2026 U.S.App. LEXIS 14149 (4th Cir. May 18, 2026)

~ Thomas L. Root

Who to Buy, Who to Influence For Trump Clemency – Update for May 28, 2026

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NAVIGATING CLEMENCY IN THE ERA OF TRUMP II

In a long New York Times magazine article, former federal prosecutor Jeffrey Toobin provides some lesser-known facts about President Trump’s clemency process, which he describes as a “quasi-royal quasi-selling of indulgences” that “has created an extraordinary free-for-all as supplicants try to make their cases in any way they can.”

What has emerged is what the article calls “a sort of common law of Trump pardons, as those who pay attention learn how to argue and to whom.”

(“Clemency” is a catchall term that includes pardons, which invalidate a criminal conviction, and commutations, which free a recipient from prison but leave intact the conviction.)

Changes in the Dept of Justice Office of Pardon Attorney (OPA) website have obscured the number of pending clemency applications, but The Times reports that a tally by Elizabeth G. Oyer, who was Pardon Attorney during the Biden administration, shows more than 20,000 clemency requests are pending now. This compares with about 5,000 at the end of the Biden term and eclipses the 18,000 on file at the end of Biden’s first year in office.

The Trump clemency process is a departure from tradition. Prior to 2025, people seeking a pardon or commutation would submit written applications to the OPA, typically an apolitical appointee. For commutations, OPA would consult with some or all of the Bureau of Prisons, the US Attorney’s Office that prosecuted the case, the judge that sentenced the petitioner, the victim, and people supporting the petition. Applications that made the cut would be sent to the White House, where a group of staff members would review the petitions. Their views were then conveyed to the president, who makes the final decision.

Pardons traditionally were not considered until the applicant had been out of prison for at least five years. Even now, OPA’s pardon application specifies that pardons are only for people who have completed their sentences. Nevertheless, favored people are being pardoned right out of active prison sentences. In some cases, pardons are granted before trials have occurred or sentences have even begun.

Toobin, author of the February 11, 2025, book, The Pardon: The Politics of Presidential Mercy, identifies the people reviewing clemency applications in the White House as While House counsel David Warrington, his deputy Sean Hayes, and White House chief of staff Susie Wiles. “The president is going to take Susie’s advice over David’s every time,” Toobin quotes a lawyer for a successful pardon applicant as having said. “David has taken the position of trying to be no-drama. He doesn’t want to cause problems, and the knives have not come out for him because he goes about his business that way.”

Trump’s Pardon Attorney, Ed Martin, has no significant criminal law experience to speak of, a fact that didn’t keep the President from nominating him to be US Attorney for the District of Columbia, one of the two highest-profile US Attorney slots in the nation. However, Martin represented a number of January 6, 2021, Capitol rioters, and his “views and conduct were so extreme that he was unconfirmable for the permanent post, even in the Republican-controlled Senate,” as Toobin put it.

Trump then named Martin Pardon Attorney, where Martin explained his clemency recommendations in a social media post as being “No MAGA left behind.” One of the first pardon applications Martin pushed through was of a longtime supporter and former Virginia sheriff named Scott Jenkins, who got a full pardon last Memorial Day,  24 hours before he was to self-surrender to serve a 120-month sentence for a federal bribery conspiracy conviction.

New York magazine reported in February that Martin is uninterested in the Pardon Attorney position and apparently appears at the office about once a week.  “He’s just not there that much,” the staffer said.

Trump created a White House position known as the pardon czar, to which he appointed Alice Marie Johnson in February 2025. During Trump’s first term, he granted clemency to Johnson for her 1996 crack conspiracy life sentence after Kim Kardashian lobbied him for the commutation. Trump later made it a full pardon when Johnson spoke in support of his candidacy at the 2020 Republican National Convention.

Johnson has said that as pardon czar, she looks for other federal inmates who were punished in a similarly excessive way and recommends them to the president for clemency.  Toobin said, “To date, Johnson’s influence seems limited. Since 2016, Trump has pardoned dozens of people convicted of white-collar crimes like fraud, but few who were, like Johnson herself, low-level participants in narcotics conspiracies.”

So how to go about clemency in the Trump era? Political influence, large contributions to Trump-backed political action committees, or even knowing the right people, all help. But for the vast majority of the 20,000 “pardon seekers, then, the question became which of the two — Martin or Johnson — offered the best route for success. According to people who have engaged in the process, the answer appears clear: neither. ‘The safe thing to do is go through the formal application process… You file the papers with Ed Martin’s office, and you make sure Alice Johnson knows it’s there. But they don’t have the power to deliver anything. They can give you a sense of how things stand, but they are not deciders.’”

In any given case, Toobin concludes, “the chaotic structure of the Trump White House might produce a different answer. Indeed, according to people who have been involved in the process, there is often a desperate search for ties, however tenuous, to any of the leading players. ‘Everyone knows Trump often listens to the last person who talked to him,” a consultant for a pardon seeker said. “So the goal is to get to as many people in the room when he’s thinking about pardons.’”

Last fall, Trump pardoned Changpeng Zhao, founder of crypto-currency network Binance. Binance has been a crucial backer of the Trump family’s crypto venture, World Liberty Financial, which has earned the Trumps at least $1.2 billion since 2024. However, last week, the Wall Street Journal reported in the runup to the current Iran conflict, Binance “made $850 million in transactions over two years” for Iran to collect on the sale of sanctioned oil.

The New York Times, How to Get a Pardon in Trump’s Washington (May 22, 2026)

DOJ, Pardon Application

Toobin, Jeffrey, The Pardon: The Politics of Presidential Mercy (February 11, 2025)

New York magazine, Trump’s Pardon Office Is ‘Totally Decimated’ The team has been virtually replaced by highly paid lobbyists and friends of the president. (February 27, 2026)

Wall Street Journal, Iran Moved Billions Through Binance to Fund Regime – Continuing Into This Month (May 21, 2026)

~ Thomas L. Root

USP Canaan Is Not the Promised Land, Inspector General Finds – Update for May 26, 2026

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DOJ INSPECTOR GENERAL SLAMS LOCKDOWNS, HEALTHCARE, RESTRAINTS AT USP CANAAN

Biblically, the phrase “land flowing with milk and honey” describes Canaan, roughly the area encompassed by Israel, Jordan, most of Lebanon and Syria. The phrase symbolized agricultural prosperity, abundance, and God’s provision.

According to a report issued by the Dept of Justice Office of Inspector General last week, USP Canaan (Waymart, PA) is nowhere close to being the Promised Land.

The Inspector General’s report identified several “serious issues” with treatment of inmates, contraband and employee practices at USP Canaan found during a June 2025 inspection.

The OIG criticized improper use of 4-point restraints on inmates, too-frequent use of institution-wide lockdowns, the prison’s ability to provide healthcare to inmates, and inappropriate imagery and demeaning language in employee spaces.

The OIG found that USP Canaan frequently restricted the movement of general population inmates when the SHU was full. When inmates who would normally be assigned to the Special Housing Unit had to remain in general population housing units because the SHU was over capacity, the Report found, “USP Canaan significantly limited inmate movement in those units to maintain security. On about two-thirds of days in a 4-month period we examined, inmates housed in regular, non-SHU housing units were confined to their cells for all or most of the day. These frequent restrictions disrupted institution-wide functions and activities of general population inmates.”

As for the facility’s enthusiastic use of four-point restraints in the SHU, Deputy Inspector Bill Blier said, “Multiple USP Canaan employees told us they had seen [the] restraints applied too tightly, which caused the hands of restrained inmates to swell and become discolored. While BOP policy allows for use of restraints in certain situations, it is impermissible to cause physical pain or extreme discomfort.”

The Report found that as of the June 2025 inspection, Canaan had been without an on-site, full-time physician for 2.5 years. Several Health Services Department employees told OIG that “the lack of an on-site physician contributed to delays in conducting required examinations for inmates arriving at the institution. BOP policy requires inmates with chronic conditions or mental health concerns to be seen by a mid-level provider or physician within 14 days of arrival. However, 61 such appointments were past the BOP’s required timeframe for completion as of January 2025. By January 2026, the number had increased to 94 overdue appointments.

The inspection also found inconsistencies with delivering medication, expired medical supplies and delays in providing healthcare and lab testing.

“We also observed unsafe practices in dental services, specifically sharp dental surgical tools and chloroform stored in unlocked cabinets near inmates,” OIG reported.

Blier said inspectors observed prison employees using “inappropriate and demeaning language” toward inmates and other employees, as well as inappropriate imagery in employee areas.

The report makes nine recommendations to correct the issues. The BOP agreed with all of them, and in the appendices of the report, outlined the steps that have been taken over the past year to rectify each situation.

Previously, the OIG has conducted similar inspections on FCI Waseca, FCI Tallahassee, FMC Devens, FCI Sheridan and FDC SeaTac.

OIG, Inspection of the Federal Bureau of Prisons’ US Penitentiary Canaan (Report No. 26-055, May 21, 2026)

~ Thomas L. Root

Erlinger Doesn’t Make § 851 Unconstitutional, 8th Says – Update for May 22, 2026

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BETWEEN THE DEVIL AND THE DEEP BLUE SEA

Seafarers of centuries gone by sometimes found themselves in a precarious spot, dangled off the side of the ship down along the waterline to seal up the devil seam. They were between the ‘devil’ in front of them and the deep blue sea at their backs.

The 8th Circuit put prosecutors in a similar precarious position last week, holding that in the wake of Erlinger v United States, which held in essence that the 6th Amendment requires that the elements of enhanced statutory penalties had to be determined by juries beyond a reasonable doubt.

Antonio Evans was charged with a drug trafficking offense under 21 USC § 841(a). The U.S. Attorney filed an “851 notice,” specifying under 21 USC § 851 that Tony had three prior serious drug offenses, and thus must face a higher minimum sentence on his current crime.

Tony argued that Erlinger held that a jury, not the judge, had to find that he had the three requisite prior offenses. The problem is that 21 USC § 851 requires the judge, not a jury, to find the elements supporting an enhanced sentence. The district judge first decided to impanel a jury but scrapped that because the statute prohibited a jury. Instead, the trial court sentenced Tony without the enhanced sentence because the 6th Amendment required what the statute prohibited.

The government appealed. Last week, the 8th Circuit upheld Tony’s lighter sentence.

Section 851 is not facially unconstitutional, because there are circumstances where it could be lawfully applied, such as if the district court submitted, and the jury found, the incarceration-related facts during trial. If a defendant then lodged the same objection, the district court could have relied on the jury’s findings to resolve it without violating either the 6th Amendment or Section 851. Because it is not facially unconstitutional, the court may more easily find that it is unconstitutional as applied to Tony.

The government argued that the court must have “inherent power” to impanel a jury now, “so the government is not deprived… of its ability to prove the charged greater offense.” The Circuit said. “It is mistaken. The Constitution promises the government neither sentencing enhancements nor a forum to try them.”

“The Constitution does not void a statute if it may be applied in some situations without violating the Constitution,” the 8th held. “Section 851 is “facially constitutional, and it was not automatically displaced by the 6th Amendment, as the dissent suggests. Rather, it is only unconstitutional as applied to Evans. So the district court was right not to apply the enhancement.”

United States v. Evans, Case No. 25-1181, 2026 U.S.App. LEXIS 13572 (8th Cir. May 12, 2026)

~ Thomas L. Root

SCOTUS Numbers Down But Odds May Not be Up – Update for May 21, 2026

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SUPREME COURT NUMBERS AREN’T WHAT YOU MAY THINK

It has been Supreme Court gospel for decades that between 7,000 and 8,000 petitions for a writ of certiorari – that is, petitions asking the Supremes to review a case – arrive at the Court each year. The Court itself says so. SCOTUSBlog, the definitive Supreme Court fan/practitioner website does as well.  Even Georgetown Law Library’s research guide cites the number as 7,000 to 8,000.

The Court’s 2023 Code of Conduct estimates the number as “approximately 5,000 to 6,000.”  An exhibit inside the Supreme Court building states that between 5,000 and 7,000 such petitions are submitted, while the National Constitution Center puts the number at around 10,000.

They’re all wrong. The most recent year-end Supreme Court report indicates that, in the 2024-25 term, there were 3,856 petitions for review filed with the court. Of those petitions, more than half (2,527) were filed “in forma pauperis.” The remaining 1,329 were “paid” petitions.

The drop has been gradual. In 2006-07, the number peaked at 8,857, but the numbers have declined steadily since the 2013-14 term. The number dipped below 5,000 by the 2021-22 term and below 4,500 the next term.

The number of paid petitions (which make up almost all of the court’s cert grants) had declined only marginally since the early 2000s, with almost all of the decline in the IFP docket.

SCOTUSBlog reported last week that the decline is because “the IFP and paid dockets function very differently at the court. Although the paid petitions, as noted above, involve a significant investment of time and resources, IFP filings, by contrast, come from indigent litigants – often prisoners challenging their convictions or confinement conditions and representing themselves. As SCOTUSblog contributor Adam Feldman noted in a 2025 analysis, IFP petitions are typically granted “far less often” because many of these petitions raise fact-specific grievances without broader legal significance, do not present an issue on which the lower courts are divided, or revisit issues the justices have repeatedly declined to take up. Starting at the end of the 2022 term, 98.8% of IFP petitions were denied, compared to 86.0% of paid petitions. In 1946, Chief Justice Harlan Fiske Stone observed that IFP petitions “are mostly chaff.” Justice William Brennan also considered the overwhelming majority of IFP petitions to be “unworthy of full Court review.”

One SCOTUS clerk told SCOTUSBlog that they “flip through [the IFP petitions] pretty fast.” And in a 2010 SCOTUSblog column, Kevin Russell noted that IFP petitions “tend to get buried in a sea of other, mostly meritless, pauper petitions.”

SCOTUSBlog, The Serious Decline in Petitions Before the Supreme Court (May 11, 2026)

Wendy Watson, The U.S. Supreme Court’s Selection of Petitions In Forma Pauperis (2004)

~ Thomas L. Root

Presume Bigots on Jury Are Unfair, 9th Says – Update for May 19, 2026

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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.

‘ALL THEM GAYS AND MEXICANS’ IS NOT QUITE STRUCTURAL ERROR, BUT IT’S NOT HARMLESS, EITHER

Andres Sanchez was on trial for tax fraud. During deliberations, one unenlightened juror told the others, “Can you believe all those people like them gays down in California are coming up here?” Another said, “Yeah. And anyway, the Mexicans, all they want to do is screw us over anyway.”

Andres’s lawyers argued that the comments reflected jury racial bias (not to mention homophobia, which had nothing to do with the trial) and that such bias introduced structural error into the trial.  Structural error is the holy grail of error, a defect so basic that it entitles a defendant to a new trial whether he or she could show the error affected the outcome.

The district court threw the racist juror off the panel before a verdict was reached, and later – after Andres was convicted – denied a new trial on the grounds that he could not show the racist comment affected the jury’s verdict.

Last week, the 9th Circuit reversed.

The Government argued that a simple standard applied by the district court was the correct one, that the verdict should be reversed only if the defendant could show that the dismissed juror’s racial bias affected the verdict. The defense argued that juror bias – even if caught before the jury reached a verdict – was structural error.

The 9th Circuit split the difference. It held that where the bias was caught before a verdict, the error was not structural. However, following the 1954 Supreme Court decision in United States v. Remmer – which requires that a court apply “a heavy presumption of prejudice” where a jury has been tampered with by an outside party – the 9th ruled that Andres should get a new trial.

“Remmer applies when the “jury taint originates from within the jury itself”—including when the alleged taint arises from jurors’ exposure to the partiality of another juror who was removed before deliberations,” the Circuit ruled, rejecting a government attempt to apply a case of attempted juror bribery from United States v. Shapiro. “To the extent the Government argues that Remmer should not apply where the source of juror taint is racial bias, rather than corruption, we disagree. In Shapiro, the juror was “tainted” because he was willing to acquit for improper reasons. The racially biased juror here was similarly willing to convict for improper reasons. If a different standard is required, racial bias should be subject to a more stringent prejudice standard than other forms of juror taint, not a lesser one.’

United States v. Sanchez, Case No. 23-2533, 2026 U.S.App. LEXIS 13615 (9th Cir. May 12, 2026)

United States v. Remmer, 347 U.S. 227 (1954)

United States v. Shapiro, 669 F.2d 593 (9th Cir. 1982)

 

~ Thomas L. Root

Trump Plan to Pardon 250 on America’s 250th Is Rumored – Update for May 18, 2026

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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.

250 PARDONS BY JULY 4TH?

The Wall Street Journal reported last week that White House officials are considering a plan for President Trump to issue 250 pardons in the next several months in commemoration of the USA’s 250th birthday (nominally July 4, 2026, although argument can be made for other dates).

The plan is still reportedly in preliminary discussions, and no one has said that the action would be solely pardon (the forgiveness of a conviction) as opposed to commutation of sentence  (reduction or elimination of imprisonment, fine or restitution without wiping out the underlying conviction).

Trump, himself a convicted felon (although still on appeal in New York state court), has granted clemency more than 2,000 times in his last term and so far this term. The number is only half of the clemencies granted by President Biden, who commuted the sentences of people home on the CARES Act after the incoming Trump Administration signaled that those people would be returned to prison, pardoned people convicted of marijuana possession offenses in the past (none of whom was in prison when the pardon issued), and commuted death sentences of 38 of the 40 people on federal death row (changing the sentences to life in prison without chance of release).

Trump’s clemencies, although fewer in number than Biden’s, have been more controversial. Biden caught flak for pardoning his son and his family. But Trump’s outright pardon on Inauguration Day of 1,500 January 6th rioters, followed by pardons of people connected to his movement or related to wealthy donors to his campaign, have “garnered criticism from both sides of the aisle and encouraged some high-profile candidates to openly campaign to have their convictions or alleged crimes wiped away with a signature,” the Wall Street Journal said.

Trump’s clemency policies, not to mention his appointment of Alice Marie Johnson as White House clemency czar, have resulted in a land rush of clemency petitions. About 5,100 petitions were filed in 2024. The next year, more than three times as many (about 16,150) came in.

The Dept of Justice Office of Pardon Attorney no longer reports the number of petitions currently pending. At the end of March last year, the last data available, over 10,000 petitions were pending, and that was before an additional 13,000 were received.

Meanwhile, anonymously sourced rumors abound. One is that some in the White House worry about announcing any clemency before the November midterm elections. Others predict that Trump could announce 250 “acts of mercy” on June 14, which is both Flag Day and his birthday, or on July 4. One White House official said there are always ongoing discussions about how to carry out Trump’s priorities, but no decision has been made.

St. Thomas School of Law Professor Mark Osler, a federal clemency expert, “has watched with increasing frustration as his clients’ petitions go unanswered. He described the pardon attorney as ‘a zombie office, in the sense that they’re assigning numbers to cases that come in, but it’s not clear that anything’s happening beyond that’,” according to a New Yorker article published a few weeks ago.

“Rather than receiving good or bad news for clients, Osler said, ‘you simply don’t hear. There’s no up, and there’s no down. And so, when they call from prison, or they write, I have to tell them it’s pending. But really, that means it’s being ignored’.”

Osler said that the clemencies that bother him the most are those “that have gone to the people who are fabulously wealthy. These are the people who have been advantaged by so much. With my students, we’ve told the stories of people who are fabulously poor and are being ignored.”

Wall Street Journal, White House Explores 250 Pardons to Mark America’s 250th Birthday (May 13, 2026)

Dept of Justice, Office of Pardon Attorney (May 17, 2026)

New Yorker, Donald Trump’s Pardon Economy (April 27, 2026)

~ Thomas L. Root