Disabled Prisoner Allowed to Use ADA To Pursue Prison Indifference to Medical Needs – Update for September 14, 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.

9TH CIRCUIT LETS PRISONER ADA SUIT GO FORWARD

Ignore, Deny, Dissemble.  The Federal Bureau of Prisons’ (and state prison systems’ as well) approach to inmate medicine seems to follow this formula.  First, ignore the inmate’s medical problem for as long as possible. Then, when it’s no longer possible to pretend the problem isn’t there, deny treatment without a stated basis, let alone justification. Finally, when the inmate is out of options and must sue, dissemble: tell the court that the inmate never complained about the problem, that the problem is no longer there, and that anyway, you are treating the problem so the case is moot.

Last week, beleaguered inmates seeking basic medical care were heartened by a procedural victory in the 9th Circuit, where a state prisoner won the right to a trial under a seldom-used tool in the prisoner’s medical-care toolbox, the Americans with Disabilities Act. The ADA, found at 42 USC § 12101,  prohibits discrimination based on disability. It affords much the same protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964 does based on race, religion, sex, national origin, and other characteristics. In addition, unlike the Civil Rights Act, the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public institutions (including prisons) to make reasonable accommodations for people with disabilities.

The 9th Circuit’s decision reminds us of both how miserable living with a disability in prison can be and how the ADA can be used for relief.

Bilal Adom is a California state prisoner who has a spinal condition that causes him chronic, severe pain and severely limits his mobility. He underwent spinal surgery in 2008 and has an active recommendation pending for a second surgery. He is also a stroke survivor. Adom uses a wheelchair to get around and wears a prison-issued vest that signals he is mobility impaired.

Because of his condition, Adom suffers from incontinence. For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with adult diapers through the prison system’s Durable Medical Equipment program. After Adom was transferred to a different housing unit, prison staff cut off his access to the supplies without explanation. As the Court drily put it, “Without these supplies, Adom would soil himself and his surrounding environment, including his bed and wheelchair.”

Adom asked the prison to restore his access.  His requests were ignored. Following a medical appointment in which a doctor’s “forceful” examination led to Adom’s involuntary urination in his wheelchair seat, he asked the physician to help him get his diapers.  She did nothing. Adom subsequently made multiple written requests for incontinence supplies.

On September 13, 2022, he filed a healthcare services request notifying the prison that he had run out of diapers and that his supplies were not refilled on the normal schedule. In one request, he explained that “he was unable to control his evacuations, that he was using makeshift diapers made of torn towels, trash bags, tissues, and plastic, and that he was ‘humiliated and dehumanized.” On September 18, 2022, Adom submitted a Reasonable Accommodation Request, notifying the prison that he suffered from both urinary and fecal incontinence, that his incontinence supplies were not issued the prior week, that he was soiling his linens, and that he was unable to get new linens or diapers. Between written requests, he informally asked “several building officers” to retrieve, or allow him to retrieve, his incontinence supplies.

A month after his blizzard of requests, the prison formally denied Adom’s request for diapers, telling him instead that staff would “provide [him] a shower as soon as safety and security permits,” and ensure that his soiled clothing was properly washed. The prison denial falsely ruled that “there was no indication found for incontinence supplies.”

Finally, after five months of the worst sort of misery, Adom’s incontinence supplies were restored. Nevertheless, he sued, raising a variety of claims, including an 8th Amendment deliberate indifference count and an ADA count. He sought money damages and an injunction requiring the prison to provide adult diapers. 

The district court was unimpressed and granted summary judgment to the prison system. It held that Adom’s request for injunctive relief was moot because in January 2022, the prison had reinstated his incontinence supplies. The district court further held that Adom was not entitled to money damages under the ADA because he failed to establish that the prison discriminated against him because of his incontinence. Instead, the court said that because the prison provided testing and some alternative accommodations, the district court held that Adom’s evidence “most reasonably indicated a disagreement about medical treatment, rather than disability discrimination.”

Last week, the 9th Circuit reversed the summary judgment decision and sent the case back for trial.

The 9th held that Adom satisfied the three primary elements of his ADA claim and therefore was entitled to declaratory relief where a reasonable jury could conclude that (1) he is disabled within the meaning of the ADA by virtue of his spinal condition, incontinence, or both; (2) he was denied meaningful access to the prison’s toileting and hygiene services because he needed the accommodation of adult diapers to relieve himself hygienically and with dignity; and (3) the denial was by reason of Adom’s disabilities, because it is his disabilities that make it harder for him use the prison’s toileting and hygiene services.

The panel also held that Adom provided enough evidence to earn the right to a trial on whether the prison acted with deliberate indifference when it denied him the benefits of its services (which he must show to get money damages). Rejecting the prison’s contention that a jury could not find deliberate indifference because its staff determined that incontinence supplies were not medically necessary, the panel held that “a public entity is not excused from its obligation to provide a reasonable accommodation solely because it determined the accommodation is not medically necessary or indicated.”

The Circuit remanded the case to the district court.

Adom v. California Dept of Corrections & Rehab, Case No. 24-4756, 2026 U.S. App. LEXIS 27530 (9th Cir. Sept. 8, 2026)

~ Thomas L. Root

SHFTy Business at the BOP – Update for September 11, 2026

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CBS REPORTS ON ‘SHFTY’ DEAL ON BOP NICOTINE POUCHES

Nice deal if you can get it. CBS News reported last Friday that a Florida company that was established only three months ago won what CBS called “an unusual and potentially lucrative deal to be the only business permitted to stock the commissaries of the Bureau of Prisons’ 118 institutions with flavored nicotine pouches.”

The brand of 6-mg pouches, called “mindSHFT,” is not authorized by the Food and Drug Administration for sale in the US, according to a review of FDA data.

The BOP never formally issued a request for bids on a provider for nicotine pouches (which would have been a public document).  In fact, CBS reported, the agency does not even have a signed contract with mindSHFT. Despite this, BOP trust fund chief, Adam Morrow, informed all federal prison commissaries on July 21 that the sale of nicotine pouches “has been authorized,” and the sole approved vendor would be SHFT Holdings Enterprise LLC, the company providing the pouches.

After an anonymous federal employee emailed the DOJ IG and AG Blanche last week to raise concerns, a senior BOP official last Thursday ordered all prisons to stop buying and stocking mindSHFT, according to a Sept 3 internal memo reviewed by CBS News. Federal law prohibits the sale and marketing of nicotine and tobacco-related products that are not authorized by the FDA.

SHFT Holdings Enterprise LLC was incorporated in Florida one week after the BOP published a nationwide “request for information” on May 15 that asked about vendors who could produce “FDA-authorized nicotine pouch products” to sell to federal prisoners. A company spokesman said the company was formed in response to the BOP public notice, but it registered its domain name – https://shftholdings.com — on May 7, the same day the BOP amended its Trust Fund manual to permit the sale of nicotine pouches in commissaries. 

The BOP recommended that commissaries buy three tins of mindSHFT for every inmate, which would have amounted to 459,000 units, or about $3.24 million. The BOP was buying tins at $6.99 per tin and selling them to inmates for $9.10.  One source told CBS News the tins had been “selling like hotcakes.”

BOP accused SHFT Holdings of telling it the pouches were FDA-approved. SHFT denies having said that.  No one has yet determined how SHFT got the contract to the exclusion of other vendors.

A ZYN 10-pack of 6 mg nicotine pouches (150 pouches) is advertised online for $44.90, or about 30 cents a pouch. The SHFT pouches cost inmates about 45 cents a unit.

CBS News, Bureau of Prisons faces scrutiny over startup’s exclusive deal to sell non-FDA-authorized nicotine pouches to prisoners (September 4, 2026)

BOP, PS 4500.12, Trust Fund Manual (May 7, 2026)

~ Thomas L. Root

Judges Aren’t Prefect – Update for September 10, 2026

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DISTRICT COURTS CAN SCREW UP

Hard as it may seem to believe, from time to time, federal district courts can make some pretty rookie mistakes.

Throwing the Baby Out With the Bathwater:  Last week, the 4th Circuit reversed the conviction of Cristian Arias, one of three defendants accused of being MS-13 members who had committed a murder. The defendants’ attorneys agreed on a joint defense that none of the defendants had been involved.  But in her passionate closing argument, Cristian’s attorney suggested that the other two may have done it, but her client had been picked up and was driving around with them after the fact.

The other defendants’ lawyers stood to object several times, but the judge waved them back into their seats. After all the arguments were done, they moved for a new trial because Cristian’s lawyer had essentially accused their clients of the killing. But rather than a new trial or simply instructing the jury that it should disregard counsel’s suggestion, the judge told the jury “to completely disregard the entire closing argument offered by [Cristian’s counsel] on behalf of [Cristian]. You may not use any of the information or arguments she offered as you deliberate in this case.”

The 4th ruled that “even if there were several individual aspects of Cristian’s argument that were improper, much of the argument was not. For instance, at one point during the closing, Cristian’s counsel argued that there was little evidence corroborating [an informant’s] testimony and that there was evidence indicating [the informant] had previously implicated gang members other than Cristian when discussing the murders with other witnesses. Cristian’s counsel also argued there was little evidence indicating Cristian was anything more than a peripheral member of the gang. Whether or not these arguments were convincing aside, no one suggests they were improper. Thus, while the district court enjoys broad discretion to control closing arguments, it abused that discretion in this case by striking all of the argument, even the unobjectionable parts.”

The Circuit criticized the judge for not hearing other counsels’ objections at the time they tried to raise them. Had he done so, the 4th said, the judge could have given proper limiting instructions without throwing the whole baby out with the bathwater.

Sleight of Hand:  Last week, the 9th Circuit reversed Eduardo Valencia’s convictions for Hobbs Act robbery and an 18 USC 924(c) for carrying a gun, and sent it back for a new trial.

Eddie has tattoos covering the backs of both hands. His lawyer wanted him to hold his hands to show them to the jury, so counsel could argue that the video of the crime showed that the robber had no tats and thus could not be her client.  Maybe the judge was mindful of OJ Simpson’s attempt to try on the killer’s gloves and blurting out, “They’re too small,” without taking the stand. This non-testimony testimony let attorney Johnny Cochran memorably argue at closing, “If it doesn’t fit, you must acquit.” For whatever reason, the judge held that Eddie could not exhibit his hands to the jury unless he took the stand.

The district court found that such a display would be testimonial, “and therefore that [the defendant] would have to take the witness stand and subject himself to cross-examination” if he showed his hand tattoos to the jury.Eduardo declined to take the stand, and he was convicted.

The 9th ruled that its own precedent in United States v. Bay established that exhibiting a tattoo was not testimonial. On appeal, the government conceded that the district court’s holding was wrong, but argued the error was harmless because the jury could see Eddie’s hands when he was sitting at counsel table. “That the jury could see Eduardo’s hands in open court misses the point,” the Circuit held. “The fundamental error is that the district court forced Valencia to take the stand in order to display an identifying physical characteristic—hand tattoos—to the jury. That was precisely the error in Bay, and it is the error here.”

United States v. Arias, Case No. 24-4308, 2026 U.S.App. LEXIS 27288 (4th Cir. September 3, 2026)

United States v. Valencia, Case No. 24-3820, 2026 USAppLEXIS 27285 (9th Cir. Sept 3, 2026)

United States v. Bay, 762 F.2d 1314 (9th Cir. 1984)

~ Thomas L. Root

President Grants Clemency to Some Normal People! – Update for September 8, 2026

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TRUMP GRANTS CLEMENCY TO 30 MOSTLY NON-WIRED PRISONERS

Regardless of how one feels about President Trump, no one disputes that he retains the ability to be “unpredictable and unorthodox” (as The New York Times put it): After nearly a year of distributing pardons and commutations only to people who are politically or financially wired to his Administration, last Thursday, Trump issued 30 clemency grants largely to just plain folks.

The clemency grants went to an eclectic group. The news accounts focused on a pardon granted to Emory Jones, a longtime associate ‌of rap mogul Jay-Z (released in 2010). However, the pardons included mostly lower-profile people serving long sentences and lacking obvious connections to the president or his allies.

Unusually, as of Sunday, the White House had released neither a press release trumpeting the clemencies nor list of recipients. Instead, the clemencies were announced by White House Pardon Czar Alice Marie Johnson on her X-formerly-known-as-Twitter account. She said

I am deeply grateful to President @RealDonaldTrump for granting clemency and pardons to 30 deserving individuals whose cases we carefully reviewed and brought forward—and to the White House Counsel team, led by Will Scharf, for the hard work behind these decisions.

In fairness to the Administration, the focus on a Jay-Z associate may have stemmed from Ms. Johnson identifying him in her post. The media also noted that John Dougherty, a Philadelphia union boss who had served a third of his 6-year sentence, had his sentence commuted. However, a White House official told the Times that “Dougherty’s sentence was commuted to allow him to care for his terminally ill wife. Her father had been caring for her, but he passed away while Mr. Dougherty was in prison, the official said.”

While too many federal prisoners face similar circumstances, it’s hard to argue against commutation under Dougherty’s circumstances.

Two of the clemencies were granted to prisoners serving time for  marijuana trafficking  convictions, according to Marijuana Moment.

Thursday’s clemencies suggest that the White House may be abandoning Trump’s very unpopular custom of clemencies for the rich and powerful.  Ms. Johnson seems largely to have been sidelined since her appointment as Trump’s “pardon czar,” and the Dept of Justice’s Office of Pardon Attorney (under the execrable leadership of the recently departed Edward Martin) has had almost no role in Presidential clemencies.

As the Times noted, Trump’s “use of clemency has spawned a cottage industry of lawyers and lobbyists offering to use their connections to bring cases to his attention in exchange for hefty fees.” Thursday’s very low-key and anodyne clemency action may be Trump’s way of defusing the “pay-to-play” criticism leveled against his Administration over its grants to 1,700 people ⁠(1,500 of whom were January 6th rioters) in the last 20 months, some of whom spent a million bucks or more to secure their grants.

A return to normal clemency procedures – as opaque and clunky as it has traditionally been – would be an improvement.

In other pardon-related news, former DOJ Pardon Attorney Elizabeth Oyer – easily the most pro-clemency lawyer to occupy that post in the last 30 years – sued the government last Thursday to get her job back, alleging she was unlawfully dismissed for refusing to restore gun rights to actor and Trump friend Mel Gibson.

In the suit, filed Thursday in federal court in Washington, former Pardon Attorney Elizabeth Oyer says her firing last year violated her constitutional rights and federal civil service protections.

Oyer refused her boss’s demand that she recommend restoring Gibson’s gun rights despite his domestic violence-related conviction. Hours later, DOJ security officers arrived at her office with a termination letter signed by then-Deputy Attorney General Todd Blanche and escorted her from the building, according to her Complaint.

“This case is about much more than what happened to me,” Oyer said in a statement released by her attorneys. “I was fired because I refused to put politics ahead of my duty to the American people.”

NY Times, Trump’s Latest Clemency Grants Benefit Drug Offenders, Union Boss (September 4, 2026)

Alice Marie Johnson @alicemariefree, Post on X (September 4, 2026)

Marijuana Moment, Trump Releases More Federal Marijuana Prisoners As DEA Considers Rescheduling Cannabis (September 4, 2026)

Politico, Former pardon attorney sues DOJ for firing over Mel Gibson gun rights case (September 2, 2026)

Complaint, Oyer v. Blanche, Case No 1:26-cv-3092 (Doc. 1) (D.D.C., September 3, 2026)

~ Thomas L. Root

Sentencing Commission Looks Inward for Next Year – Update for September 3, 2026

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SENTENCING COMMISSION DREAMS BIG, DISAPPOINTS THOSE WHO WOULD JUST LIKE A LITTLE PROGRESS

The US Sentencing Commission adopted its priorities for the coming 2027 Amendment cycle last week, plans that can be summed up as “We’re gonna do some stuff.”

What’s missing are concrete proposals to reconsider guidelines on meth purity, sex offense, or felon-in-possession, to name a few.

The Commission said it intends to “undertake an evaluation of the guidelines and federal sentencing practices in light of the Commission’s mission set forth in the Sentencing Reform Act, the statutory purposes of sentencing in 18 USC 3553(a)(2), and relevant legal developments that have occurred in the past four decades.”

The Commission also expects to undertake a comprehensive review of its Rules of Procedure and consider whether any amendments to such Rules may be appropriate to further the agency’s statutory purposes and enhance public engagement with and understanding of the Commission’s work. As part of the priority, the Commission expects to review current practices and consider possible changes regarding: (a) what Commission work is conducted in public; (b) what Commission policymaking materials should be made public; (c) how stakeholder and public involvement is structured, including through rules about ex parte communications; and (d) what analyses supporting agency policymaking are conducted and released publicly.”

Having the USSC start doing more than walking into its meeting room, holding a couple of unanimous votes on guideline changes, and calling it a wrap, all in 20 minutes, would be a good idea. Likewise, when an idea – such as changing the meth purity guidelines – dies, a public funeral where the reasons for the rejection are explained would benefit those of use the Commission likes to call its “stakeholders.”

Writing in Sentencing Matters substack, University of Minnesota law professor Sam Merchant said,

The Commission is exploring at least six substantive changes covering aspects like who sits at the table, adding as nonvoting seats a member of the Criminal Law Committee of the Judicial Conference and a representative of the Federal Public Defenders, making it harder to make amendments retroactive, disclosing Commissioners’ ex parte communications, increasing public participation in agenda-setting, and publicly disclosing meeting materials and nonpublic minutes… If adopted in full, the Commission could operate more transparently, add more voices and broaden participation at meetings and hearings, and could need five votes, rather than four, to apply an amendment retroactively.

USSC, Final Priorities for Amendment Cycle (Aug 27, 2026)

Sentencing Matters substack, Summaries: The U.S. Sentencing Commission’s Final 2026-27 Policy Priorities, Proposed Changes to Rules of Practice and Procedure, and Drone Amendment (August 31, 2026)

~ Thomas L. Root

They Pardoned Him, But Only After A Little Medical Neglect – Update for September 1, 2026

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J6 BOP PRISONER GETS PARDON, THEN SUES FCI ELKTON FOR LOUSY MEDICAL CARE

A retired Pennsylvania firefighter who threw a fire extinguisher that hit two police officers during the Jan 6, 2021, attack on the US Capitol has sued FCI Elkton for failing to treat his numerous medical ailments. The BOP’s medical nonfeasance, according to the plaintiff, eventually led to surgery and chronic pain.

Robert Sanford was one of more than 1,500 people President Trump pardoned for crimes committed during the Jan 6 attack.

Sanford was sentenced in 2023 to four years and four months in prison for throwing the fire extinguisher at officers defending the Capitol while calling them “traitors.” He was released in October 2024 after the BOP filed a compassionate release motion asking his sentencing judge to release him about 19 months early on a 52-month sentence because of Sanford’s undisclosed “terminal medical condition.” The court filing redacted the medical condition.

After his release, Trump pardoned him and 1,499 of his closest friends, all fellow rioters.

Sanford’s lawsuit says Sanford was physically fine when he arrived at the prison. In early 2024, he developed worsening back pain that went untreated despite multiple requests for medical care, the lawsuit says. He filed the suit in the Eastern District of Pennsylvania, but it was transferred to Cleveland.

A doctor prescribed a steroid in May 2024, but it did not help, according to the lawsuit. In July, Sanford reported that the pain was so severe that he struggled to walk. Later that month, he returned to the doctor in a wheelchair and was again prescribed steroids. The wheelchair was replaced with a cane, the lawsuit says.

He returned to the doctor, who accused him of faking his illness. Sanford was then thrown into the SHU, according to the lawsuit.

After an X-ray on Aug 1, he was diagnosed with arthritis in his hip and hip impingement syndrome, the lawsuit says. He fell while using a walker the next day. Despite his pleas for help, he was not seen by prison doctors for four days.

Doctors then sent him to a nearby hospital, where they found that he had serious blood clots, a badly fractured hip and lung cancer, according to the lawsuit.

Seriously hurting but accused of faking it?  Who’s ever heard of such a thing happening at the BOP?

Sanford v, FCI Elkton, Case No 4:26-cv-02034-S (ND Ohio, filed May 18, 2026)

~ Thomas L. Root

Smith Takes BOP Job and Shoves It – Update for August 31, 2026

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SMITH PACKS IT IN AFTER A YEAR AT THE BOP

Bureau of Prisons Deputy Director Joshua Smith, pardoned for a drug offense that happened 30 years ago, abruptly announced last Monday he was leaving the agency without giving a reason.

After his release from prison a quarter century ago, Smith built a Knoxville-based service company into a multimillion business while using it and a foundation he started to give recently released inmates employment and support in staying out of trouble.

In a post from his personal X account, Smith thanked President Trump for the chance to serve as BOP’s second in command, an opportunity available because Trump pardoned him for in 2021:

Three decades ago, I walked through the gates of a federal prison as an inmate. Years later, after receiving a presidential pardon, I was given the opportunity to walk back through those gates as Deputy Director of the Federal Bureau of Prisons, serving the very President that gave me that pardon. For that, I will always be grateful to President Donald J. Trump.

By all accounts, Smith’s leadership at the BOP was unconventional. He became part of BOP Director William K. Marshall III’s leadership team that pushed an agency Walter Pavlo described last week as “known for incremental change” toward a different management philosophy. “During their time together,” Pavlo said of Marshall and Smith, “the Bureau changed how it selected leaders, challenged its longstanding relationship with the union representing BOP employees, began rewriting decades-old policies, secured significant funding to address deteriorating prisons, created teams to attack infrastructure and operational problems and announced the closure or restructuring of several institutions.”

Smith traveled across the country to dozens of prisons – some visits being unannounced – and hosted a BOP-centric podcast called “Transparency Talks.” Smith helped transfer or replace about 70 pct of BOP executive staff — including several top wardens — and focus on leadership development. “At the end of the day,” he said, “bureaucracy is bureaucracy. I hope what I was able to do was at least start a fire there.”

Smith had a tense relationship with some of BOP employees. A BOP employee union rep at FCI Hazelton said, “The deputy director of the Federal Bureau of Prisons, with a criminal history of his own, has stepped down from the post.” American Federation of Government Employees Local 420 Steward Jason Shaffer said Smith’s appointment was “a slap in our face. To have an inmate who was once housed in our prison who was running the U.S. Bureau of Prisons has devastated our country and greatly affected the staff who have worked hard for the BOP.”

Smith would not say why he resigned, but he said he didn’t need the job.

CBS News, Bureau of Prisons No. 2 official who was pardoned for drug crimes abruptly departs (August 25, 2026)

Forbes, Josh Smith Abruptly Leaves Bureau Of Prisons After Year Of Changes (August 25, 2026)

WV Metro News, FCI Hazelton workers applaud resignation of BOP deputy director, former inmate (August 25, 2026)

~ Thomas L. Root

Wheels on the Bus – Update for August 28, 2026

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ALONG FOR THE RIDE

Writing in Forbes last week, prison consultant Walter Pavlo argued that courts’ expanded use of ordering self-surrender after federal sentencing rather than remanding prisoners into custody for delivery to prison would benefit both prisoners and the government.

The federal government operates the Justice Prisoner and Alien Transportation System, which moves inmates from jail to prison and between prisons, among other duties, with annual operating costs of up to $80 million. “When a low-risk defendant who could have voluntarily surrendered is instead remanded at sentencing,” Pavlo wrote, “the government assumes responsibility for housing, healthcare, guarding and transporting that person through this system until he reaches his designated BOP institution.

Until the prisoner is actually moved, his or her detention cost is borne by the U.S. Marshals Service, which spent about $2.2 billion on housing prisoners in 2025, with an average daily detention cost of $121 per prisoner

Beyond that, Pavlo contends, a designated BOP institution is built around serving a sentence. There can be work assignments, education, vocational training, recreation, treatment and, depending upon eligibility and location, programs such as the Residential Drug Abuse Program and release preparation. A detention center or county jail usually lacks meaningful programming because prisoners come and go randomly.

Pavlo, as usual, makes good sense. Nevertheless, too many judges who remand do so even when the prisoner has been on presentence release without problem. Without any incentive to make a remand decision with efficiency and economy in mind, courts’ remand orders often seem to be capricious rather than reasoned.

Forbes, Federal Judges Waste Taxpayer Money By Remanding At Sentencing (August 18, 2026)

~ Thomas L. Root

New Gun Restoration Rule Sends DOJ Fox to Guard the Henhouse – Update for August 27, 2026

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DOJ ADOPTS FINAL GUN RIGHTS RESTORATION RULE

The Dept of Justice last week published a final rule adopting a procedure for restoring gun rights for people convicted of certain nonviolent felonies.

It’s a victory for the government’s goal of being the gatekeeper on 2nd Amendment rights. It’s a loser for everyone else.

The process will be restrictive and vigorous, coming with a long list of “presumptive disqualifiers.” Those include a conviction at any time in the past for a host of crimes of violence, for brandishing a gun, for witness tampering, or if you’re subject to sex offender registration (to name just a few). There is a 10-year wait for people convicted of drug offense or prior misdemeanor crimes of domestic violence. Gun rights won’t be restored if your conviction is less than five years old or you’re still locked up or on supervised release.

The application requires copies of prior criminal judgments, indictments, plea agreements and a state criminal history for the past 25 years. You must provide contact information for three character references, none of whom is prohibited from possessing a gun. Finally, you have to submit electronic fingerprints.

The program will be run by the Office of Pardon Attorney, a fact which does not provide comfort that decisions on gun rights – given that OPA as recently as July 1st had a 20,000-document backlog of petitions for clemency –  will be made quickly.

A curious and not-very-promising provision of the program is that it will be open on September 25 for six weeks only to “invited candidates.”  No one seems to have explored who the “invited candidates” might be, but given the Administration’s track record of favoring people with money, celebrity status and connections, the chance that the program may be flooded with favored applicants is real. Mel Gibson got his rights back, but there are plenty of MAGA-loving people with money or status in line behind him.

On November 4, the program will open to the public for 5,000 candidates. On January 4, 2027, the process will open to additional candidates, with a $30 processing fee required for the first time.

If your application is denied, you will have the right of judicial review.

Associated Press hopefully reported that the program is a victory for Second Amendment advocates who have long pushed for nonviolent people with felony convictions to be given a pathway to regain their legal right to own firearms.” It quoted Blanche as saying, “The Second Amendment is not a second-class right, and the federal government should not permanently deprive Americans of a constitutional right without regard to whether they pose a danger to public safety,” Blanche said in a statement. The attorney general said the new process will protect “public safety while giving deserving Americans a real path to restoration.”

However, the program may be a fig leaf that lets the Administration avoid a Supreme Court showdown over the 2ndAmendment and 18 USC 922(g) while deciding for itself whose 2nd Amendment rights will be honored and whose will be ignored. If § 922(g)(1) is unconstitutional as applied to some people despite their convictions, setting up a discretionary government process whereby the unconstitutionality may be corrected in the future is hardly comforting. The government may as well set up a panel to decide that you can exercise your 1st Amendment rights to make statements or publish flyers after you submit to a bureaucratic review process.

If a conviction is insufficient to strip 2nd Amendment rights from the start, an argument that you should be convicted of a § 922(g)(1) offense anyway because you didn’t petition the government to give you what you always were constitutionally entitled to is scary.  

Look at Ray Luna.

Ray was convicted of a drug possession felony. Much later, he was caught with a gun and charged as an 18 USC § 922(g) felon in possession. The District Court dismissed the indictment, holding that disarmament over a mere possession conviction – even a felony one z– violated Ray’s 2nd Amendment rights.

The government – the same government that will grant or deny you your 2nd Amendment rights – appealed to the 5th Circuit, arguing that it had information that Ray had really been trafficking drugs, despite the fact that he had not been charged with or convicted of that. Even if he had not, the US Attorney contended, drug possession was analogous to colonial-era laws regulating trafficking in tobacco. This week, the 5th agreed with the District Court and threw out the indictment:

[W]e consider only whether Luna’s predicate felony supports disarmament… For the purposes of assessing [a defendant’s] predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year… Against the government’s request to ‘account [for] [the defendant’s] entire record, which is necessary to properly assess the extent of his violent conduct,’ we reject such an invitation and instead confine our inquiry to [the defendant’s prior] conviction—the only predicate § 922(g)(1) offense—based on the rule of orderliness.

Calvin, remember that time you laid out Susie Derkins with the snowball when you were both in 1st grade? If you’re convicted of a nonviolent white-collar crime 40 years in the future, you can bet the DOJ will resurrect the Derkins incident as proof that you should be denied possession of grandpa’s antique .22.

Some 2nd Amendment protection: Sending the foxes to guard the 2nd Amendment henhouse.

Federal Register, Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms (August 20, 2026)

Associated Press, Justice Department creates a new pathway to restore gun rights for some convicted of felonies (August 17, 2026)

United States v. Luna, Case No. 25-40272, 2026 U.S. App. LEXIS 25846 (5th Cir. Aug. 24, 2026)

~ Thomas L. Root

Non-Buyer’s Remorse – Update for August 25, 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.

ACTIONS SPEAK LOUDER THAN WORDS

Derek Fields was indicted for kidnapping, for being a felon in possession of a gun, and a host of other violent offenses stemming from holding a man hostage for a ransom.

In a 28 USC § 2255 habeas corpus motion after his conviction, Derek claimed that during jury selection, his lawyer had passed him a plea offer from the Government, told him it was a 37-year plea deal, and instructed him to “just read it.” His lawyer offered no other information or advice, Derek said, so he rejected the offer. Derek argued that “but for” his lawyer’s “deficient advice[,] there is a reasonable probability [that he] would have pleaded guilty and been sentenced to less jail time.”

Derek said that if his lawyer had explained the benefits of taking the plea deal, he would have signed it. The district court didn’t buy it and denied the § 2255 motion. Last week, the 7th Circuit agreed.

To earn the right to an evidentiary hearing on his § 2255 motion, the Circuit ruled, Derek had to establish prejudice. This kind of prejudice means that “it is reasonably probable that but for the incompetent advice of his attorneys, he would have accepted the government’s plea offer and pleaded guilty; and it is reasonably probable that the judge would have imposed a lower sentence.”

The problem was that Derek had already gone through two prior lawyers and a number of plea discussions, and their notes showed that he “had no inclination for a plea agreement.” In response to a government pre-indictment plea offer the Government had made, Derek told his lawyer it didn’t “make[] a difference whether it is 30 years or 33 years, or 37 years,” since any of those were “a lifetime sentence because his mother will be gone, his grandmother will be gone, and his kids will be grown.” The 7th found that Derek “remained steadfast about rejecting any plea offers despite [his lawyer’s] repeated warnings about the likely outcome of a trial.” The appellate court ruled that “[t]his consistent refusal to take a plea agreement is evidence that [Derek] did not suffer prejudice due to [his attorney’s] failure” to explain the 37-year offer” because he wouldn’t have taken it anyway.

Derek said in his § 2255 motion that he would have taken the deal if his lawyer had explained it, but he nowhere “explained why [his lawyer’s] repetition of the same points would have made a difference, nor does he connect this broad allegation to the specific 37-year plea offer at issue here. As a result, Fields’s declaration does not rebut the undisputed and detailed record evidence that he would have refused any offer contemplating 37 years’ imprisonment.”

The lesson here is that actions speak louder than an after-the-fact claim that the movant would have taken the offer if only… A § 2255 movant must explain why the plea offer he claims his lawyer did not disclose or explain was different from any prior offers he might have turned down.

Fields v. United States, Case No. 24-2913, 2026 U.S. App. LEXIS 24725 (7th Cir. Aug. 17, 2026)

~ Thomas L. Root