BOP Seeks SCOTUS Stay on Transgender Order – Update for October 8, 2026

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BOP TAKES TRANSGENDER POLICY INJUNCTION TO SUPREME COURT

The Trump Administration last week asked the Supreme Court to lift a lower court order blocking the BOP from imposing new restrictions on health care for transgender inmates.

The petition cited security concerns to justify its intervention. “In nullifying BOP’s exercise of its statutorily conferred authority to adopt a policy that prison administrators have determined is necessary to maintain institutional security, the court’s order causes irreparable harm to the government and to the public,” the petition said.

Three transgender inmates sought to file a class action lawsuit in federal court in Washington, D.C. The case has a complicated procedural history, but Senior U.S. District Judge Royce Lamberth issued the most recent order barring the BOP from implementing its 2026 policy on Aug. 26, and a divided panel of the US Court of Appeals for the DC  Circuit turned down the government’s request to pause Lamberth’s order.

The new policy adopted by the BOP would prohibit transgender inmates from obtaining gender-transition surgeries, hormone therapy, and “social accommodations” (such as makeup, wigs, and padding). Courts have blocked the implementation of the new rules in part because the administration had no evidence that such treatments had ever caused security concerns.

The BOP, however, is arguing that the courts should have deferred to its experience and expertise in finding that security and prison administration concerns independently justified the 2026 policy, which departed from prior rules permitting such treatments.

“Considerations of ‘institutional security’ are ‘peculiarly within the province and professional expertise of corrections officials’,” the BOP argued, “and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.”

A response by Respondent Alishea Sophia Kingdom is due by 4 pm today, October 8.

Upon retaking office in January 2025, Trump immediately issued an anti-transgender executive order claiming to restore “biological truth to the federal government.” The BOP subsequently issued a memorandum prohibiting requests for underwear that do not align with an inmate’s sex assigned at birth and barring funds for any medical procedure, treatment or drug intended to make an inmate’s appearance conform to a different gender identity than the one the inmate was born with.

Courthouse News Service, Trump taps SCOTUS in bid to block gender-affirming care for transgender inmates (September 28, 2026)

SCOTUSBlog, Trump administration asks justices to block lower court order on transgender inmate policy (September 28, 2026)

~ Thomas L. Root

There’s Power in 5G1.3 – Update for October 6, 2026

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POWER 5(G1.3)

We’re in the middle of a messy college football season, and we all know who the Power Five used to be.  They’re now just the Power Four, but I’m old school, and I need “Power Five” as a hook for today’s post.

In the sentencing world, Sentencing Guideline 5G1.3 is a powerful if sleepy Guideline, one that delivers sentencing authority and flexibility to a district court to which many judges seem oblivious.

It often happens that defendants will be charged with state offenses and later federal offenses arising from the same incident. I one chad a guy who picked up four Arkansas convictions for methamphetamine possession.  After he started serving his state sentences, federal authorities charged him in a meth conspiracy that swept in all of the conduct that underlay the state convictions.

By the time he got to federal sentencing, he had served 72 months for his state offenses. However, under federal sentencing statutes and the Guidelines, none of that state time would otherwise count against his federal sentence obligation.

That’s where § 5G1.3 comes in, permitting a federal court to adjust the federal sentence to account for prior state time served in a related case.

In the case I was working on, the judge incorrectly said that he couldn’t adjust anything in the 144-month sentence he imposed to account for the time the defendant had already served.  The mysteries of § 5G1.3 were beyond him.

The same thing happened to David Koan. David pled guilty to a child pornography charge. By the time his federal sentencing came around, he had already spent 40 months in state prison for a conviction arising from the same incident.

At sentencing, defense counsel asked the court to adjust David’s sentence to account for the time he had already done in the state. The district court refused, holding that it lacked the ability to do so. The judge told David to take his request up with BOP (probably knowing how futile that exercise would turn out).

David got a federal sentence of 720 months to run concurrently with his state sentence yet to be served (but he got no credit for time already served).

David appealed, and last week the 5th Circuit reversed his sentence.

Guideline 5G1.3(b) directs that “the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment…”  After the district court stated that it did not have the power to award credit for time served, David’s lawyer responded that the court could either “backdate” or “adjust the sentence accordingly” to account for the time served. The Circuit said that this suggestion was good enough to preserve the objection.

While a district court cannot award credit for time served under 18 USC § 3585(b), it nevertheless “retains residual authority to reduce defendants’ sentences based on previous time served related to their offenses… That is, § 5G1.3(b) permits a court to adjust a sentence if the defendant has served time on a certain undischarged (i.e., incomplete) term of imprisonment as long as the time previously served must have “resulted from another offense that is relevant conduct to the instant offense,” and the previous time served “will not be credited to the federal sentence by the Bureau of Prisons… When those two criteria are met, § 5G1.3(b) instructs the court to reduce the sentence for time served and impose the sentence to run concurrently to the remainder of the undischarged term.”

The 5th said that “in sum, § 3585(b) governs the calculation of credit for time spent in custody prior to sentencing, which can be awarded exclusively by the Bureau of Prisons after sentencing, whereas § 5G1.3(b) governs sentence adjustments applied by a federal judge at the time of sentencing to account for time served on a related, undischarged term of imprisonment. Here, the district court erred when it seemingly conflated the two.”

United States v. Koan, Case No. 25-10850, 2026 U.S.App. LEXIS 30283 (5th Cir., October 2, 2026)

~ Thomas L. Root

BOP Is “Union Strong” Again – Update for October 5, 2026

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COURT ORDERS BOP TO REINSTATE 30,000-MEMBER EMPLOYEE UNION

US District Judge Vernon D. Oliver (D. Conn.) last week ordered the Federal Bureau of Prisons to immediately restore union protections for more than 30,000 employees after the BOP unilaterally ended the Council of Prison Locals 33’s collective bargaining agreement a year ago.

In March 2025, President Trump issued an executive order that sought to exclude federal offices involved in national security or intelligence work from having collective bargaining agreements with staff. That order also applies to the Justice Department, which includes the Bureau of Prisons.

The BOP did not terminate CPL-33’s agreement until September 25, 2025. Now, a year later, Judge Oliver has held that BOP Director William K. Marshall III’s decision to cancel the union contract was arbitrary and that his stated reasons were contrived and pretextual.

In the termination letter Marshall sent a year ago to CPL-33 President Brandy Moore White, he cited President Trump’s Executive Order 14251, an edict that banned unions in areas involving national security (which included the BOP) as the reason for the termination, “But that same day,” the Order said, “Director Marshall posted his message that heavily criticized CPL-33’s operations and stated that the ‘whole purpose of ending this contract’ was because the ‘union [was] an obstacle to progress’ and ‘the current contract has too often slowed or prevented changes.’ The letter did not state that EO 14,251 required the termination of the CBA. Nor did it mention the national security rationale underlying the Executive Order. Instead, it only cited to [Marshall’s] criticisms of the union. Although an agency may have multiple reasons for its action, it cannot offer an entirely pretextual explanation that is undermined by its own contradictory assertions made the same day.”

CPL-33 President White said in a statement that she was looking forward to the BOP “promptly complying” with Judge Oliver’s order. The BOP did not immediately respond to a New York Times request for comment.

The ruling is a blow to Trump’s effort to strip hundreds of thousands of federal workers of union protections.

Judge Oliver, whose preliminary injunction will stand until the case is litigated, hinted at “multiple” other problems with the BOP’s termination, but held that addressing them now is premature. The ruling does not hold that BOP management cannot change its policies or working conditions, nor does it determine whether Trump’s broader executive order eliminating collective bargaining requirements at certain federal agencies is lawful.

Instead, it addresses a fundamental 5th Amendment due process precept about government decision-making, which is when a federal agency takes consequential action, the reason it provides for doing so is significant.

Marshall wanted the BOP to embrace real change faster than he could make CPL-33 move. His September 2025 message made his frustration (and intention to cut the Gordian knot) clear. Now, one year later, a federal judge has ordered the agency to bring the union back to the table.

The NY Times, Federal Judge Orders Bureau of Prisons to Restore Union Protections (September 30, 2025)

Memorandum and Order,  National Council of Prison Locals v BOP (September 26, 2026)

Forbes, Judge Orders Bureau of Prisons to Reinstate Collective Bargaining (September 30, 2026)

CBS News, Judge orders Bureau of Prisons to restore its union’s collective bargaining agreement (September 29, 2026)

~ Thomas L. Root

Not Thinking About A Big White Bear – Update for October 2, 2026

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REVOCATION SENTENCE IS REASONABLE BUT UNRELIABLE

For not the first time, a sentencing decision has reminded me of Fyodor Dostoevsky’s big white bear.

In his Winter Notes on Summer Impressions, an 1863 account of travels in Western Europe, Dostoevsky recounted a childhood club he and his brother formed had as its initiation ritual the requirement that the aspirant to membership stand in the corner for five minutes and not think about a big white bear.

Hassan-Nur Mohamed faced deportation to Somalia when he was released from federal prison in 2013. But deportation was kinder and gentler back then, so he was put on supervised release while his immigration case was pending. But just before his supervised release term expired, he learned that he was about to be deported, so he fled to Canada and sought asylum there.

His probation officer filed a violation for leaving the jurisdiction without permission.

In 2025, Hassan decided to sneak back into the United States (perhaps unaware of how fussy ICE had gotten about people like him). He was convicted of aggravated reentry.  At his revocation hearing, the district court counted Hassan’s aggravated reentry conviction as an additional supervised release violation (commission of a new crime), which would make Hassan’s guidelines range 4-10 months instead of the lower 3-9 months, which would have applied if the absconding violation were the only count against him.

At the time, Rico v. United States was pending in the Supreme Court. Recognizing that the Rico court could rule that absconding did not stop the supervised release term from expiring, Hassan’s judge said that while he was counting the aggravated reentry violation, he would only give Hassan 9 months, so that if Rico went against the government, the sentence would be within the lower guideline range.

Rico ultimately held that the Sentencing Reform Act of 1984 does not authorize an automatic extension of supervised release when an individual absconds.  This meant that Rico’s 2025 aggravated reentry conviction happened after his supervised release term ended,  a conclusion that applied equally to Hassan’s aggravated reentry violation.

On appeal, the 6th Circuit said the district clearly erred in counting the reentry conviction. The Government, however, argued ‘no harm no foul,’ because Hassan’s revocation sentence was within the range for the lower-level absconding violation. But the Circuit disagreed, holding that the Guidelines calculation was not merely academic:

While the district court stated “that this would be the appropriate sentence, whether this is a Grade B or a Grade C violation,” its only stated support for this conclusion was that “the violations are… serious.” And in considering the seriousness of ‘the violations,’ the district court included the April 5, 2025 re-entry and subsequent conviction.

But Mohamed’s 2025 conviction was not a supervised-release violation at all. Therefore, the passing statement that ‘this would be the appropriate sentence, whether this is a Grade B or a Grade C violation’ is not enough to overcome the need for confidence that, even without considering Mohamed’s new conviction to be a supervised-release violation at all, the district court would have imposed the same sentence… Although the ultimate sentence is reasonable, the district court did appear to consider Mohamed’s 2025 conviction a supervised-release violation and to consider that violation in determining his sentence. The Supreme Court has made it clear that this is an error… Even though the district court’s ultimate action appears a quite reasonable resolution given the uncertainty as to the future outcome in Rico, the error is not harmless even if it resulted in only a small difference in the sentencing range.

The District Court said it could sentence Hassan as if the big white bear were not in the room, even while acknowledging that it was. The 6th Circuit said that may work for Fyodor Dostoevsky’s club, but it doesn’t for supervised release revocation sentences.

United States v. Mohamed, Case No. 26-3017, 2026 U.S.App. LEXIS 28783 (6th Cir. September 18, 2026)

~ Thomas L. Root

Fill Out This Form (In Triplicate) – Update for October 1, 2026

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THE CURE FOR BUREAUCRACY IS… MORE BUREAUCRACY?

Writing in the early 1860s, political scientist John Stuart Mill theorized that bureaucracy is a distinct form of government that had certain advantages, the most important being the accumulation of experience in those who actually conduct the affairs. Nevertheless, he wrote that ultimately bureaucracy stifles the mind, and that “a bureaucracy always tends to become a pedantocracy,” that, a system run by people who “annoy others by overly focusing on minor details, trivial errors, and formal rules rather than common sense or the main point.”

The BOP’s management of its First Step Act obligations is hardly bureaucracy at its finest. A Dept of Justice Inspector General’s report issued last May found that the BOP wasted nearly all of the $400 million or so it was given in 2022 to implement the Act. It gave the Dept of Labor $120 million for a grant program the agencies were supposed to implement together, to award money to grantees who developed vocational and skills-building programs for inmates. After transferring the money, the BOP paid no attention to what was going on, with the result that the program proceeded at a snail’s pace.

A better example of BOP incompetence (although it has tinges of actual fraud) is that the Bureau decided, without authorization, to spend $250 million of the FSA budget to reimburse itself for free inmate phone calls offered during the pandemic. The icing on the cake: the money the BOP claimed for the free phone program was $100 more than what it actually cost the agency. The BOP has custody of white-collar inmates whose offenses pale by comparison.

The Inspector General found that underlaying a lot of the BOP’s problem was that unreliable data impaired the Bureau’s ability to determine whether the First Step Act was accomplishing its objectives or even to accurately communicate its implementation progress to Congress.

In July 2025, BOP Director William K. Marshall III established a First Step Act Task Force to address inmate complaints that FSA home-confinement paperwork was not being processed and staff complaints that the software systems they relied upon were not always displaying accurate dates. 

The Task Force was charged with manually identifying and correcting community-placement dates, moving eligible inmates to cheaper home confinement, manually calculating placement dates that combined FSA and Second Chance Act prerelease custody authority, and reviewing prisoners still inside institutions for additional community-placement opportunities. 

Writing in Forbes, Walter Pavlo said, “The Task Force was an intervention designed to solve immediate problems. The new First Step Act Office appears intended to make that intervention permanent.”

The office, starting with a staff of 15, will oversee the administration and calculation of FSA credits, implement programming, develop policy guidance and training materials nationwide, and manage resources and budget allocation for FSA initiatives.

Marshall told Spectrum News last week that the office will also provide answers about FSA and correcting issues with earned time credits and other program factors. Up to now, Marshall said, FSA Task Force staffers were working on FSA issues in addition to other responsibilities. “This is their main focus [now].”

Marshall acknowledged there are some issues that will take long-term planning to fix. “The lack of [halfway house] beds is… a real issue that we have to face,” Marshall explained. “We don’t control the RRC beds, and we don’t control those staffs – the procurement process takes too long. We’re working on the procurement process as far as trying to obtain some of these contracts and get some of these beds, but it does take a lot of money. It takes a lot of money to do those things, but that’s not the reason to not do it…so we still have to push through and get it done.”

The BOP is an agency that tends toward window dressing. Just last week, it trumpeted that its Program Review Division had been named the “Division of Compliance and Oversight (DCO)” and the Program Review Branch of the Program Review Division (did you follow that?) as the Internal Auditing Branch.  These new names, “effective immediately,” are intended “[t]o more accurately reflect” the offices’ mission,” the BOP said.

Like changing Twitter to “X.” Same messy service by a different name.

If inmates cannot easily bring FSA issues to the new office, which will be physically located in Washington DC and Grand Prairie, Texas, the First Step Act Office could just become another layer of underperforming bureaucracy.

BOP Office of Inspector General, Evaluation of the Federal Bureau of Prisons’ Use of First Step Act Funding and Implementation of First Step Act Programs at Its Institutions (Report 26-057, May 2026)

Forbes, Bureau of Prisons Creates Dedicated First Step Act Office (Sept 24, 2026)

Spectrum News, Bureau of Prisons launches First Step Act office (Sept 24, 2026)

BOP, Introducing the Division of Compliance and Oversight (Sept 22, 2026)

~ Thomas L. Root

Taking the ‘Early’ Out of ‘Early Termination’ – Update for September 29, 2026

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THE OFFICIALS RESET THE GAME CLOCK

Ever think you’ve finally gotten to a win, only for some mook to put a second back on the clock? 

It happened to Western Michigan a few weeks ago in Ann Arbor, letting the Wolverines steal an improbable victory from a team that was supposed to be a cupcake for the mighty U-M football machine.

It doesn’t just happen in the NCAA (which, by the way, admitted its error and said it wouldn’t happen again). It happened last week to Jose Santana-Robles. After Jose did his five years on a drug beef, he began 60 months of supervised release. Jose had a little trouble adjusting to supervised release: the 3rd Circuit said he “accumulated violations, including for testing positive for marijuana and leaving the jurisdiction without permission. In February 2024, the District Court issued a warrant for arrest for his violations. Over a year later, he was arrested in Oregon and was transported to Pennsylvania.”

Jose’s supervised release was revoked, and he was sent back to the BOP for 4 months, to be followed by another 24 months of supervised release. When he finished his 4 months in custody, he moved for early termination of the remainder of his supervised release term. His district judge declined.

Jose appealed. Last week, the 3rd Circuit held that he was not even eligible to ask for early termination, leaving alone the question of whether his judge was right to deny it.

Under 18 USC § 3583(e), defendants are eligible to ask the court to terminate the remainder of their term after serving one year of supervised release. The 3rd Circuit held, however, that Jose’s revocation reset the one-year clock. “The text, purpose, and history [of § 3583] all support the common sense reading that the one-year clock starts from the beginning of the current term of supervised release that a defendant may seek to terminate. Because Appellant filed his motion less than two months into his term of supervised release, his request was foreclosed by § 3583(e)(1) and the District Court did not have the authority to grant his request.”

Oh, Michigan fans… that final-second Iowa win last Saturday? Karma is a harsh mistress.

United States v. Santana-Robles, Case No. 26-1011, 2026 U.S.App.LEXIS 29233 (3d Cir., Sept 23, 2026)

~ Thomas L. Root

Justices Are Back From Summer Fun – Update for September 28, 2026

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TODAY IS THE MONDAY BEFORE THE MONDAY

Everyone knows that the Supreme Court begins its work year on the first Monday in October. But a convincing case can be made that it begins a week before.

Today, the last Monday in September, the Court will hold its annual “long conference,” the first meeting of the nine Justices to consider the pile of petitions seeking review that have accumulated over the three-month summer recess.

Statistically, the likelihood that such a petition for certiorari will be granted is slight, about 1.2 pct for those filed by lawyers and 0.8 pct for those filed pro se.  The odds are usually worse for those considered in the long conference. The Court itself admitted two years ago that 97 pct of the petitions are rejected “without joint discussion by the Justices.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, looks forward to the coming term even as he’s disappointed with the Court’s output. He notes that “11 of the 25 cases already granted for review are, by my calculation, criminal law and related… They won’t all be headline-grabbers, but 40% of the court’s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28 ‘long conference…’ [T]he Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report… in 2012 Chief Justice John Roberts said that the court could hear ‘100 cases without any stress or strain, but the cases just aren’t there,’ and he ‘emphasized that circuit splits are far and away the most important consideration.’ The capacity of the justices to handle more cases is not an issue – more grants of review to provide national uniformity in criminal cases ought to be a priority.”

Sentencing Law and Policy, Gearing up for another (notable?) SCOTUS term for sentencing fans (September 15, 2026)

Pacific Legal Foundation, A Supreme Court preview: PLF cases at the long conference (September 25, 2026)

~ Thomas L. Root

Creativity in Compassionate Release Argument Gets No Love – Update for September 25, 2026

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CLOSE BUT NO CIGAR IN COMPASSIONATE RELEASE APPEAL

Since last spring’s disappointing Supreme Court decision in Rutherford v. United States, a case that held courts cannot consider non-retroactive statutory changes as extraordinary and compelling reasons for 18 USC § 3582(c)(1)(A)(i) compassionate releases, it looked like sentence disparity as a basis for a compassionate release was dead.  And it probably is.

Still, one has to admire James Torentino, whose novel argument that he should get a compassionate release because his sentence was disparately long due to the combined effect of multiple nonretroactive changes to the Sentencing Guidelines found not audience with the 9th Circuit last week.

Jim contended that he is serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.

The district court rejected his compassionate release motion because the Guidelines policy statement, USSG § 1B1.13, precludes courts from considering a nonretroactive change to the Guidelines as an extraordinary and compelling reason warranting a sentence reduction. The district judge held that § 1B1.13 implements 28 USC § 994(t), which directs the U.S. Sentencing Commission to describe “what should be considered extraordinary and compelling reasons for sentence reduction.”

However, Jim challenged the policy statement’s validity. His rather slick argument was that because § 994(t) (the statutory source of the Commission’s authority) expressly directs the Commission to describe only what should be considered extraordinary and compelling reasons, the Commission lacks statutory authority to specify what should not be considered extraordinary and compelling reasons.

Last week, the 9th Circuit employed its statutory construction toolbox to reject Jim’s legal theory. It held that “Congress itself – in § 994(t) – partly defined ‘extraordinary and compelling reasons’ by… specif[ying] that rehabilitation alone cannot be considered an extraordinary and compelling reason. Congress’s use of an express exclusion in the authorizing statute suggests that the Commission may also define “extraordinary and compelling” by exclusion. Indeed, it is common to define or clarify a term by specifying what it is not… If Congress preferred that the Commission avoid defining “extraordinary and compelling” by exclusion, it could have said so but did not.

Jim’s last-second “Hail Mary” was to argue that, even if the policy statement validly precluded consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. The Circuit rejected this argument, too, holding that if a single effect is nothing, then a pile of the nothings was still nothing:

If the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear. We therefore conclude that the Policy Statement prohibits consideration of the combined effect of multiple nonretroactive amendments to the Guidelines.

United States v. Troiano, Case No. 24-6621, 2026 U.S.App. LEXIS 28077 (9th Cir. September 14, 2026)

~ Thomas L. Root

Congress Deems You To Be ‘Dangerous’ – Update for September 24, 2026

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MEANWHILE, UP NORTH, MERE DRUG POSSESSION IS DANGEROUS

The 1st Circuit last week ruled that a Maine resident whose predicate felony relied on by the sentencing court was for mere possession of methamphetamine could be convicted of being an 18 USC § 922(g)(1) felon-in-possession consistent with the 2ndAmendment.

Jason argued that a conviction for mere possession did not let a court conclude that he posed “a special danger of misuse,” as described by the Supreme Court in last spring’s United States v. Hemani decision. But the Circuit ruled that Hemani focused on a “danger of misuse” of the gun, not just a danger of physical violence.

[T]he modern version of 922(g)(1) does not just serve the purpose of ‘crime control,’ as Levasseur contends… [Rather, i]n enacting predecessor statutes to 922(g)(1), Congress ‘determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them… Indeed, the Supreme Court has described felon-in-possession bans as reflecting ‘Congress’ judgment that a convicted felon… is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness…

This analysis underscores the importance of the interstate commerce issue raised in Squire. Using an “interstate commerce” hook for a statute, the purpose of which has nothing to do with regulating commerce but everything to do with crime control – a role that the Constitution assigns to the states – means that there is no practical limit to what Uncle Sam may want to criminalize.

And this decision takes that limitless power even further.  Now, § 922(g)(1) has nothing to do with crime control but everything to do with Congress’s desire to regulate people who are deemed “dangerous.” Find the limiting principle is that legislative goal, if you can…

United States v. Levasseur, Case No. 24-1687, 2026 U.S.App. LEXIS 28377 (1st Cir. September 16, 2026)

~ Thomas L. Root

BOP Trumpets New Rule It Was Forced To Adopt – Update for September 22, 2026

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MAKING A VIRTUE OUT OF FSA NECESSITY

The Bureau of Prisons has announced a change in 28 CFR § 523.42(a), effective September 30, 2026. The change makes an inmate eligible to earn First Step Act credits “after the inmate’s term of imprisonment commences.”  Currently, the rule says that eligibility begins on “the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served…”

This should be a small but welcome deal for FSA-eligible inmates, who on average spend 60 days from their sentencing date (when their BOP imprisonment begins) to the date they arrive at their prison. That 60 days will net them an additional 20 days of FSA credit.

Writing in Forbes, Walter Pavlo (whose work I admire) was effusive in his praise for the “significant” progress made in FSA implementation under BOP Director William Marshall III.

Marshall deserves kudos for advancing FSA implementation more than his predecessors, but praising him for this rule change makes a virtue of necessity.  

Pavlo notes in passing that “[t]he change followed a series of court decisions finding that the BOP’s previous regulation conflicted with the First Step Act. The BOP specifically cited decisions including Miles v. Bowers and Sharma v. Peters in explaining why it was removing the restriction….”

No fooling. It was almost two years ago that Sharma v. Peters depantsed the BOP’s § 523.41, which denied FSA credit to inmates while out on writ or in administrative detention (the SHU)  but not in disciplinary segregation. Last April, both the 1st Circuit and 4thCircuit ruled that the BOP’s rule denying FSA credits until arrival at the designated prison and completion of an initial review was contrary to the FSA. The Miles v. Bowers court ruled:

[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.

Pavlo argues that “[t]he BOP did something unusual and useful in announcing this change. It calculated the expected financial impact. The agency estimates that expanding the period during which prisoners can earn Time Credits will save approximately $54.1 million annually.”

In fact, the BOP – which only a few months ago was resisting cleaning up its rule – did what it had to do. It deserves no pats on the head for fighting the clear disconnect between its rule and the law for two years before finally surrendering to common sense and the courts.

Forbes, Bureau of Prisons Upgrades First Step Act With More Credits (Sept 18, 2026)

Federal Register, First Step Time Credits – Revision, 91 FR 55740 (Aug 31, 2026)

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

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

~ Thomas L. Root