Fill Out This Form (In Triplicate) – Update for October 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.

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

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

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

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

5th Circuit En Banc Asks Whether  ‘Commerce Clause’ Attack Should Doom Felon-in-Possession  – Update for September 21, 2026  

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FOCUS SHARPENS ON CONSEQUENTIAL 5TH CIRCUIT FELON-IN-POSSESSION EN BANC

You may remember the newsletter’s reporting on a 5th Circuit en banc proceeding over whether 18 USC § 922(g)(1) – the felon-in-possession statute – is unconstitutional, not under the 2nd Amendment but rather under the Commerce Clause.

All of the significant felon-in-possession litigation in the past few years has focused on whether the statute violates the 2nd Amendment as applied to nonviolent felons. This case, United States v. Squire, instead asks whether prohibiting people with prior felonies from possessing guns that traveled in interstate commerce violates the Commerce Clause.

In June, Curtis Squire, a convicted drug dealer, lost his argument that § 922(g)(1) was unconstitutional as applied to his situation, one in which a gun was found in his house. He argued that keeping a gun at home for defense was a right enshrined in American history, even for people who otherwise were prohibited by colonial law from carrying a firearm. For good measure, he also claimed the statute violated the 2nd Amendment on its face and was unconstitutional under the Commerce Clause.

The Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” Congress has often used the Commerce Clause to justify exercising power over the activities of states and their citizens, leading to significant controversy regarding the balance of power between the federal government and the states.

Section 922(g) only applies to guns and ammo that have traveled in interstate commerce, because without an interstate commerce nexus, federal law cannot limit the mere possession of a gun. That’s why § 922(g)(1) can’t prevent a convicted felon from building a gun at home. It’s why a § 922(g) prosecution always features testimony from some ATF agent that the gun at issue crossed state lines before falling into the defendant’s hands, and thus that the defendant’s firearm possession is somehow “in or affecting commerce,” as the statute puts it.

In Curtis’s case, he argued that while the gun – which was manufactured in Massachusetts – once traveled in interstate commerce, his current possession of it in his bedroom was too insignificant to “substantially affect” interstate commerce. In United States v. Lopez some 30 years ago, the Supreme Court struck down the Gun-Free School Zones Act of 1990 (which made possession of a gun in a school zone a federal crime). Lopez held that Congress exceeded its constitutional authority under the Commerce Clause because possessing a gun in a local school zone is not an economic activity that substantially affects interstate commerce.

th Circuit held that Curtis’s Commerce Clause challenge was foreclosed by its decision in United States v, Diaz.

However, the 5th Circuit granted en banc review. Rehearing en banc has the case reheard by all 17 judges in active service on the 5th Circuit and as many of the seven judges on senior status as want to join in. Contrary to inmate lore, en banc review is rarely granted, generally about two-tenths of 1% a year of all cases. En banc review is used to reverse prior circuit precedent or where the circuit’s position conflicts with other circuits.

In Curtis’s case, enough judges found the question of whether § 922(g)(1) exceeds Congress’s authority under the Commerce Clause to hear the case, one of only 14 decisions the 5th Circuit will take up en banc this year.

Last week, the Firearms Policy Coalition filed an amicus brief in the case arguing that the limitation in § 922(g) that the gun have traveled in interstate commerce was nothing more than a “jurisdictional hook” that was invalid given the historically narrow use of the term “commerce” when the Constitution was written and the admitted purposes of § 922(g), which was to control violent crime.

Controlling violent crime, the FPC argued, is an activity reserved to the states: the stated purpose of § 922(g) – where 39 states already have laws banning felons from possessing guns (although usually limited by the type of prior crime and for a stated period of time.

As is typically the case, the only evidence that Curtis Squire possessed a gun “in or affecting commerce” was that the weapon had at some point in its history crossed state lines. As the FPC notes, establishing that element is rarely difficult: “The government has proffered testimony that 95% of all guns in the United States have crossed state lines.”

“In other words,” Reason reported last week, “the constitutional rationale for making a federal case out of the pistol found in Squire’s living room is barely more demanding than requiring proof that the gun was made of metal. Can that possibly suffice to treat § 922(g)(1) as an exercise of the power to regulate interstate commerce?”

The FPC thinks not. ‘Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon,’ it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.”

Last month, a woman in Philadelphia threw an ice cream cone at her husband (he probably had it coming).  The ice cream was made in Hershey, Pennsylvania, and the cone was baked in Hermitage, Pennsylvania. But the paper wrapper on the cone was printed in Iowa. Applying Congress’s Commerce Clause theory, the woman’s possession of the ice cream cone was “in or affecting commerce.”

The Commerce Clause argument has great import for § 922(g) defendants. As well, it may affect other statutes that depend on interstate commerce as a jurisdictional hook, from arson to child porn to Travel Act to murder-for-hire.

Whatever the outcome of the en banc proceeding, it will undoubtedly end up at the Supreme Court.

United States v. Squire, Order (5th Cir. July 20, 2026)

United States v. Squire, 177 F4th 614 (5th Cir. 2026)

Firearms Policy Coalition, Amicus Brief in Case No. 25-30324 (September 10, 2026)

Reason, How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws (September 11, 2026)

~ Thomas L. Root

Calling Out Hunter – Update for September 17, 2026

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HUNTER HAS NO CLOTHES

US District Judge Joseph Goodwin, who sits on the court in the Southern District of West Virginia,  wrote a thoughtful Substack last week arguing that the Supreme Court’s Hunter v. United States decision last June, like Hans Christian Andersen’s Emperor, has no clothes.

Hunter held that a defendant’s waiver of appellate rights is enforceable except where to enforce it would constitute a miscarriage of justice.  The Court left the question of what is serious enough to constitute a miscarriage of justice for another day.

Judge Goodwin argues that plea deals that waive appellate and 2255 rights are abominations (in the religious sense, here being something utterly repulsive to justice. He recounted how once,

talking off the record about one of these waivers, I asked what kept me from coming into the courtroom, announcing the sentence, and telling the defendant, ‘I’ll get you a good seat on the bus.’ I was being flip. I knew the answer. The law kept me from doing it. But the question is not as flippant as it sounds, because Hunter has to answer it. A waiver that reaches every error reaches that one too. So somewhere between a Guidelines miscalculation and the seat on the bus, the waiver stops working, and the Court has told us only that the first is too small to count. It has not told us what makes the second big enough.

Judge Goodwin points out that statutes, rules of criminal procedure and Guidelines all still apply at sentencing. The defendant still has rights, and the judge still has obligations imposed by law.  The waiver means that there is just no way to enforce those rights and duties.  “That is what has always seemed so odd about the appellate waiver,” the Judge wrote. “The judge remains bound by the law, while the parties agree in advance that some violations of that law won’t be reviewed.

Judge Goodwin states the obvious: the appeal statute, 18 USC § 3742, is not just some private benefit Congress granted a defendant, only to be traded away to the prosecutor. “Appellate review was built into the sentencing system,” Judge Goodwin writes. “It corrects errors, develops sentencing law and, importantly, gives district judges a reason to be careful about getting the law right. I do not see where the parties get the authority to bargain that away.”

The essay is thoughtful reading for anyone concerned that the intersection of justice and efficiency, efficiency may have t-boned justice.

Sentencing Matters Substack, How Lawless Is Too Lawless? (September 8, 2026)

Hunter v. United States, — U.S. —, 146 S. Ct. 1702, 225 L. Ed. 2d 272 (2026)

~ Thomas L. Root

Compassionate Release Data Published – Same ‘Ol Same ‘Ol – Update for September 15, 2026

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NUMBERS TELL TALE OF TWO SENTENCING REDUCTION MOTIONS

The U.S. Sentencing Commission released data last week on both its criminal history reduction decision and the 18 USC § 3582(c)(1)(A) compassionate release sentence reduction motions.

Both datasets are current through June 30, 2026.

The number of prisoners filing compassionate release motions every month, let alone getting grants. continues to fall and is slight compared to the overall federal prison population. For the last quarter, 497 motions were filed, only 70% of the number filed during the same time last year, and only about half the number filed in April through June 2023.

When it comes to the number granted, the news is both good and bad. The data show that about 13% were granted last quarter, a pretty slight number. The grant rate, however, is pretty much unchanged from 2025 (13%, 2024 (14%) and 2023 (12%).

The numbers do not account for the negative effect of the Supreme Court’s Rutherford and Fernandez decisions (May 2026), which denied prisoners filing compassionate release motions the right to rely on disparate sentences resulting from intervening law changes. The data suggest that the Rutherford/Fernandez effect could reduce grants to around 10%.

Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman bemoaned the very limited effect compassionate release has on the overall prison population: “With a federal prison population over 150,000, this means only slightly more than an average of 1 out of every 10,000 federal prisoners are securing a § 3582(c)(1)(A)(i) reduction each month. That’s not a lot of compassion. And, with roughly 4,500 persons being sentenced to federal prison each month, roughly 250 new persons are being sent to federal prison each month for every single federal prisoner securing a sentence reduction.”

In February 2024, the Commission made its change in the criminal history guidelines retroactive. The data show that more than 10,000 federal prisoners have reduced their sentences by about 12 months on average. About 6,000 of those changes were based on the status point amendment (eliminating extra criminal history points if the defendant was on parole, probation or supervised release), and around 4,000 were based on the zero-point offender amendment. Berman said, “Those 10,000 (modest) sentence reductions based on retroactive criminal history amendments granted since February 2024 amount to roughly 10 times as many sentence reductions as have been granted based on compassionate release motion (though the average compassionate release reduction is likely greater).”

U.S. Sentencing Commission, Compassionate Release Data Report (through June 30, 2026)

U.S. Sentencing Commission, Retroactivity Analyses And Data Reports (through June 30, 2026)

~ Thomas L. Root

Disabled Prisoner Allowed to Use ADA To Pursue Prison Indifference to Medical Needs – Update for September 14, 2026

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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