LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.

Edited by Thomas L Root, MA JD

Vol 12, No 22

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Compassionate Release Hit by SCOTUS, but the Sky’s Not Falling Yet
He Knows Everything, but Everything He Knows is Wrong
Notes from All Over

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

The Supreme Court last week confirmed what had already been restrictions on sentence reduction motions under 18 USC 3582(c)(1)(A), the so-called compassionate release motion, in most circuits.

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

To win “compassionate release (CR),” a prisoner must show the existence of extraordinary and compelling reasons for grant. The Court must find that the CR “is consistent with applicable policy statements issued by the Sentencing Commission” and must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.” In Fiscal Year 2025, 2,795 CR motions were filed nationwide, with 14 pct granted.

In last week’s double-barreled blast at CR, the Supremes ruled in Rutherford v US that an inmate serving a long sentence that he would not get today because of a non-retroactive change in the law. The usual example is someone with 3 18 USC 924(c) convictions from before 2018 because he carried a gun while selling marijuana every day for 3 successive days. Before the First Step Act passed, he would have gotten 25 years consecutive time for the second and third days’ gun, for a combined 18 USC 924(c) sentence of 55 years. After FSA, he would have gotten only 15 years at minimum.

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

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

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

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

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

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

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

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

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

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

Rutherford v US, Case No 24-820, 2026 USLEXIS 2294 (May 28, 2026)

Fernandez v US, Case No 24-556, 2026 USLEXIS 2295 (May 28, 2026)

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

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

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

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

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

Oh, the humanity!

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

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

Early last month, the BOP issued a change to its 8-year-old Program Statement on awarding early release credit for successful completion of the Residential Drug Abuse Program. The Program Statement highlights it changes in yellow for easy reading and simple comprehension. Unless, of course, you’re Kyle.

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

That’s it. There’s no “new” 10-year look-back. There’s no change in 18 USC 3621(e) because, as anyone who didn’t snooze through high school government class knows, the BOP has no ability to change 3621(e), which is a federal statute. Only Congress can do that.

There’s no applying the Categorization of Offenses list to any prior offense at all. The few prior offenses that are disqualifying had to occur in the past 10 years, and they are set out like they always have been in 28 CFR 550.55, such as homicide, rape, robbery… that kind of thing.

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

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

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

P.S. 5221.02 CN-3, Early Release Procedures Under 18 U.S.C. § 3621(e) (May 7, 2026)
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NOTES FROM ALL OVER

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

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

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

The Reload, Where is DOJ’s Gun Rights Restoration Plan? (May 29, 2026)
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Who Can Trust DOJ? A jaw-dropping mea culpa played out in federal district court in Chicago last week, as the US Attorney himself appeared before US District Judge April Perry to apologize for what the NY Times called a “remarkable list of grand jury errors in a case that was dismissed against four Democratic activists about to face trial for impeding the police during a protest last fall at a suburban immigration detention facility.”

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

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

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

NY Times, As Trump Politicizes Justice Dept., Prosecutors Struggle With Grand Juries (May 26)
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Free the Weed: In a May 22 letter to President Donald Trump and Pardon Czar Alice Marie Johnson, 28 Democratic senators and representatives, along with Bernie Sanders (I-VT), asked the administration to pardon everyone in federal prison for non-violent marijuana crimes.

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

Letter to Donald Trump (May 22, 2026)
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