LISA Newsletter for October 19, 2026 – DOJ Finds FCI Berlin Short on Staff, Healthcare, and Security
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 40
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DOJ Finds Medical, Security Problems at FCI Berlin
3RD Circuit Refines Rights for Felons-In-Possession
Last Week At The Supreme Court
Union Roller Coaster
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DOJ FINDS MEDICAL, SECURITY PROBLEMS AT FCI BERLIN
Hard to believe that Federal Bureau of Prisons inmates experience significant delays in routine and urgent medical care, but that’s the case at FCI Berlin, according to the Dept of Justice Office of the Inspector General.
In a report issued last week, the OIG found severe operational challenges at Berlin in New Hampshire. Despite operating at 52 pct of its stated capacity, the facility suffers from critical staffing shortages among correctional officers and medical personnel. These shortages have caused significant delays in routine and urgent medical care for prisoners, including waits of nearly a year for specific consultations.
The report, based on an unannounced January 2026 inspection, said other issues included security violations and deviations from BOP policy for tracking sexual misconduct complaints.
Vacancies are particularly acute among correctional staff and in Health and Psychology Services departments, the Report found. As a result, staff “struggle[] to address BOP inmate requests for routine medical care inside the institution” and to facilitate inmates in seeing medical providers outside of the prison.
Additionally, housing ICE detainees has placed further demands on the understaffed institution, while deteriorating infrastructure and broken security equipment remain unaddressed. Consequently, the OIG said, hundreds of prisoners face long waiting lists for rehabilitation programs and vocational training intended to reduce recidivism.
The findings are hardly surprising. Writing in Forbes, Walter Pavlo said the inspection “offers a familiar picture of the challenges facing the… BOP. Staffing shortages, delayed medical care, deteriorating infrastructure and limited access to rehabilitation programs continue to affect the agency responsible for incarcerating more than 150,000 people.”
In response to the Report, New Hampshire Sens Jeanne Shaheen and Maggie Hassan and Reps Chris Pappas and Maggie Goodlander wrote to BOP Director William K. Marshall III that “[]the challenges outlined in the report must be taken seriously, especially a lack of vigilance surrounding sexual misconduct complaints and medical care deficiencies… [W]e identified in the report, we remain alarmed about the ongoing safety issues at FCI Berlin, particularly given that staffing at the facility has only further dropped since this inspection was completed.”
Dept of Justice Office of Inspector General, Inspection of the Federal Bureau of Prisons Federal Correctional Institution at Berlin, New Hampshire (Report 26-002, October 16, 2026)
Union Leader, Federal watchdog finds staffing gaps, care delays at FCI Berlin prison (October 16, 2026)
Forbes, Another Prison Inspection Critical of Bureau of Prisons (October 16, 2026)
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3RD CIRCUIT REFINES RIGHTS FOR FELONS-IN-POSSESSION
The 3rd Circuit broke new ground on felon-in-possession reform with its Range v Atty General decision two years ago. Last week, the appellate court handed down two decisions that cemented the developing standard that it is only dangerousness, not the existence of a prior felony, that permits disarming someone under 18 USC 922(g)(1).
The Circuit upheld the 922(g)(1) against a man with a conviction stemming from a 24-year-old carjacking but ruled that the ban could not be applied to another man based on prior drunk-driving convictions.
James Bost pled guilty to terroristic threats, criminal conspiracy, false imprisonment and simple assault in Pennsylvania state court following a 2002 carjacking. He was later indicted for being a felon in possession after police caught him with a gun. James argued that 922(g)(1) violated the 2nd Amendment as applied to his case.
The 3rd said that people like James who were convicted of crimes demonstrating “a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality.”
In a different case, the Circuit held that applying 922(g)(1) to Edward Williams violated the 2nd Amendment. Ed had prior convictions for drunk driving in the early 2000s. One of those convictions carried a maximum sentence of 5 years, which triggered felon-in-possession (although he only did 90 days in home confinement).
The 3rd ruled that 922(g)(1) cannot be applied to people whose prior felony offenses did not involve violence or threats indicating a risk of misusing firearms consistent with the 2nd Amendment. Nothing in Ed’s prior convictions involved conduct that suggested the public was at risk that Ed was likely to misuse guns.
One troubling argument we’re sure to see again is the Government’s claim that the case should be dismissed because Ed now can file with DOJ to have his rights restored under 18 USC 925(c). The 3rd rejected the notion that Ed had some duty to exhaust his 925(c) administrative remedy first:
The scant chance of an invitation to apply for restoration under § 925(c) does not displace our decisional duty, as Williams presents an actual controversy ripe for adjudication…The United States reasons that since Williams can patiently await discretionary relief from the Justice Department, he faces no present harm (from, say, prosecution under §922(g)(1)). That is a curious conception of our Second Amendment right and one that, in any event, does not fit the facts… Nor will we dismiss Williams’s case under the administrative exhaustion doctrine. Congress has imposed no such requirement and no principles of “sound judicial discretion” support holding a constitutional right in abeyance while the Government gradually comes into compliance.
The idea that because the DOJ may decide you’re entitled to have guns again is a substitute for enforcing your constitutional rights is a dangerous notion. Constitutional rights protect people from Government overreach. Suggesting that the 2nd Amendment depends on Government permission turns a right into a privilege that bureaucrats can grant or revoke at will.
US v Bost, Case No 24-1719, 2026 USAppLEXIS 31138 (3d Cir. October 13, 2026)
Williams v AG, Case No 24-1091, 2026 USAppLEXIS 31148 (3d Cir. October 13, 2026)
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LAST WEEK AT THE SUPREME COURT
Maxwell v Dinis (formerly Maxwell v Thomas): A few months ago, I reported on petitioner William Maxwell’s claim in the Supreme Court that he should be allowed to challenge the BOP’s refusal to place him in prerelease custody by applying his FSA time credits in a petition for habeas corpus under 28 USC 2241. (The 5th Circuit ruled otherwise, holding that habeas “is not the proper vehicle” for such a claim, which instead should be brought in “a civil rights suit under Bivens”).
Since then, the Government has informed SCOTUS that it “agrees with petitioner that that holding is incorrect and has therefore filed a brief supporting vacatur of the judgment below.” Last week, the Court granted the Government’s request for divided argument. This procedure lets the Solicitor General use part of Bill’s argument time to make its own arguments in favor of his position.
The Court has appointed a private attorney to advocate for the side that the Government would usually argue. An argument date has not yet been set.
Maxwell v Dinis, Case No 25-5930 (divided argument granted October 13, 2026)
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Beaird v US: Beaird asks whether a sentencing court must defer to the sentencing Guidelines commentary. The precise issue is whether the enhancement for having a gun with a “large capacity” magazine must follow the Guideline commentary defining such a magazine as being 15 rounds or more.
At oral argument last week, the Supreme Court seemed disinclined to tinker with the 33-year-old Stinson v US holding that Guidelines commentary that “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” This is even though there is a substantial argument that the 2019 Kisor v Wilkie holding – which limited the rule that courts defer to agency interpretation of its own ambiguous regulations – pretty much undid the Stinson holding.
Only Justice Neil Gorsuch seemed open to revisiting Stinson and Kisor in light of the 2025 Loper Bright holding that invalidated the rule that courts had to defer to how agencies interpreted statutes and rules. SCOTUSBlog reported that “none of the other justices seemed particularly interested in adopting such a position.”
This is another case where the Government sided with the petitioner, arguing with Beaird that, principally because the guidelines are now advisory, Stinson-style deference to the commentary should no longer apply. As oral argument suggested, the fact that both parties argue for one position does not guarantee the Supreme Court will roll over and accept it.
SCOTUSBlog, Court unlikely to alter deference to sentencing guidelines commentary (October 16, 2026)
Beaird v US, Case No 25-5343 (argued October 13, 2026)
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Berry v US: As anyone who ever filed a post-conviction 28 USC 2255 motion knows, a district court denial is not appealable unless the appellate court grants a certificate of appealability (COA). A COA should be a low bar – a holding that the issue presented is reasonably debatable by judges or otherwise significant enough to let the movant continue with an appeal.
As the National Association of Criminal Defense Attorneys puts it, a COA is thus “the gateway to both appointment of counsel and an appeal on the merits—and by extension to a meaningful appellate process that can develop well-reasoned circuit splits on difficult legal questions.”
Dave Berry lost his 2255, then filed an application for COA, arguing that the 11th Circuit’s holding that he had to prove his sentence did not rely on the elements clause of 18 USC 924(c) contradicted the holdings of seven other circuits. Thus, he said, the issue was clearly debatable. The 11th disagreed, denying his COA.
Last week, the Supreme Court granted review, focusing on whether a COA should be granted when the issue the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been decided in his favor by another circuit.
It’s been a decade since SCOTUS last decided a COA case (Buck v Davis). A new decision that balances granting COAs of merit with appellate court efficiency is long overdue.
Berry v US, Case No 25-7026 (cert granted October 13, 2026)
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UNION ROLLER COASTER
A few weeks ago, a Connecticut federal court ruled that the BOP’s termination of the union that represented 30,000 of its employees violated due process. It ordered the union reinstated. After being threatened with a contempt of court motion, BOP Director William K. Marshall reinstated the Council of Prison Locals 33 national contract on October 7, only to re-terminate it for a different reason the same day.
Last Friday, the Court voided the re-termination, describing the BOP effort as impermissible “self-help.”
The BOP, citing Biden v Texas, argued that its re-termination was a new agency action, and that the Court had no jurisdiction in the current case to address the new action. The Court rejected that argument, holding that the BOP had to adopt new action and then move to vacate the injunction, which it hadn’t done: “Even when a party disagrees with a court’s imposition of injunctive relief, persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order… It is a matter ‘of respect for the judicial process.”
Memorandum and Order, National Council of Prison Locals v BOP, Case No 3:25-cv-01907 (Oct 16, 2026)
Federal News Network, Judge voids Bureau of Prisons’ attempt to re-terminate union contract (October 16, 2026)
Govt Executive, Judge again orders reinstatement of Bureau of Prisons union contracts, but stops short of contempt (October 16, 2026)
Biden v Texas, 597 US 785 (2022)
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