LISA Newsletter for July 13, 2026 – Hunting for ‘Miscarriages of Justice’ in Hunter
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 27
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SCOTUS Waiver Case Ignites Argument Over What A ‘Miscarriage Of Justice’ Is
Compassionate Release Is Neither Easy Nor Especially Fair
BOP Announces Bold Push Into 21st Century
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SCOTUS WAIVER CASE IGNITES ARGUMENT OVER WHAT A ‘MISCARRIAGE OF JUSTICE’ IS
A Supreme Court decision from last term, Hunter v United States, may seem to be a yawner to many federal prisoners. But some legal commentators are suggesting that the decision, while “murky,” may be “the most important criminal case of the term.“
The importance of Hunter, which held that appellate and collateral attack waivers in plea agreements may not be enforced by the government where to do so would lead to a miscarriage of justice, has already led to a number of Supreme Court GVRs. (A ‘GVR” is a single SCOTUS order that grants certiorari (the ‘G’), vacates the lower court decision (the ‘V’) and remands the case (the ‘R’) for consideration in light of a new Supreme Court decision that addresses the same issue that the GVR case raises).
An appellate waiver, in which a defendant waives his or her rights to appeal or file a collateral attack except in very limited cases, is a feature of virtually all of the 94 pct or so of federal criminal cases resolved each year by plea bargain. Some are bare bones, relating only to direct appeal. Others are breathtakingly expansive, waiving rights to direct appeal, habeas corpus under 28 USC 2241 and 2255, compassionate release motions, and even retroactive Guidelines changes.
Last month’s GVR list of 17 cases – an unusually large number – suggests that a lot of appellate cases will be exploring the limits of what constitutes a “miscarriage of justice” sufficient to set aside a plea agreement appellate waiver.
Last week, Ohio State University law professor Doug Berman listed “a notable group of early test cases for the ‘miscarriage of justice’ limit on the enforceability of sentencing appeal waivers” provided to him by a law professor reader of his blog:
• A claim that the sentencing judge imposed sex offender registration for a non-registrable offense;
• A claim that a restitution order was not supported by sufficient evidence;
• A claim that the sentencing judge failed to give the defendant much less credit for substantial assistance to law enforcement than the government recommended;
• A claim that defense counsel was ineffective in stipulating that a prior state conviction was a serious violent felony (increasing the federal sentence exposure) even though the ineffectiveness did not affect plea negotiations;
• A claim that the defendant’s guilty plea to an offense (such as possessing a firearm as a drug user) after SCOTUS decisions (such as Hemani) undercut the constitutionality of the crime;
• A claim that the sentencing judge erred in applying a Guidelines career offender enhancement to the defendant, which increased his guideline range by 60 pct or more; and
• A claim that the sentencing judge imposed a substance abuse testing special condition on a defendant’s supervised release which delegated the frequency of testing to the Probation Office.
The Supreme Court did little more than say that a “miscarriage of justice” was something so outside the bounds of conscience as to call the entire “judicial system into disrepute.” A former Assistant US Attorney complained that “I was an appellate lawyer in a big USAO for about 20 years, and I can tell you how many sentences fit that description — pretty darn close to zero.”
But another commentator observed that Hunter seemed to confirm validity of appeal waivers while noting problems with the “contract analogy” – that waivers were just contracts between parties to be judged by contract law.
Watch for a lot of case-specific litigation over whether Hunter will let a defendant walk away from an appellate waiver.
Sentencing Law and Policy, Early efforts in the hunt to understand Hunter’s new limits on the enforceability of sentencing appeal waivers (July 8, 2026)
Supreme Court, Order List (June 29, 2026)
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COMPASSIONATE RELEASE IS NEITHER EASY NOR ESPECIALLY FAIR
One study and two decisions last week illustrate the depressed state of compassionate release motions filed under 18 USC 3582(c)(1)(A).
It is almost an article of faith among federal prisoners that among the first motions filed with a district court is a motion for the court to appoint a lawyer to file and argue whatever the movant wants to file. The implicit assumption is that the federal courts have an unlimited number of lawyers on their practitioners’ rolls awaiting such appointments and an unlimited budget to pay them with.
Neither is the case.
In a study published last week in the Ohio State Law Journal, Georgetown University law professor Amanda Rogers reported the jumbled state of affairs across the 94 federal districts regarding the appointment of lawyers to assist inmates with compassionate release motions. While there is neither a constitutional nor a statutory right to counsel in a post-conviction motion, the short answer is that a few do, a few don’t, and most of the districts are all over the map.
Seventeen districts (18 pct) appointed the Federal Public Defender office to represent previously represented defendants or those now indigent who may qualify for FSA relief or for compassionate release. A few courts limited representation to those who were previously entitled to appointed counsel or who are now unable to hire an attorney, when their potential CR claims are based on medical condition or age.
Thirty-four courts (36 pct) streamlined disclosure by ordering the United States Probation Office or clerk to disclose the presentence report, BOP SENTRY reports, and other relevant records to the FPD or other counsel “for the purpose of determining eligibility for compassionate release.”
Forty-eight district courts (slightly more than half) have failed to issue any orders to guide appointment of counsel for compassionate release motions, although most of these recognize their discretion to appoint. Prof Rogers wrote that many of the courts “failed to issue similar orders for compassionate release motions… Judges vary greatly across district courts regarding (1) whether their discretion to appoint comes from precedent or statute and (2) what test to apply in appointing counsel in post-conviction motions.”
Most of those courts applied an “interests-of-justice test,” appointing counsel only when they concluded it was within the “interests of justice” to do so. The term is not defined by 18 USC 3006A (the statute relating to appointment of counsel in criminal cases, and its meaning is thus every bit as squishy as you might think.
A few district courts issued orders that stopped appointment of counsel in compassionate release cases altogether. A few others have not outright prohibited it but have issued orders dissuading judges from appointing counsel in such cases.
Anyone wanting appointed counsel for a compassionate release motion needs a strong factual basis for the motion, the right district court, and plenty of luck.
Luck different from what Monty Hall experienced. From a rough childhood, Monty became an accomplished gang member, doing prior bids for drugs and weapons possession. In one shooting, Monty or others he was with killed the girlfriend of a rival gang member. Finally, he and some others murdered a soldier after a nightclub altercation.
The Feds swept up the gang, and Monty went down hard. He pled to several racketeering activities, including drug trafficking, robbery, murder, bribery, and extortion, and to 18 USC 924(j) – use of a gun in a crime where murder resulted. At age 20, Monty got a 30-year federal sentence.
In 2024, Monty filed a motion for compassionate release, arguing that his health issues, prison conditions, sentencing disparities, his youth at the time of the crime, and his post-offense rehabilitation supported resentencing him to time served. The district court reduced his sentence by eight years because Monty had engaged in substantial rehabilitative efforts: he had become a suicide watch companion, studied for a degree in business administration, learned new skills, renounced his gang, and began practicing a religion. Also, the court emphasized that Monty’s youth played a role in the crimes: he was just “18 (almost 19) at the time” of the murders.
A few weeks ago, the 6th Circuit reversed the 8-year reduction, holding that district courts can’t consider “youth” or “sentencing disparities” because “facts that existed at sentencing cannot later be construed as ‘extraordinary and compelling reasons’ to reduce a final sentence.” And district courts can’t consider a “change in the law” because of the non-retroactivity doctrine. That left only rehabilitation, which failed because 28 USC 994(t) holds that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.
Meanwhile, last week, the 8th Circuit denied compassionate release to Kenny Loggins, who robbed a series of banks 20 years or so ago and got consecutive 924(c) sentences for using a gun. His 504 months would have been just 240 months if he had been sentenced after the First Step Act passed, and he sought compassionate release due to the gross disparity in his sentence.
If you think the Supreme Court’s Rutherford v. US decision last May was fatal to Kenny’s motion, you’d be right. And the 8th Circuit agreed, ruling that “[c]onsistent with the Supreme Court’s binding decision in Rutherford, we hold that the First Step Act’s nonretroactive statutory changes to § 924(c), like other nonretroactive legal changes, cannot, whether offered alone or in combination with other insufficient factual considerations, constitute “extraordinary and compelling” reasons for a sentence reduction under 18 U.S.C. 3582(c)(1)(A).”
Rogers, Amanda, Importance of Counsel in Compassionate Release Cases, 86 Ohio St. Law Journal 443 (July 9, 2026)
US v Hall, No 24-6094, 2026 USAppLEXIS 18561 (6th Cir. June 25, 2026)
US v Loggins, No 24-1488, 24-1569, 2026 USAppLEXIS 20175 (8th Cir. July 10, 2026)
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BOP ANNOUNCES BOLD PUSH INTO 21ST CENTURY
Sixteen years after Apple introduced the iPad, the Federal Bureau of Prisons has signed a contract with Securus Technologies to provide all BOP inmates with “corrections-grade tablets.”
Securus, which last year won a contract to replace all of the inmate tablets in the California prison system, is the vendor. The company said in a press release that it “equips over 1,800 corrections agencies with 80-plus high-grade technology solutions to enhance public safety and optimize facility operations. Their offerings include secure communication, advanced monitoring, and the only corrections-grade Wi-Fi-enabled tablets…”
The tablets are to give prisoners access to a range of tools and resources that support reentry and communications with family. The devices will provide secure messaging and video services, and educational and rehabilitative programming.
The platform will also modernize many administrative and operational processes, “such as commissary ordering, request forms, program registrations and other routine workflows,” according to the BOP.
The rollout of the new tablet services will occur in phases across BOP institutions, the BOP said, with no schedule announced. The agency provided a similar phased rollout for the introduction of email, the electronic law library, and individual mp3 music players. The use of a vendor already involved in prison tablet placement and management suggests the rollout is for real.
To be sure, the BOP will benefit from the tablets as much as inmates will, with educational programming that can expand to reach all the people who need it, programs not limited by staff shortages, and paperwork reduction. According to Securus, the introduction of tablets in state facilities reduces inmate rule infractions by over 20 pct and makes use of contraband cellphones less attractive.
Correctional News, Federal Bureau of Prisons Awards Tablet Contract as Part of Broader Modernization Push (July 10)
Forbes, Federal Bureau Of Prisons Rolling Out E-Tablets (July 9)
BOP, Federal Bureau of Prisons Awards Transformational Inmate Tablet Contract to Modernize Communication, Education and Rehabilitation Services (July 8)
Business Wire, Federal Bureau of Prisons Selects Securus Technologies to Deliver Communications and Digital Infrastructure Nationwide (July 10)
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