LISA Newsletter for August 3, 2026 – 5th Circuit Emasculates SCOTUS Hunter Decision
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 30
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We’re Outta Here
The Orangutans Speak?
You Heard It Here Second
Love in the Time of Incarceration
The Heat is On
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WE’RE OUTTA HERE
One week a year, we take a break from the newsletter. That will be next week, while our grandkids wear us out on vacation.
THERE WILL BE NO NEWSLETTER ON AUGUST 10, 2026.
We will be back on August 17th.
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THE ORANGUTANS SPEAK?
A little more than a month ago, the Supreme Court ruled that appeal and collateral attack waivers contained in plea agreements were not rigid but instead should be found to be “unenforceable when it would result in a miscarriage of justice — meaning, when it would leave in place the kind of egregious sentencing error that would bring the judicial system into disrepute.”
The decision, Hunter v US, reversed a 5th Circuit policy that refused to set aside waivers for any error whatsoever. SCOTUS held that the error in the sentencing must be obvious, not one that a judge could reasonably make.” The high court ruled that “[t]he point of the miscarriage-of-justice limit… is to offer a safety valve for extreme cases—a way out of waiver when the system’s integrity is at stake.”
The Court further explained the types of situations that would qualify for the miscarriage-of-justice exception:
A defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. Second, a defendant may appeal a sentence infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). And third, a defendant may appeal if his sentence was imposed without some minimum of civilized procedure, as in, yes, the [trial by] twelve orangutans case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law.
SCOTUS said other more “uncertain or ordinary” errors would not override an appeal waiver. It observed that “mistakes” in “the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors” are “unfortunate but inevitable… and cannot cancel an appeal waiver.”
In the Hunter case, defendant Munson – convicted of a white-collar offense – was ordered to get mental health therapy while on supervised release and to take whatever medication his mental health provider told him to take. Munson was uninterested in downing the drugs some psychiatric doc ordered. He did not appeal his sentence but rather the mental health condition in his supervised release, making a 5th Amendment argument that he couldn’t be told to dope himself up by the court.
The Supreme Court did not settle the matter for Munson. It just told the 5th Circuit that it couldn’t automatically reject the appeal without testing the waiver provision against a miscarriage-of-justice standard.
Last week, the 5th Circuit applied the new standard but unsurprisingly found against Munson once again. The Circuit held that a court order that a defendant be doped up against his will is normal and acceptable, because “there is a nexus between the Medication Condition and the government’s interests in promoting Hunter’s health and reducing his likelihood of re-offending.” Plus, he could always appeal to the District Court if a “dispute” arose about Hunter’s taking particular medication, and “the probation officer can’t resolve the dispute,” and, anyway, the meds will be prescribed by a physician who, the Court assumes, will not “prescribe mental health medication against Hunter’s medical interest.”
Additionally, the Medication Condition “does not rise to the level of ‘egregious” constitutional error that would ‘bring the judicial system into disrepute’ because the same condition has been “broadly imposed” by federal district courts “as a ‘stock’ special condition” of supervised release.” Finally, the condition is nothing like the Hunter opinion’s examples of race-based or gender-based terms that would be “blatantly unconstitutional.” Such errors would “stem from extreme animus or prejudice,” the Circuit said, “which are never appropriate considerations in sentencing. In contrast, there is no suggestion here that the district court imposed the Medication Condition for such invidious purposes.”
No one expected the 5th to roll over after the SCOTUS Hunter opinion slapped down its “waivers-are-bulletproof” policy. However, its quick and dubious defense of a district court’s decision to practice psychiatric medicine on a white-collar defendant – complete with anodyne justifications that could fit any case – suggests that SCOTUS has a lot more oversight to apply to appeals waiver enforcement.
US v Hunter, Case No 24-20211, 2026 USAppLEXIS 22637 (5th Cir. July 29, 2026)
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YOU HEARD IT HERE SECOND
A few weeks ago, I reported that former Dept of Justice Pardon Attorney Liz Oyer – now on her second career as a voice crying in the wilderness against the politicized DOJ – had noted a quiet modification in the Bureau of Prisons Program Statement 5100.08, the Inmate Security Designation and Custody Classification Manual, to give the Attorney General the power to override any designation to send any federal prisoner to any prison in the country. Nothing limits the AG’s discretion, not regulation, not policy, not PS 5100.08.
At the time, Oyer said the policy means that “[i]f you are facing a federal prison sentence, [Acting Attorney General] Todd Blanche has total discretion to decide where you’ll serve your time… Under this rule, Blanche could direct the Bureau of Prisons to put anyone who opposes the Trump Administration in a maximum security prison… If you’re MAGA, you might go to a minimum security camp, or if you’ve got a couple million bucks to spend, you could buy your way into a halfway house or even home detention.”
The policy change has now caught the attention of lawmakers.
The new policy has competing backstories. Last August, Ghislaine Maxwell – serving a sentence for sex offenses related to procuring underage girls for her boyfriend, Jeffrey Epstein – sat for a two-day deposition with then-Assistant AG Blanche in which she allegedly testified that President Trump never engaged in criminal activity with Epstein. The day after her deposition, Ms. Maxwell became the only one out of 20,000 sex offenders in the BOP to be placed in a minimum-security camp.
At his July 15 confirmation hearing, Blanche said Maxwell was moved because of concerns about her physical safety. This was consistent with a BOP public statement of a month before that the decision to transfer Maxwell had been made “independently by BOP,” with “no preference, special treatment, or political influence” playing any role.
The DOJ backstory is that the policy change is intended to “formally memorialize” the AG’s statutory authority over prison placement in light of litigation in the US District Court for DC over redesignating inmates whose death sentences were commuted by President Joe Biden to the harshest prisons despite their security and custody scores.
To University of St Thomas law professor Mark Osler, a clemency expert, the fact that Blanche is using this authority to fulfill a specific Trump directive only adds to the concerns about favoritism. “The transfer of commuted death row prisoners was clearly for political reasons,” he said.
Most critics aren’t buying it. Jamie Raskin (D-MD) contends that, by allowing the attorney general (in unspecified circumstances) to designate an inmate’s place of imprisonment, the policy shifts prison placement authority from the BOP’s traditional role and processes. Raskin told The Bulwark that the real backstory is that the policy change appears to be designed to retroactively “normalize the extraordinary nature of Blanche’s contact with Ghislaine Maxwell” while simultaneously enabling BOP to facilitate similar interactions between future attorneys general and federal prisoners.
Raskin says the policy’s real stakes are a larger institutional usurpation. “Maxwell is just a small window into the kind of total power the president wants to exercise over the penal system,” he said.
In June, Raskin joined Rep Deborah Ross (D-NC) and Rep Ro Khanna (D-CA) in a letter to BOP Director William K. Marshall III arguing that the policy change marked “a significant departure” from its longstanding inmate classification framework. The change “raises troubling questions about the scope of the Attorney General’s asserted authority, the circumstances under which this authority may be exercised, and the potential effects on institutional operations, fairness, transparency, and consistency in federal prisoner placement decisions.”
Raskin told The Bulwark that the BOP “cannot explain how this improves the process other than to give the attorney general, and therefore the president, the power to favor their friends or harm their enemies.”
The Representatives’ letter asks for detailed answers and documents while implicitly acknowledging that it will be ignored. “Our offices requested documentation related to Maxwell’s transfer from BOP, as required under the Epstein Files Transparency Act,” the letter said. “BOP has continued to violate the law by not producing these documents.”
The Bulwark, Todd Blanche’s New Grip on the Federal Prison System (July 30)
Letter from Ross, Rohanna and Raskin to Marshall (June 12, 2026)
Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification Manual (May 6, 2026)
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LOVE IN THE TIME OF INCARCERATION
Federal authorities have charged a BOP officer at FCI Ft Dix with having sex with an inmate.
CO Jordan Pensak had sex with an inmate several times in her office, starting in 2024, and the inmate paid other inmates to act as lookouts during the encounters, the federal complaint alleges. Cellphones belonging to inmates and the officer were said to contain sexually explicit chats. Investigators also obtained a search warrant for an Instagram account the inmate used, which showed him and Pensak discussing their relationship and “professing their love’ over a 5-month period, the complaint says.
Prison officials seized two contraband cell phones used by the inmate last year. Investigators said that they found more than 100 sexually explicit photographs and videos, along with messages discussing their relationship, the complaint alleges.
In one exchange after the BOP began investigating the relationship, Pensak allegedly said inmates had “snitched” and asserted that investigators could not prove anything. She also speculated that the inquiry might end if she quit her job.
Corrections1, NJ corrections officer had sex with inmate who paid lookouts to hide it, feds say (July 28)
NJ Globe, Fort Dix corrections officer charged with sexually abusing inmate (July 29)
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THE HEAT IS ON
Rep Alma S. Adams (D-NC) is trying to make roasting in a cell – or shivering through the night – a thing of the past in federal lockups.
Rep Adams has introduced HR 9591, the Extreme Temperatures Injustice in Prisons Act, to set the first nationwide standards to shield people in BOP facilities from extreme heat and cold, after what her office said were years of reports that many prisons lack basic climate control.
Her bill was introduced in early July and has been sent to the House Judiciary and Energy and Commerce Committees. If it becomes law, sponsors say the measure would force the Bureau of Prisons to overhaul how it monitors temperatures, upgrades infrastructure, and reports on conditions across the federal system.
The last BOP-related bill to pass Congress, the Federal Prison Oversight Act – which, among other things, required the appointment of a prison ombudsman – has never been implemented. Congress appropriated an extra $5 billion for prison buildout in 2025 but included not a dime for the FPOA. Whether Congress would pass HR 9591 or come up with money to fund it is unclear.
Hoodline.com, Alma Adams Pushes Bill to Tame Extreme Temps In Federal Prisons (July 29)
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The LISA Newsletter is copyright 2026, LISA Foundation, PO Box 636, Norwalk OH 44857.
We use pseudonyms for defendants who are currently locked up. We did not do so for Ghislaine Maxwell because her identity is too integral to the report.
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