Tag Archives: FIRST STEP Act

Disparity is Gross But So What? – Update for April 27, 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.

GROSS DISPARITIES ARE GROSS BUT NOT ALWAYS REMEDIABLE

Back about 25 years ago, David Luster robbed a bank. And then another one. And another one. And so on. The money was good, but the process was a little too much for the authorities: they caught up with him, and by the time it was over, he was convicted of two counts of armed bank robbery, two 18 USC § 924(c) counts, and an Armed Career Criminal Act (18 USC § 924(e)(2)) count.

Dave was sentenced to 535 months. A lot of that resulted from the second § 924(c) conviction carrying a mandatory minimum sentence of 25 years. After the First Step Act passed in 2018, the § 924(c) mandatory minimum fell to 7 years (because Dave brandished a gun). In other words, Dave’s sentence likely would have been more like 320 months or so, and he’d be out now.

Dave moved for a sentence reduction under 18 USC § 3582(c)(1)(A), arguing that he had extraordinary and compelling reasons under USSG § 1B1.13(b)(6)’s “unusually long sentence” standard for the grant of a reduced sentence. He asked the court to consider the gross disparity between his 535 months and the 320 months he would have received under the First Step Act’s revised sentencing scheme, as well as his “exemplary rehabilitation,” strong family-support system, and genuine remorse. Dave emphasized that he was a first-time offender who engaged in “aberrant behavior” and did not pose any further risk to the public after over two decades in prison.

The district court denied his motion, holding that Dave’s reasons were not extraordinary and compelling and that the 18 USC § 3553(a) sentence factors weighed against his release, due primarily to the violent nature of the offense.

Last week, the 11th Circuit affirmed, holding that the district court did not abuse its discretion. Even though USSG § 1B1.13(b)(6) allows courts to consider non-retroactive changes in law that create a “gross disparity,” the Circuit noted, the policy statement is discretionary – stating only that the disparity “may be considered” after giving “full consideration of the defendant’s individualized circumstances.” Unlike the other five extraordinary and compelling reasons listed in § 1B1.13(b), only (b)(6) gives the district court the option of finding that unchallenged facts are not “extraordinary and compelling.”

What’s more, the 11th held that Dave’s district court was entitled to deny relief based on the § 3553(a) factors alone. The judge’s emphasis on the violent nature and circumstances of the robberies (including brandishing and placing guns to the victims’ heads) provided an adequate, permissible basis to deny the motion. The weight to give the § 3553(a) factors and the decision to grant a sentence reduction, the Circuit ruled, “remain firmly in the court’s discretion, and the district court’s decision here did not fall outside that range.”

This decision illustrates a practical rule: even where a defendant identifies a major sentencing disparity created by non-retroactive changes in the law, the district court has the authority to reject the disparity as an extraordinary and compelling reason. The other five reasons listed in § 1B1.13(b) are fact-driven: for instance, if you’re going to die of a disease within a few months, that fact is extraordinary and compelling whether the court wants it to be or not. Only (b)(6) lets a court agree that a gross disparity exists due to a change in the law, but refuse to find it justifies relief as an extraordinary and compelling reason.

United States v. Luster, Case No. 24-13731, 2026 U.S.App. LEXIS 10494 (11th Cir., April 13, 2026)

 

~ Thomas L. Root

Billions for a Presidential Whim – Update for April 17, 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.

MONEY AND WASTE – THE BOP LAST WEEK

The Trump Administration’s Fiscal Year 2027 budget wish list proposes a $1.7 billion increase to the Federal Bureau of Prisons’ current $8.1 billion budget, building on the $5 billion extra funding for prison repair and staffing the BOP got in last summer’s One Big Beautiful Bill Act.

Tucked into the $1.7 billion is $152 million allocated for the first year of costs to rebuild Alcatraz as a high-security federal prison facility, consistent with President Trump’s fixation of the symbolism of Alcatraz for a “tough on crime” administration. Last summer, the BOP trumpeted, “Alcatraz will stand as a beacon of American resolve, where the most dangerous offenders face accountability. For the public, it’s a promise fulfilled—a stronger, safer America. And for President Trump, it’s a project that will make our nation proud.”

We’re always proud to spend billions on a new supermax when we have a perfectly serviceable one in the high plains of Colorado.

The BOP could use some of its money more judiciously, Senator Cory Booker (D-NJ) told the Internet newsroom NOTUS last week. Booker complained that the BOP frequently transfers inmates to halfway houses long past when they are eligible, wasting millions of dollars in interest payments to nonprofits. “And while BOP said it’s making progress on addressing the delays,” NOTUS reports, Booker “said it’s not happening fast enough.”

“At best, this is an infrastructure and process failure; at worst, a blatant disregard for the law and public safety,” Booker, one of the co-sponsors of the First Step Act, said in a statement to NOTUS.

Homeland Security Today, Trump FY2027 Budget Proposes Record Homeland Security Boost, $1.5T Defense Spending Surge (April 5, 2026)

Filter, White House Budget: No Funds for Housing, Some for Reopening Alcatraz (April 9, 2026)

NOTUS, Bureau of Prisons Wastes Millions Holding Inmates It Could Transfer to Halfway Houses (April 7, 2027)

~ Thomas L. Root

Bad Boys, Island Living, and Money – Update for April 9, 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.

BOP IN THE NEWS

True Crime:  Sandra Barnes, Deputy Assistant Inspector General for the Office of Inspector General’s Investigations Division, said the office receives about 17,000 complaints a year and that roughly 80% of them concern the Federal Bureau of Prisons (BOP).

On Transparency Talk, Barnes described how the Investigations Division is organized into nine regions and two specialty offices, and said roughly 95% of cases open as criminal inquiries. “We’re running two investigations for every case that we have,” she said, meaning the OIG pursues both criminal allegations and parallel administrative-misconduct reviews.

Barnes said common criminal allegations include introduction of contraband, bribery, excessive use of force and staff sexual abuse.

Citizens Portal, Deputy Assistant Inspector General Sandra Barnes outlines OIG probes into BOP staff corruption and contraband (April 1, 2026)

Trump Asks Congress for Alcatraz Money:  President Trump is asking for $152 million from Congress to return Alcatraz Island in San Francisco Bay from a tourist attraction back into an enlarged and rebuilt maximum-security prison “to house America’s most ruthless and violent offenders.”

The New York Times said, “The plan faces immense political and practical roadblocks. It has generated enormous pushback in San Francisco, where tourism is one of the biggest industries and Alcatraz is at the top of many visitors’ itineraries.” The BOP already has a much more modern maximum-security facility in Florence, Colorado.

The island facility has not housed inmates since 1962.

The New York Times, Trump Seeks $152 Million to Begin to Turn Alcatraz Back Into a Prison (April 3, 2026)

On the Subject of Money…:  BOP Director William K. Marshall III admitted to Walter Pavlo last week that despite all of last summer’s optimism, the FY 2026 BOP budget was a disappointment. “We were very, very excited… we thought finally we’re going to be able to address some of these needs,” Pavlo reported that Marshall said. “And then we get the final bill, and it’s $8.1 billion. Significantly less than the $8.7 billion we believed was in the One Big Beautiful Bill.”

The BBB gave the BOP a one-time shot of an extra $5 billion – $3 billion for staffing and training, and $2 billion for infrastructure. Marshall said of the money for improvements, “We will use all of that, but we cannot rely on it for ongoing operations.” Leadership must now decide whether to stabilize current gaps or invest in long-term change.

Marshall told Pavlo the BOP is creating a dedicated office to oversee First Step Act implementation. “Our goal is to have 15 dedicated employees that exclusively work on FSA every day,” Pavlo reported that Marshall said. “For the first time ever, the BOP received $409 million as part of our budget for FSA Rick Stover said, “We scrutinized our FSA spending plan line-by-line. In doing so, we found funds that were not directly related to FSA implementation. That money was reallocated to other areas that directly impacted FSA. We did the same thing for the FSA-allocated positions. If we could not justify a direct connection to the position improving FSA implementation, we abolished it.’

Forbes, BOP Director Marshall Plots New Direction for the Bureau of Prisons (April 2, 2026)

~ Thomas L. Root

FSA Credits Not Redeemable for Supervised Release, 2nd Circuit Says – Update for April 2, 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.

TOO GOOD TO BE TRUE

More often than I like, prisoners seeking full use of their First Step Act time credits awarded under 18 USC § 3632(d) insist that if they can’t use them for halfway house/home confinement because there’s not enough time left on their sentence, they can apply them to shorten their time on supervised release.

Lately, they all point me to Rivera-Perez v. Stover, an unpublished District of Connecticut case in which the judge did exactly that: shortened a prisoner’s supervised release term because the Federal Bureau of Prisons had not allowed the inmate to use all of his FSA credits due to space limitations at the halfway house.

My granddaughter Helen loves unicorns. But no matter how hard she tries, she can’t wish them into existence. Last week, the 2nd Circuit said the same is true of using FSA credits to shorten supervised release.

Raul Rivera-Perez filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP miscalculated his FSA time credits and illegally prevented his transfer from prison to a halfway house. However, while his petition was pending, Raul was transferred to a halfway house, and the BOP thus argued that his petition was moot. The district court, on its own motion, decided that the FSA requires application of credits to reduce a prisoner’s term of supervised release, and it did so.

The BOP appealed.

The 2nd examined “the two critical sentences of § 3632(d)(4)(C): ‘Time credits earned . . . by prisoners… shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.’ ”

Raul claimed that the language meant that FSA credits had to be used to shorten supervised release. The BOP said it just meant that FSA credits could be applied to get Raul to supervised release more quickly by shortening his sentence.

The Circuit conceded that the statute was ambiguous. However, it ruled, “the context of the phrase ‘applied toward time in… supervised release’ resolves the ambiguity in favor of [the BOP’s] reading of the statute. Recall that the contested phrase immediately precedes the following sentence: ‘The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.’ 18 USC § 3632(d)(4)(C). We conclude that this second sentence confirms [the BOP’s] reading of the statute because it unquestionably contemplates a transfer from prison to prerelease custody or supervised release, not a reduction of time spent in prerelease custody or a term of supervised release.”

Sorry, Helen. There are no unicorns. And FSA credits can’t shorten supervised release.

Rivera-Perez v. Stover, Case No. 25-149, 2026 U.S.App. LEXIS 8819 (2d Cir. March 26, 2026)

~ Thomas L. Root

‘Random Compassion’ Wasting A Resource, Former DOJ Official Says – Update for March 27, 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.

COMPASSIONATE RELEASE NEEDS SERIOUS STUDY

Jonathan Wroblewski, a former ex officio member of the US Sentencing Commission, director of Harvard Law School’s Semester in Washington Program, and longtime federal prosecutor and defense attorney, wrote in a Substack column last week that the disparities and under-utilization of compassionate release require comprehensive review by the Sentencing Commission.

Professor Mark Osler wrote a few months ago that President Trump’s use of the pardon power is like a driver who uses a “classic Jag to knock down an old house by slamming it into a wall again and again and again as a crowd gathers, aghast. It is a terrible use of a beautiful machine.”

Wroblewski suggests that compassionate release has similarly always been a beautiful machine, even as it was practiced for more than 30 years following the enactment of the Sentencing Reform Act. Its misuse prior to the First Step Act lay in the Bureau of Prisons’ chary use of the authority. Now, the misuse lies in its inconsistent implementation even as it has morphed into something much more than just a means to send dying prisoners’ home. Wroblewski writes that now, compassionate release serves a broader function,

with the Sentencing Commission authorizing sentence reductions for those suffering from a serious physical or medical condition or a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process. Sentence reductions are authorized for the old, for those with acute challenging circumstances, victims of abuse, and those serving an unusually long sentence that would today be different on account of a change in the law. There’s even a catch-all provision for other circumstances that are “similar in gravity” to those articulated in the Guidelines. Interestingly, there’s nothing about penitence or contrition.

But compassionate release is used seldomly and inconsistently. The BOP is holding than 10,000 people aged 61 or older. The National Council on Aging reports that almost all adults in the United States age 65 or older have at least one chronic medical condition, 40% are obese, and significant numbers have COPD, diabetes, or cancer. Of course, many studies report that older adults in prison are significantly more likely to experience serious medical conditions or disabilities, with cognitive impairments, for example, being twice as prevalent compared to their peers living in community settings. There are undoubtedly many hundreds, if not thousands of federal prisoners who are, as described in the Commission’s policy statement on compassionate release, “suffering from a serious physical or medical condition, a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process that substantially diminishes the ability of the defendant to provide self-care . . .

About one person dies in BOP custody each day. The BOP admit that deaths are due to “cancer,” “pulmonary,” “cardiac,” “blunt trauma,” “hanging,” and “drug overdose.” There almost certainly are dozens — or hundreds — of BOP prisoners “suffering from a terminal illness,” Wroblewski wrote, such as “metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia,” as described by the Commission in its compassionate release policy.

Data show that the longer someone is in BOP custody, the more likely it is that they will be granted compassionate release. The primary reason given by judges for granting compassionate release is rehabilitation, although the Sentencing Commission reports that “[i]n all cases where the court gave rehabilitation as a reason for the granted motion, the court also gave one or more other reasons.”

Subject to a Supreme Court decision in a pending case, thousands of BOP prisoners with long sentences will also be subject to the “changes in law” provision of compassionate release, although the precise number is impossible to calculate. Many will experience changes in family circumstances during their years of incarceration.

Wroblewski wrote that from the data, “I would expect a couple of thousand compassionate release motions would meet the Commission standards each year (an educated guess, really).” Yet Sentencing Commission data for FY 2024 show only about 2,700 inmates filed for compassionate release and of those, only 391 of the motions were granted:

But when you look just a little deeper, the data are quite troubling. They show tremendous disparities in the application of compassionate release, strongly suggesting that compassionate release is not being implemented with the certainty and fairness in meeting the purposes of sentencing required by the Sentencing Reform Act. The disparities evident from the Commission data ought to be studied further by the Commission to determine whether they are indeed unwarranted and whether further adjustments need to be made to compassionate release policy.

Wroblewski noted substantial disparities in compassionate release grants. While the Middle and Southern Districts of Florida processed 11% of the total motions filed nationwide, they only had 4% of the total number of defendants sentenced nationwide that year. Eight districts that sentenced 4.5% all defendants reported zero compassionate release motions filed. These districts collectively sentenced 2,818 defendants in FY 2024 or about 4.5% of the total.

The rate at which motions are granted varies dramatically across the country as well. “Among the districts that reported more than 20 motions filed in FY 2025,” Wroblewski wrote, “the grant rate varied from zero to 56%. In the District of Maryland, for example, judges granted 31 pct of the 95 compassionate release motions filed there, while judges in the Northern District of Ohio granted just 2.5% of the 80 motions filed, and judges in the Eastern District of Wisconsin granted zero motions of the 35 filed there.”

Although the longer a prisoner has been locked up, the greater the chance a compassionate release motion will be granted, the number of motions filed by long-serving prisoners is relatively few. And while the BOP must be asked to bring the compassionate release motion before the prisoner files it himself or herself, the BOP moved for compassionate release only 19 times during the year (out of over 2,700 filed).

Wroblewski argued, “Given the number of elderly, the number of deaths in the Bureau of Prisons, the number of long sentences being served, it seems virtually impossible that the Bureau of Prisons is applying the compassionate release statute consistently as the Commission intended.”

Substack, What’s Really Going on with Compassionate Release? (March 19, 2026)

~ Thomas L. Root

Circuit Split on Extent of § 2244 Permission May Portend SCOTUS Review – Update for March 13, 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.

RAGLAND’S BEST…

Michael Ragland won one at the 11th Circuit last week, convincing the appeals court on rehearing that because his pre-First Step Act sentence had been vacated after the FSA passed, he should be resentenced under the Act (which would cut out excess time on six 18 USC § 924(c) convictions, dropping his sentence from 172 to about 65 years).

Prior to the FSA, passed December 21, 2018, anyone convicted of a second § 924(c) conviction for using or possessing a gun during a drug or violent crime – even if the offense occurred on a successive day – would receive a mandatory minimum sentence of 25 years on top of any sentence for any other count.  Sell a half pound of pot every day for a week, and you would be sentenced for selling 3.5 lbs. of weed (maybe 21 months in prison, not a lot under the Guideline). Selling that pot with a gun stuck in your pants, and before First Step, you would pile seven § 924(c) counts onto your sentence.  The first one would add at least 5 years to your 21 months. But § 924(c) counts for successive days would add a whopping 150 years – 25 years per count – to the total. Your sentence just became 1,881 months in prison.

We have covered all of this before. Remember the pancakes?

That wasn’t what § 924(c) was intended to do.  Rather, Congress meant that if you got convicted of possessing, using or carrying a gun during a violent or drug crime, did your time, and then got convicted of another § 924(c) offense after you got out, you hadn’t learned a thing. A 25-year sentence is just what you need.  But Congress was sloppy, writing the statute to say that any subsequent § 924(c) offense – even if it happened the next day or even an hour later – carried the 25 years. U.S. Attorneys back then were not known for moderation (unlike these days, when they’re known for not telling the truth). The “stacking” aspect of the old § 924(c) statute was an irresistible tool to them.

FSA changed that. Now, for the 25-year mandatory minimum to apply, you have to have been convicted of a prior § 924(c). That would still give our hypothetical weed seller with a gun stuck in his pants a minimum sentence of 21 months plus a mandatory 420 months for the gun, but his sentence would have at least become merely excessive rather than stratospheric.

Unfortunately, the FSA change to § 924(c) did not apply retroactively to people already sentenced. That caused some weirdly unjust outcomes. If our hypothetical weed seller had been sentenced on December 1, 2018, he would have gotten the full 1,881 months. Had his sentence been imposed just a month later, on January 2, 2019, his sentence would have been about 24% of that.

What was even more unfair (if that were possible) was that people sentenced before FSA passed but had their sentences vacated on appeal (requiring resentencing) were being denied FSA’s protection when the new sentence was imposed, because their first sentence had been handed down before FSA passed.

The Supreme Court’s 2025 decision in Hewitt v. United States fixed that anomaly, holding that any § 924(c) sentence – even a resentencing – imposed after First Step became law had to comply with the FSA. Thus, for Mike Ragland, last week’s outcome was preordained by Hewitt and surprised no one. The decision is interesting, instead, for its potential as the next Supreme Court § 2255 procedure case.

Mike previously got permission under 28 USC § 2244 to file a second or successive § 2255 petition raising the § 924(c) resentencing issue. But while the § 2255 motion was pending in the district court, he asked permission to amend it to raise other sentencing issues. The district court refused Mike unless he got approval from the 11th Circuit to file yet another successive § 2255 motion.

In last week’s decision, the 11th agreed with the district court that Mike had to file a fresh § 2244 request for a second or successive § 2255 if he had other issues to raise.

The 11th said,

Here, we authorized Ragland to raise ‘one claim’ in his successive § 2255 motion: that he was actually innocent of Count Sixteen… Ragland argues that the 7th Circuit in Reyes v. United States reached a different result on similar facts… The 4th Circuit has also adopted this approach… To the extent our sister courts permit movants to add new claims that have not been screened, and which exceed the bounds of the leave granted by the court of appeals, we respectfully disagree…

The Circuit split on this procedural question is the kind of issue the Supreme Court lives for. Don’t be surprised to see it on SCOTUS’s docket next term.

United States v. Ragland, Case No. 23-12278, 2026 U.S. App. LEXIS 6612 (11th Cir. March 5, 2026).

Hewitt v. United States, 606 U.S. 419, 145 S.Ct. 2165 (2025)

~ Thomas L. Root

Shocking News from GAO! BOP Has Messed Up FSA Placement! Who’d Have Guessed? – Update for February 17, 2026

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GAO PAINTS PICTURE OF DEADBEAT BOP’S CHAOTIC HALFWAY HOUSE MANAGEMENT

The Government Accountability Office painted a bleak picture of the Bureau of Prisons’ halfway house placement program, a chaos of mismanagement that deprives inmates of First Step Act credits they have earned and halfway house operators of payments they are owed.

The 7-year-old First Step Act encourages federal prisoners to complete programs proven to reduce recidivism by promising them earned time credits that can shorten sentences and extend their time in prerelease custody in Residential Reentry Centers or RRCs (which we know as halfway houses) and on home confinement. Writing in Forbes last week, Walter Pavlo said, “Lawmakers understood what correctional professionals have long known. The last months of a sentence should focus on reconnecting people to jobs, housing, and families, not warehousing them in prison.”

Reality, however, is muted. The GAO reports that not only has the BOP not consistently moved eligible inmates into halfway houses on time, but often, the BOP does not even know how many people are eligible for and entitled to placement.

The Report said that “BOP officials said they do not know because the dates individuals are eligible to transfer are not readily available… GAO found that BOP did not apply all the earned time toward placement in RRCs and home confinement for 21,190 of 29,934 individuals reviewed, for reasons such as insufficient RRC capacity and court orders. However, the full scale of this issue is unknown due to the lack of readily available data on eligibility dates.”

The problem has been due in part to limited capacity in BOP-contracted halfway house and home confinement spaces, BOP officials told GAO. However, the Report stated, “BOP does not know the full extent of this shortage because it has not comprehensively assessed its capacity and related budgetary needs. Without these assessments, BOP cannot ensure it has enough space for incarcerated individuals to transfer on time. BOP could also miss opportunities to increase revenues and decrease costs to the federal government.”

As of September 30, 2024, the BOP was using 91% of its contracted halfway house beds and 121% of its contracted home confinement space. A full 38% of halfway houses were at or above 95% capacity, and 62% were at or above the 95% capacity for halfway house slots. In fairness to the BOP, since William K. Marshall III assumed the Director’s slot, the agency has prioritized home confinement through the alternative Federal Location Monitoring program, managed by the US Probation Office instead of halfway house staff.

GAO also found that the BOP has been a deadbeat on a scale that would get a defendant on supervised release sent back to prison. From 2022 through March 2025, the Bureau “made roughly 65,000 late payments to contractors, including to RRCs,” according to the Report. “As a result, the agency paid $12.5 million in interest penalties as part of $2.8 billion in payments to contractors. In addition, GAO found that BOP paid RRCs late about 70% of the time, from fiscal years 2023 through 2024.”

It should be unsurprising that halfway houses would be less than enthusiastic about working with the BOP to expand their businesses: the Report said that as a result of late payments, halfway houses “face hardships due to the late payments — needing private loans to pay staff. One halfway house representative said late payments have made some halfway houses reluctant to bid for new BOP contracts, which can further complicate BOP’s plans to expand capacity.”

Pavlo wrote, “The BOP understands that it has a problem and after years of not addressing it now realize that the solution is going to take time.” A BOP spokesman said, “[T]he Bureau has actively posted Requests for Information… in more than 20 locations nationwide to expand RRC and home confinement services… With respect to home confinement, the Bureau is transferring individuals as quickly as possible once they reach their Home Confinement Eligibility Date and meet all statutory and public safety criteria. We are committed to ensuring individuals are not held longer than necessary when they are appropriate for home confinement placement.”

Government Accountability Office, Bureau of Prisons: Actions Needed Better Achieve Financial and Other Benefits of Moving Individuals to Halfway Houses on Time (February 11, 2026)

Forbes, GAO Critical of Bureau of Prisons Use of Halfway Houses (February 12, 2026)

~ Thomas L. Root

Shrinks Do A Runner And Other BOP Headaches – Update for February 3, 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.

ROUGH WEEK FOR THE BOP

Last week began with The Marshall Project reporting that as of last spring, “just one in five federal prisons had a fully staffed psychology department… “[d]ozens of federal prisons nationwide had fewer than half the psychologists needed[and] at more than 10 prisons, there was one psychologist, or none.”

“Those are catastrophic numbers,” retired Bureau of Prisons psychologist Jill Roth, who served as national coordinator for the BOP’s prison rape elimination program until 2021, told TMP.  The report said that the BOP’s psychology program “used to be the envy of other correctional systems, according to psychologists who worked for the agency for decades. ‘BOP was a place psychologists were excited to work,’ Roth said. ‘It has changed.’”

TMP recounted that one BOP psychologist said he left a West Coast prison in May after he was the only staff psychologist for more than 700 people, saying that he feared that the care he could provide under those circumstances did not meet basic professional standards. “At some point it becomes unethical to continue to participate in that,” he was quoted as saying. “Can we provide this group of humans the care they’re entitled to? The answer is no. One person cannot ethically do that.”

The same day, the Dept of Justice Office of Inspector General issued its annual Top Management and Performance Challenges report to Congress, noting that the BOP “continues to face persistent challenges, most critically those presented by staffing shortages, deteriorating infrastructure, and the introduction of contraband. In recent years, deficiencies in the provision of healthcare to inmates and sexual abuse of inmates by BOP staff have emerged as additional significant challenges.”

Writing in Forbes, Walter Pavlo said, “Over the past two decades, the OIG has issued more than 100 reports documenting systemic problems at the BOP, and many of the same deficiencies appear year after year… Staffing shortages, deteriorating facilities, contraband, misconduct, and weak oversight have become familiar themes in the OIG’s annual Top Management and Performance Challenges reports. The latest report reiterates what oversight bodies have said repeatedly: the BOP’s problems are systemic, long-standing, and largely unresolved.”

The Government Accountability Office piled on the next day, reporting that for its study period of March through December 2024, the BOP has been failing in its First Step Act obligation to conduct needs assessments within required time frames, to use uniform methods to record when inmates decline to participate in a recommended program, and to keep program participation data. Most concerning, GAO found that as of the ends of 2024, the BOP had failed to apply all FSA credits to 70% of eligible inmates, and 54% of inmates received no prerelease custody credit for their earned FSA time.

GAO found that BOP generally applied all time credits toward supervised release but not for prerelease custody.

The report noted that BOP had implemented new planning tools in 2024 and 2025 to help staff anticipate upcoming transfers to prerelease custody and ensure incarcerated people receive their FSA time credits, and that GAO is currently examining BOP’s efforts to forecast capacity needs and provide sufficient halfway house and home confinement resources.

The Dept of Justice was required to issue annual FSA reports to Congress for five years after the Act passed. The last one was issued in June 2024. GAO recommended that Congress amend the law to require continued reports, because “without such information, Congress may be hindered in its decision making regarding the FSA.”

The Marshall Project, Amid ‘Catastrophic’ Shortage, Psychologists Flee Federal Prisons in Droves (January 26, 2026)

DOJ Inspector General, Top Management and Performance Challenges Facing the Department of Justice | 2025 (January 26, 2026) 

Forbes, The Bureau Of Prisons: When OIG Warnings Meet GAO Reality (January 28, 2026)

GAO, Federal Prisons: Improvements Needed to the System Used to Assess and Mitigate Incarcerated People’s Recidivism Risk, GAO-26-107268 (January 27, 2026)

~ Thomas L. Root

A Compassionate Release Win for Commutees – Update for January 6, 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.

COMMUTATION DOESN’T NEGATE COMPASSIONATE RELEASE

In 2012, Jonathan Wright was sentenced to life imprisonment after a federal drug conviction. In 2024, he filed an 18 USC § 3582(c)(1) compassionate release motion based on First Step Act changes in 21 USC § 841(b)(1)(A)  mandatory minimum sentences.

The district court reduced Jon’s sentence to 420 months followed by 10 years of supervised release but never addressed Jon’s argument that his prior Arkansas convictions no longer qualified as predicate offenses for his sentence enhancement.

Jon appealed, arguing that the district court should have reduced his sentence even more. While the appeal was pending, President Joe Biden commuted Jon’s sentence to 330 months last January.

The government argued that Biden’s commutation should moot Jon’s appeal, and even if it didn’t, the Arkansas statute’s overly broad definition of controlled substance should nevertheless be read to be consistent with federal law.

Last week, the 8th Circuit gave Jon a late stocking stuffer.

Although the Circuits are split on the question, the 8th ruled that Biden’s commutation did not moot Jon’s compassionate release motion. The President’s power to commute criminal sentences derives from the Constitution – the Article II power to “grant Reprieves and Pardons.” “A commuted sentence,” the Circuit held, “does not become ‘an executive sentence in full’ but instead remains a judicial sentence – but one that the executive will only enforce to a limited extent.

As for Jon’s prior convictions under Arkansas § 5-64-401, the 8th observed that the statute incorporated a state Dept of Health regulation that defined a “narcotic drug” to include all cocaine isomers, while federal felony drug offenses encompass only optical and geometric cocaine isomers. Circuit precedent holds that a state drug statute that criminalizes even “one additional isomer” of cocaine beyond what the federal statute proscribes cannot produce a predicate felony drug offense for federal sentencing purposes.

The Circuit ruled that the district court’s decision to not consider that Jon’s priors no longer counted under § 841(b)(1)(A) when ruling on his compassionate release motion “was based on an erroneous legal conclusion and accordingly was an abuse of discretion.” When resentencing Jon on remand, the 8th directed, the “district court is required only to considerthat Jon ‘s prior convictions no longer qualify as predicate offenses for his sentence enhancement. The district court is not required to accept this point as a reason to further reduce Jon’s sentence.”

This opinion is significant, ruling in essence that at least in the 8th Circuit, changes in the law creating gross disparities between the existing sentence and the sentence if imposed today have a substantial role in the compassionate release calculus.

United States v. Wright, Case No. 24-2057, 2025 U.S. App. LEXIS 33882 (8th Cir. December 30, 2025)

~ Thomas  L. Root

First Step Act Reform Coming Around Again in the Senate? – Update for December 22, 2025

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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.


WHAT’S OLD IS NEW

The legendary Congressional odd couple – a conservative farm-country nonagenarian and liberal urban ex-bar owner – who brought you the First Step Act seven years ago are at it again.

Senate Judiciary Committee Chairman Charles Grassley (R-IA) and Ranking Member Richard Durbin (D-IL) last week introduced several bills – all of which have been proposed before without passage – to restore some of what has expired and other FSA “fixes” needed since 2018.

The First Step Implementation Act would permit district courts to apply First Step Act sentencing reform provisions retroactively, enhance the discretion courts have when sentencing nonviolent drug offenders, and permit sealing or expunging of records of nonviolent juvenile offenses.

The Safer Detention Act would reauthorize and reform the now-expired Elderly Home Detention Pilot Program (which ended in September 2023) and make technical corrections in 18 USC § 3582(c) to benefit compassionate release procedure.

The Prohibiting Punishment of Acquitted Conduct Act – a reprise of the 2023 bill – would prohibit judges from considering conduct of which defendants had been acquitted by juries in setting sentences. The bill would take a legislative stand on an issue that the Supreme Court has so far refused to consider as a constitutional issue.

The First Step Implementation Act, the Safer Detention Act and the Prohibiting Punishment of Acquitted Conduct Act are endorsed by organizations running the gamut from the ACLU and Dream.org to Right On Crime and the Conservative Political Action Conference.

“Each of these bills strengthens public safety in a different way – by ensuring fairness at sentencing, focusing resources on dangerous individuals, and fully implementing reforms that reduce recidivism,” Brett Tolman, executive director of Right On Crime said. “Together, they move the federal system toward a smarter, more accountable, and more effective approach to public safety.”

Given that Charles Grassley is chairman of the Judiciary Committee, the bills are likely to get a hearing. However, the bills all made it to the Senate floor in 2022, only to die at the end of the session without consideration.

Grassley’s Senate term does not expire until 2028, but Durbin’s expires in December 2026. Durbin has announced that he will not seek reelection.

Senate Committee on the Judiciary, Durbin, Grassley Introduce Criminal Justice Reform Bills (December 16, 2025)

First Act Implementation Act of 2025 (S. —) (submitted December 16, 2025)

Safer Detention Act (S. —) (submitted December 16, 2025)

 

Prohibiting Punishment of Acquitted Conduct Act of 2025 (S. —), (submitted December 16, 2025)

~ Thomas  L. Root