The Sentencing Commission meeting about the guideline is this week and if you want to be lord of the ultimate sentencing policy nerds you can watch the meeting live or as an archive here.

At the meeting, the Commission will consider whether to promulgate a new §3B1.6, titled “Use of Unmanned Aircraft.” The proposed amendment is a spin-off the SAFER SKIES Act which recently directed the Commission to substantially increase guideline ranges for crimes involving drones.

The proposed commentary would define “unmanned aircraft” by cross-reference to 49 U.S.C. § 44801. Under the new language, an offense involving use of an unmanned aircraft would receive a 4-level increase. The more serious 6-level increase ties to a statutory sentencing enhancement in 6 U.S.C. § 124n-1(c). The +4 version applies when a defendant is convicted of a felony not based solely on drone operation but knowingly operates a drone “during, in relation to, or in furtherance of” an offense.

Importantly—the guideline as proposed would say that “use” does not include mere possession.

For defense lawyers, we will be fighting about whether the drone was merely possessed, if it was actually used to advance the offense, and what the client did knowingly. A four- or six-level increase will carry a consequential punishment increase. As always, however, if you have a drone case in the hopper now, you can use an ex post facto argument to keep the enhancement out of your case. See Peugh v. United States | 569 U.S. 530 (2013) (holding that “there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense”). 🎬

Does your misdemeanor client with no criminal record and a job really need to be geographically confined to the judicial district during the term of supervision? Does your retirement-age client on Social Security really need to maintain employment or go back to school? Are there reasonable exceptions to a federal officer always needing to pre-approve a dwelling?

Here are some thoughts about how to fight back against the stamp of “standard.” In fact, the law and the federal sentencing guidelines are actually pretty decent on this once you start digging.

Timing is Everything:

It is so much easier for our clients to curtail unnecessary conditions at the sentencing hearing, when they are represented by counsel, than to make changes once supervision has begun. During a term of supervision, a federal probation officer’s core skills and training are, by design, not oriented around flexibility. Changing supervision conditions (even if the USPO wanted to) requires paperwork, supervisory approval, and often judicial intervention.

The sentencing hearing is the occasion when everyone concerned with the case has put the most time and thought into the history and characteristics of the defendant and the defendant’s individualized circumstances. Helpfully, there is also a formal process at sentencing to debate and challenge supervision conditions. The momentum turns against changing conditions once the ink dries.

Is it Even Legal to Pile On All Those Conditions?

To be sure, there are mandatory conditions. Some offense types carry more conditions of release than others. But the majority of supervision conditions are completely optional for the Court and can’t be imposed automatically. 18 U.S.C. § 3583(d) permits a discretionary condition only if it:

1. is reasonably related to § 3553(a)(1) and (a)(2)(B)–(D);

2. involves “no greater deprivation of liberty than is reasonably necessary” for those purposes; and

3. is consistent with any pertinent policy statements of the Sentencing Commission.

Instead of doing what 18 U.S.C. § 3583(d) says, the restrictions or requirements traditionally recommended by the Administrative Office of United States Courts (AO) are largely a one-size-fits-all list. The standard list was broadly designed by federal probation policy makers. It prizes standard organizational management above individualized need. The AO’s list was written for defendants across the board regardless of criminal history score or crime of conviction. And the list is now out of date.

The last version of the AO list came out in July 2024 and it is out of sync with the November 2025 revision to the federal sentencing guidelines. Courts and probation offices are still applying the list through force of habit and have been slow to implement the new guidelines about how supervised release and probation conditions are now supposed to be selected.

Federal courts are actually required to impose supervised release sparingly. The command of Congress is that the conditions involve “no greater deprivation of liberty than is reasonably necessary.” Dialing in the applicable supervised release conditions now requires individualized determinations of the needed supervised release conditions and how long the term of supervision will last. There are really very few “mandatory” conditions of supervision in the statute. Most of the conditions that have been imposed in a rote and automatic fashion over the past few decades are purely discretionary.

Now, on the record, the court must explain the reasoning for imposing (or not imposing) supervised release taking into account the statutory factors and the unique circumstances of each case. Effective November 1, 2025, USSG § 5D1.3 now provides the same guidance. The court should conduct an individualized assessment to determine what, if any, other conditions of supervised release are warranted.

Here’s what the Sentencing Commission amendment cheat sheet says about it:

There is no such thing as a “standard” condition under 18 U.S.C. § 3583(d):

Congress created two categories of supervision conditions: mandatory and discretionary. That’s it. The recommended “standard” conditions are an administrative convention that does not relieve the courts of the statutory obligation to justify each condition.

The Ninth Circuit said as much in United States v. Montoya, 82 F.4th 640 (9th Cir. 2023) (en banc): a district court must orally pronounce all discretionary conditions, including the ones labeled “standard,” because they are discretionary. There should be other support like this in other circuits. It isn’t radical, it’s just what the law says.

The United States Probation Office has decades of auto-text it puts into Pre-Sentence Reports recommending supervision conditions that now deserve very close scrutiny. Because the law is on the defense side, objecting to non-mandatory supervision conditions that carry a “greater deprivation of liberty than is reasonably necessary” should be a winner with the courts.

Punishment is Off the Table:

In scrutinizing whether a supervised release condition is legal, ask yourself whether it is more punitive than prescriptive? Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment — is not on the list of what the Court can consider in selecting supervision conditions under § 3583(c) or § 3583(d)(1). Congress left it out.

In Esteras v. United States, 606 U.S. 185 (2025), the Supreme Court held that a district court may not consider § 3553(a)(2)(A) when revoking supervised release, because § 3583(e)’s list is exhaustive and Congress’s omission was deliberate. Esteras is a revocation case, but the structural logic runs the same way on the imposition side: supervision conditions can’t be punitive because § 3583(c) and § 3583(d)(1) omit § 3553(a)(2)(A). For instance, you could use this statutory argument defeat a punitive community service condition devised to punish and promote respect for the law.

Notably, if the Court is imposing a sentence of probation, § 3563(b) does allow punitive conditions like community service. See also United States v. Granderson, 511 U.S. 39 (1994). “[F]or supervised release—and for supervised release only—Congress omitted §3553(a)(2)(A). This, we think, is a distinction with a difference.” Esteras v. United States at 196 (emphasis included). Supervise releasees have already received the punishment of incarceration so unlike a probationary sentence, they can’t be punished again through the supervision conditions.

Object in writing:

During the PSR draft preparation phase, condition by condition, list what you want to strike from your client’s supervision and object. A general objection to “excessive conditions” gets a general answer. Number them. 🎳

For each condition you want to strike, ask four questions on the record:

• Is it authorized?

• Is it related to this offense and this person?

• Is it narrower than the alternative?

• What is the evidence supporting it?

• Does it really have to be the maximum term of supervision?

Is there a fundamental right impacted by the supervised condition?

Since the code calls for the court to weigh how “great” the deprivation of liberty is relative to the need for the supervision conditions, bringing up the non-exclusive following could help:

• Kent v. Dulles, 357 U.S. 116, 117 (1958) on right to travel. 🛫

• Kyllo v. United States, 533 U.S. 27 (2001) on right to have one’s own home free from unreasonable governmental intrusion. 🏠

Will the Condition Interfere with Employment?

Where a condition burdens a defendant’s occupation, it must be imposed, if at all, “for the minimum time and to the minimum extent necessary to protect the public.” USSG § 5F1.5(b).

Make probation defend the source.

If the answer to your objection letter about the conditions is something to the effect of “this is our standard package,” you have your record. Boiler plate conditions are not allowed under 18 U.S.C. § 3583(d). If the probation officer cites administrative material from before the November 2025 amendments, same thing. The guidelines no longer support rote supervision conditions. If the PSR writer cites 18 U.S.C. § 3603 (about what probation officers are supposed to cover in their duties) note that § 3603 defines the officer’s duties only as to what the court directs.

Challenging the traditional stamp of so-called standard supervisions conditions is a fight worth having that we just might win. Federal criminal defense lawyers want to tell clients that some day the whole thing will be over. By using the 2025 guidelines alongside 18 U.S.C. § 3583(d) we can help bring that about with less friction. 🎬

Too often, federal sentencing has treated low‑level narcotics workers, support staff and extras as if they were leading men in the drug trade. With the 2025 revision of the guidelines, the U.S. Sentencing Commission has significantly changed the script. Within USSG §2D1.1, the Commission has added a “special instruction” that tells courts, in every drug case, to ask whether a role reduction applies and, if the defendant’s primary function is a low‑level trafficking function, to treat that reduction as “generally warranted.” You don’t even need codefendants or a conspiracy to qualify.

In case it wasn’t on your radar, the new special instruction augments the Chapter 3 guideline on role and advises the Court (and the US Probation officer writing the PSR) to do the following in each narcotics case (with my points of emphasis in bold):

Application of §3B1.2 (Mitigating Role) to §2D1.1 Cases

(A) Determine whether an adjustment under §3B1.2 (Mitigating Role) applies.

(B) In addition to the circumstances identified in §3B1.2, an adjustment under §3B1.2 is generally warranted if the defendant’s primary function in the offense was performing a low-level trafficking function.

(i) An adjustment under §3B1.2(a) is generally warranted if the defendant’s primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout; or

(ii) an adjustment under §3B1.2(b) is generally warranted if the defendant’s primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (e.g., the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense).

For purposes of subsection (e)(2)(B), the provisions of §3B1.2 apply in determining whether a mitigating role adjustment is warranted, except that the adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity. The extent of the adjustment shall be based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.

(C) The mitigating role provisions at subsection (a)(5) and the 2-level reduction at subsection (b)(17) apply regardless of whether the defendant receives the required adjustment from §3B1.2 (Mitigating Role) by direct application of §3B1.2 or by use of the special instruction in subsection (e)(2)(B).

Combining Chapter 3’s minor‑role frame with §2D1.1.

The starting point is still §3B1.2 which authorizes a 2‑ to 4‑level reduction for a defendant “who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity.” Application Note 3(c) directs courts to consider the totality of the circumstances, including:

• The defendant’s understanding of the scope and structure of the criminal activity.

• The degree of participation in planning or organizing.

• Decision‑making authority.

• The nature and extent of participation.

• The degree to which the defendant stood to benefit.

In practice, many courts and probation offices have applied this framework narrowly, especially in drug cases. Minor role was often denied where the complaint was thin or there were few charged co‑participants, on the theory that there was no meaningful “average participant” to compare the defendant against. The result was a distortion of lower level narcotics workers as ineligible for role reductions. The 2025 amendment to §2D1.1 corrects that and opens up role reduction to new categories of low level drug trafficking flunkies.

Applying §2D1.1(e)(2) and the focus on “function.”

The word the Commission chose in §2D1.1(e)(2) to help define drug trafficking roles is “function.” The special instruction asks judges (and the PSR writer) not just to label the defendant generically as a “minor participant”; but further asks whether the defendant’s primary function in the offense was performing a low‑level trafficking function. That should push courts to move beyond abstract role labels and into the practical question of: what job did this person actually do in the drug trade?

Was he driving the car, delivering the package, placing or answering calls on someone else’s instructions? There are tasks the Commission describes as “plainly among the lowest level of drug trafficking functions.”

For defense counsel, this emphasis on primary function may change how we build the sentencing story. Instead of fighting over whether the client “seems” less culpable than some hypothetical average participant, we can anchor our role arguments in what the client was asked/hired/expected to do. Discovery in §2D1.1 cases almost always reveals specific functions: courier, runner, dispatcher, supplier, organizer. When the record shows that the client’s primary function fits the low‑level categories the Commission lists, §2D1.1(e)(2) tells the court that a mitigating‑role reduction is “generally warranted.”

Minor role regardless of who else is on the stage?

The special instruction also addresses structural problems that have limited minor‑role findings in drug cases. For purposes of §2D1.1(e)(2), a mitigating‑role adjustment may apply:

• “Regardless of whether the offense involved other participants in addition to the defendant.”

• And “regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity.”

The key point is that the Commission has decoupled the availability of minor role from the happenstance of who was indicted and from rigid readings of “average participant.” This language recognizes what defense counsel sees in discovery every day: the record almost always reveals a larger operation of importers, sources of supply, bulk distributors and organizers, regardless of who appears on the caption. Courts should no longer pretend that only the named defendant exists.

The Sentencing Commission is urging more minor role adjustments in narcotics cases.

The Commission’s guidance here is explicit: it wants broader and more consistent use of §3B1.2 in drug‑trafficking sentencing and wants sentences for low‑level workers to reflect their limited role and function. If the defendant’s primary function is among the low‑ or lowest‑level trafficking functions identified in §2D1.1(e)(2), a mitigating‑role reduction is generally warranted. That is national policy no matter where you practice and judges and probation officers are supposed to apply it.

So, in your next §2D1.1 case, don’t treat minor role as a long‑shot add‑on. Treat it as a central question the Guidelines themselves raise in every case. If your client functions in a supporting role, say so, and then show the court how the Commission has already written a sentecning reduction into the script. 🎬

Apparently, if you want to go into a BOP facility after July 12, 2026 and bring anything in, it has to be in a special clear plastic bag.

Is that actually what the new rule says? Or may you still hand-carry a file folder, a laptop, or a battered copy of the USSG without any bag at all? That’s how I’ve always done it. I don’t think I’ve ever brought in a bag.

So if you have a bag, it has to be clear? Or do all objects have to be in a clear bag? Is it somewhat… unclear?

If you are reading this, you might be a lawyer. Read it and decide. I think they are just saying if you want a bag it has to be clear but some colleagues think the rule requires bags for any/all items:

On June 22, 2026, the Federal Bureau of Prisons (BOP) issued new national policy regarding entrance and search procedures at all BOP facilities.

Accordingly, starting on Sunday, July 12, 2026, all staff and visitors, to include legal visitors, will henceforth only be allowed a single transparent (aka clear) bag or backpack for all personal property, to include legal materials and electronic devices (e.g. laptops, tablets, and memory devices).

Transparent bags allow screening site staff to quickly assess content without prolonged inspections. This efficiency not only enhances security but also reduces the chances of items being concealed in opaque bags, which could pose potential threats. All bags will be screened with an x-ray device and items not readily identifiable are subject to search.

The size of the single transparent bag shall not exceed the standard airline maximum carry-on size limit of approximately 45 linear inches, generally 22 x 14 x 9 inches.

I’m putting a conforming bag in my trunk just in case. Since it is the BOP, who knows what they will say when I get there.

Speaking of these bags, it appears that they can be gigantic? Like the size of an airline carry on? That’s what it says. Maybe someday I could offer subscribers CJA Ringleader branded bags. Would that be cool? Until then, you can get the one pictured above here.

The oversized federal carceral footprint is due for a change. The USDOJ has been over-using incarceration which resulted in a 2014 crest of an upward trend line. The peak was brought about by two factors:

1. a mandatory minimum sentencing structure that flooded the federal system with non-violent drug offenders serving long, non-negotiable sentences; and

2. an aggressive expansion of federal jurisdiction and prosecutorial charging practices, particularly for drug trafficking, immigration offenses and firearms. Federal prosecutors were incentivized by DOJ policy and career culture to take up cases that had historically been handled by state courts, but to also bring the most serious charges available, stacking mandatory minimums to maximize sentence length.

As a result of these pro-incarceration federal policies and politics, the number of convicted offenders sentenced to federal prison grew 77% between FY1998 and FY2010 alone

At this point, however, the BOP hasn’t built a new facility since 2014 (USP Yazoo City). Prison populations are down following various reforms helped by advocacy from the federal criminal defense community. And this week, we learned that the list of facilities now scheduled for closure is:

• Beaumont FCI Low

• Big Spring FCI and Satellite Camp

• La Tuna FCI, FSL (Federal Satellite Low), and Satellite Camp

• Lexington FMC Satellite Camp

• Petersburg FCI Low

• Taft FCI (women’s facility already closed).

• In addition, Morgantown FPC and Duluth FPC will transition from minimum-security camps to FSL facilities.

The BOP is telling us explicitly that the reason that it needs to close institutions is due to “extreme” challenges in staffing. As of early 2026, BOP had more than 4,000 unfilled positions and a 24% correctional officer vacancy rate, with still more workers headed out the door.

BOP jobs are highly undesirable for obvious reasons. There’s a slick BOP want ad on YouTube trying to convince folks otherwise. But starting salaries at BOP are non-competitive. They have been as low as $19 per hour, which is less than Walmart and Target in many markets. Unhelpfully, the Trump administration canceled retention funding in 2025. Looking for better pay, over a thousand BOP workers have moved over to ICE which offered $50,000 signing bonuses. Additionally, many BOP institutions are located in rural or economically distressed areas with small local labor pools.

What does this mean for federal criminal defense clientele serving federal sentences?

Roughly more than 3,500 incarcerated people are going to be immediately impacted by the closure or classification change at eight facilities. Out of those people, there are several categories of inmates who are specifically excluded from camp or lower-security placements. These categories include sex offenders, deportable aliens, disruptive group (gang) members, and just about anyone else that the BOP determines requires heightened monitoring. Inmates in these categories might find themselves in a more restrictive security setting than what their designation requires for lack of other space.

The BOP program statement on designations was recently revised in May, 2026 after being pretty much static for 20 years. That could also make guessing what the BOP will do when it moves inmates around less predictable even for experienced BOP observers.

In the long run, if the contraction of the number of BOP facilities is successful, it may result in more institutions trying to operate over capacity. In the short run, a lot of people serving prison sentences are going to have a turbulent time. Moving from one prison to another often means loss of property, loss of family connection and starting over trying to get by in an inherently hazardous environment.

What can counsel do?

For federal criminal defense attorneys, the avenues for assisting impacted clients are limited. Fundamentally, 18 U.S.C. § 3621(b) expressly provides that placement designations are “not reviewable by any court.” Habeas petitions under 28 U.S.C. § 2241 sometimes work for problems that will impact the length of the sentence imposed by the Court. Other methods for getting at the sentence include pursuing compassionate release motions or advocating for full credit under the First Step Act’s earned time credit program.

The best thing to do is avoid/shorten the amount of time people go to the BOP at all. Remind your court that federal prison is a last resort requiring the shortest sentence reasonably necessary. With confirmation that the BOP is in “extreme” crisis, these BOP press releases are one more thing for the federal judges to think about. Congress and the Supreme Court command lower courts to exercise parsimony in sentencing, imposing only the minimum sentence necessary under 18 USC § 3553(a). That is all the more imperative now. The BOP is operating with a threadbare skeleton crew. The courts should respond by sentencing in favor of community supervision. 🎬

What I mean by wrong is that the lawyers and judges were doing a mass misreading the federal criminal code and procedures about pretrial release. I can’t think of another instance like this of statutory false consciousness. As a result, thousands of federal criminal defendants did not get a fair and legal hearing about whether they would be released or detained while their case was pending. The procedure by which countless defendants were detained was not correct or proper.

And then about 5 or 10 years ago, there was a shift here in Oregon and across the national defender community about what the pretrial release laws actually say. What the codes definitely don’t say is that federal criminal defendants may normally be detained following a simple hearing at arraignment about whether they pose a risk of nonappearance for court or are a danger to the community. It’s much more procedurally complex. In many cases, a correct reading of the code triggers multiple hearings. There can be a hearing within a hearing. A procedural turducken. 🦆🦃🐓.

When the code is followed correctly, more nonviolent and deserving defendants are eligible for release pending trial.

Teamwork is always making the dream work in our business, but the recent awareness of the correct process can be traced back to the vision and dogged efforts of one person: Alison Siegler. She understood not only that there was a grave problem with a misinterpretation of the federal code on pretrial release but also the terrible, disparate impact that was having on people of color and non-US citizens. She inspires me.

Here’s Alison’s easy to follow walk through of pretrial release procedures.

Pretrial Release Handout Siegler Feb

6.2MB ∙ PDF file

Download

Download

Don’t leave home without it (if your destination is a detention hearing or a meeting with your new detained client).

Here’s a sharp graphic from her team’s Freedom Denied report about the “problematic feedback loop” that undergirds excessive detentions in federal court:

If you are thinking “but CJA attorneys usually come in after their new client has been ordered detained and we don’t handle release hearings” instead think about examining whether the client’s pretrial detention is legit. There is a ripe opportunity here for CJA attorneys to go back and examine whether the Court got the law right. As a bonus, I’ve found that when I kick off the attorney-client relationship by fighting a well-grounded and righteous battle for immediate pretrial release, it sets a productive tone going forward.

Also, you may have heard that the the Federal Judicial Center (FJC) released the Seventh Edition of the Benchbook for U.S. District Courts. Thanks to Team Siegler, there’s a completely revised and corrected section in the benchbook that you can cite to as you guide the federal judges towards the bright light of truth and accuracy. 🌞

The bill was introduced in June, 2026 and from what I understand, would function somewhat like a safety valve in that it would authorize lower sentences than the mandatory minimums when those minimum functions as a penalty for going to trial, i.e., the “trial penalty.”

The bill has just been referred to House Judiciary and the odds of passage are uncertain. The US Attorneys will probably freak out and try hard to stop it.

Be that as it may, mandatory minimums can scare criminal defendants and their attorneys away from exercising the right to trial. Systematically, the lack of trials raise the risk that innocent and/or less-than-fully-culpable people will be convicted and incarcerated to avoid a more catastrophic result. Back in 2018, the NACDL (National Association of Criminal Defense Lawyers) released a groundbreaking report on the trial penalty which found that fewer than 3% of federal criminal cases go to trial. The NACDL is now applauding the introduction of The Right to Trial Act to restore some of the sentencing authority that trial judges ought to have following a trial and hearing all the facts.

The NACDL press release states:

The bill is also supported by Americans for Prosperity, Drug Policy Alliance, Fair & Just Prosecution, FAMM, The Innocence Project, Law Enforcement Action Partnership (LEAP), and Right On Crime.

How it would work:

The bill doesn’t abolish mandatory minimums across the board, but it gives judges explicit statutory authority to disregard them when the only real justification for the harsher sentence is that the defendant refused the plea and went to verdict.

1. Amendment of 3553(a):

The specific text of the bill would add three subparts to 18 U.S.C. 3553(a) which would state that the Court must consider the following new sentencing factors:

(8) the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer;

(9) in the case of— (A) crimes involving similarly situated codefendants or group conduct, the plea offer, if applicable, and each sentence (and anticipated sentence) of any similarly situated codefendant or similarly situated other person charged in the same or related offense who pled guilty; and (B) crimes not involving codefendants or group conduct, the plea agreements and the sentences for similarly situated defendants who pled guilty to similar offenses; and

(10) whether imposition of a statutory minimum sentence would constitute a penalty for asserting the constitutional right to a trial, thereby warranting imposition of a sentence below the statutory minimum.”

2. Amendment of 3553(e):

To shave time off the mandatory minimum, the bill would work basically just like the statutory side of sentencing relief for 5K cooperation. The same section which currently empowers the Court with “Limited Authority To Impose a Sentence Below a Statutory Minimum” would be amended to include that “the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial.”

How to use H.R. 9095 even though it isn’t a law yet:

We obviously can’t argue the bill is law, but we can use it in the way we talk about mandatory minimum sentences and the trial penalty as being something fair minded prosecutors and judges should abhor. H.R. 9095 is evidence that Congress is considering this as a problem in need of a statutory fix. Even pre‑enactment, we could negotiate by framing trial penalties as out of step with emerging reform momentum. Maybe:

• “The policy winds are shifting; this kind of trial‑penalty delta is increasingly hard to justify.”

• “do we really want this case to be the one that illustrates the problem?”

• “Here’s how Congress is starting to talk about the trial penalty; our case is a textbook example.”

With the Court, the existence of the bill is a potential hook for policy‑based arguments under current § 3553(a):

• “Members of Congress in both parties have now introduced a ‘Right to Trial Act’ that would to avoid using mandatory minimums as de facto punishments for electing trial.”

Perhaps we also argue that, even without the amendment, the existing criteria in § 3553(a) already permits the court to reject trial‑penalty‑driven severity. Factors like protecting respect for law, avoiding unwarranted disparities (especially with pleading co‑defendants), and imposing a sentence sufficient but not greater than necessary can all be used to counteract the trial penalty. The pending bill simply makes explicit what the parsimony principle already implies.

If nothing else, the existence of H.R. 9095 lends some credibility and credence to our argument that mandatory minimums and trial penalties are a problem that needs fixing. 🎬

What stopped me in my tracks was the reporting that “a Vancouver Police sergeant learned that a U.S. Customs and Border Protection lab in Chicago could analyze pollen spores on a person’s clothing to determine where that person had spent time.

Excuse me?

Apparently ICE deploys some kind of spore tracking to investigate suspicious human movement and migration. It’s called forensic palynology and it involves the analysis of pollen and spores in an investigative context to associate people and objects with spore-specific geographic locations. Pollen grains apparently have distinct morphologies that can be used to infer the geographic origin and movement of items, soil, clothing, or people.

So, ICE is using this technology. It isn’t hard to imagine how it could go. Let’s say a person has their coat or car seat swabbed at a checkpoint or other stop. The swab detects pollen that is purportedly unique to someplace in Mexico. This is construed as a “tip” or “reliable source” that goes into the mix of probable cause but is then corroborated or added to other suspicions. Maybe the pollen tracing is never disclosed because the government claims an independent basis from “investigative leads.” Let’s say the pollen shows a nexus with a suspected narcotics supply chain and it triggers a secondary inspection or probable cause. Let’s say the police assume the subject is lying about where they have been if the pollen doesn’t match. Let’s say that escalates immigration problems for a non-citizen and/or everything goes badly from there for an innocent person.

In my experience, for what it’s worth, the government doesn’t like to center their probable cause or articulated suspicion on edgy investigative technology. But in the course of a subjective investigation, this is the kind of “clue” that could escalate to an unreasonable Fourth Amendment intrusion.

Using pollen forensics for drug interdiction makes me think about drug detection dogs but also when the government uses enhanced technology for surveillance. On the one hand, Illinois v. Caballes, 543 U.S. 405 (2005) held that a drug‑dog sniff of a car’s exterior during a lawful traffic stop is not even a “search” and minimized a privacy interest in the aroma of a car exterior. But then in Florida v. Jardines, 569 U.S. 1 (2013) the Court held that a drug dog sniffing your front porch is a Fourth Amendment “search” because it involves a physical intrusion into the home’s curtilage for the purpose of gathering evidence. Is pollen collection a search? When would pollen collection be an intrusion assuming it doesn’t happen within the curtilage of a domicile? Is the technology going to remain slow enough that Rodriguez v. United States is protective? A prolonged stop is an unreasonable seizure unless supported by reasonable suspicion.

On the other hand, is pollen tracing more like tracking cell phone locations? In Carpenter v. United States, 585 U.S. 296 (2018) the Court found that when technology is used to chronicle of a person’s movements, courts may treat it as a full‑blown search that needs a warrant. Forensic palynology combined with genetic barcoding and geospatial databases could look more like a Carpenter scenario than a dog sniff.

I didn’t delve much further to know whether pollen forensics have come up in any federal Fourth Amendment litigation yet. Since we know ICE has pollen tracing as a tool, it is probably being used in the investigative background and especially in border zone cases. In the right case, an extra discovery inquiry might get to the bottom of these sticky facts.

Last point: Like a lot of other surveillance technology, pollen forensics could be used by private interests in nefarious ways. Unlike government actors who can get questioned in Court and are beholden to some form of accountability, there might not be many restrictions or telecommunications-style regulations on how pollen forensics could be used privately. The ball will keep bouncing as it always does. 🎬

What’s in it for criminal defense attorneys?

This is the FJC’s compiled, distilled courtroom reference and there’s lots of material pertaining to criminal cases. The new edition runs 372 pages and covers the appointment of counsel, pretrial release, criminal litigation and procedure, plea negotiations, juries, voir dire, sentencing, and so forth.

How’s that hearing going to go down?

For CJA counsel, this book is mighty handy for courtroom preparation. If hearings and trials are somewhat scripted proceedings, here’s the script for a pretrial detention/release hearing [Stage whisper: important!], Rule 11 plea colloquies, Rule 32 sentencing inquiries, waiver of counsel, Faretta examinations for self-representation, the standard voir dire and more. It is not quite a treatise so much as a working reference.

For instance, look at this instruction from p. 137 about pre-trial memoranda:

Final pretrial report: Have counsel meet and confer to make a good-faith effort to prepare a single final pretrial report, set deadline for filing it. The report should include, but is not limited to, such items as:

• a. Names and contact information of all attorneys trying the case.

• b. A concise agreed statement of the case.

• c. Separate lists of expected and possible government and defense witnesses.

• d. Lists and descriptions of exhibits from each party, asserted bases of admissibility, and whether there are objections to any items.

• e. Motions in limine and responses thereto.

• f. Proposed voir dire questions and any objections to them.

• g. Proposed jury instructions and verdict form.

So when you get orders to make a good faith effort on a joint pleading before your trial, the benchbook is where it is coming from. It is not an original fever dream about a beautiful utopia where AUSAs and defense counsel are able to agree. But actually, I did a trial with something like this. It creates another opportunity for compromise and I preferred it to trying to keep track of everything across two opposing pleadings.

What’s new in the 7th edition?

I admit I haven’t read the whole thing, but I’m told that the new Benchbook for 2026 properly reflects more than a decade of accumulated changes: the post-Rehaif plea colloquy realities, the revised 3553(a) sentencing landscape, a highly updated run down of release and detention practices, immigration related advisements like the right to consular notification, and modern voir dire questions including implicit bias.

The materials are free. Like all FJC publications, it is in the public domain. As a U.S. Government work it is not copyrighted. See 17 U.S.C. § 105. You can download it, mark it up, redistribute it to your team or feed the whole thing to a research tool. Speaking of which…

Check out the Word scripts:

Buried under the PDF link on the FJC page is a second download: “Benchbook Scripts in Word.” The FJC has released the actual colloquy scripts; there are plea, sentencing, voir dire, contempt, and the rest as editable Word documents. These are easily ingestible by AI tools. scripts. A modest investment of time can turn those Word files into a working Claude skill (or a custom GPT, gemini gem or whichever AI assistant you already use) that does some or all of the following on demand:

• Generate a client-specific Rule 11 prep memo for your client, walking through every question the client should be prepared to answer.

• Produce a tailored sentencing colloquy script and or checklist for sentencing guideline ranges, criminal history category, and supervised-release recommendations. You can spot in advance where the court has to make findings under § 3553(a) and where you may want to put an objection or comment on the record.

• Build a first draft of a client-facing plain-language version of what will probably happen in court. That could be an invaluable aid for detained clients who have limited ability time to talk to counsel on the same day as a major hearing.

If you are experimenting with AI in your practice, this is a clean, safe and authoritative way to try it, with timely information coming straight from the federal courts.

The Link where you can find the new Benchbook:

https://www.fjc.gov/content/397447/benchbook-us-district-courts-seventh-edition

To put it mildly, federal criminal defense clients have built-in disadvantages at the bargaining table. I’m pessimistic that the pending Supreme Court case U.S. v. Hunter is going to offer new leverage. That case concerns the scope and enforceabilty of appeal waivers in the USAO’s standard plea agreements.

Limited authority is an evergreen problem in criminal defense negotiation. In negotiation parlance, limited authority is when the person I’m negotiating with cannot bind the party she represents to a deal. Applied to federal criminal practice, if the line AUSA at the bargaining table has limited authority for “getting to yes” and always has to take it back to a supervisor, how am I supposed to get any traction? Are there things I can do to prepare for that inherent and predictable dynamic?

The USAO is a fundamentally a chain of command, top-down sort organization. The limited authority of line AUSAs is most definitely a design feature of the USAO’s power, not a bug or defect. I’ve found that once the supervisor says “no” that my client can really be stuck. The supervisor’s “no” is often a hard “no.” Institutionally, the USAO values consistency of process and finality more than dialogue and creative problem solving.

If that’s the situation, it might help to do the following five things in preparing for negotiation.

1. inquire about the extent of your negotiation partner’s (the line AUSA) authority;

2. develop a first round of defense-favorable concessions that are within that AUSA’s authority;

3. be forward thinking about how your negotiated settlement proposal is going to be conveyed by the AUSA at the supervisory level;

4. find out the policy rules and priorities that are likely to be applied at the supervisory level. If there are criteria you need to meet (like for charge bargaining or a particular guideline reduction) are there things you can do now show that your ask will meet the supervisor’s requirements?

5. find out if and when your settlement proposal is going up the chain to USAO management so that your best material is ready. Is there an internal deadline?

Another thing to consider is that policies change. Right now the new USAOs that came in with the current Trump administration are getting squared away with how they will run things. Now is a great time to ask about USAO supervisor policies. It is not dumb to ask because the answer might be different than the last time you inquired. 🎬

Yesterday, the USDOJ’s Office of legal policy released a slick and ghoulish 48-page guide to how it would “return to its longstanding practice of seeking and implementing capital sentences” and expand execution methods to “promptly achieve finality in death penalty cases.” This notably is to include federal firing squads.

.

The current USDOJ sees Biden’s commutation of 37 of 40 federal death sentences in December 2024 as a catastrophic failure of justice. Their new policy denounces the Garland death penalty moratorium and celebrates the thirteen executions carried out during Trump’s first term.

According to the report, the USDOJ has approved 44 federal criminal indictments seeking the death penalty since January 2025. There will be more to come.

For CJA panel attorneys, this means federal courts will be crewing up defense teams for capital-eligible cases. If you are interested in being “qualified” for capital work, start looking into it if you haven’t already. Contact the Capital Defense Network. Under 18 U.S.C. § 3599, two qualified attorneys are required in federal capital cases, with specific experience standards. As it should be, these capital cases also pay at a higher rate than the standard $177/hr.

As far as the USDOJ’s creepy and immoral death penalty plan goes, there are three essential parts. First, it recommends re-adoption of the pentobarbital lethal injection protocol used in Trump’s first term. The report rejects the Biden DOJ’s January 2025 finding that pentobarbital presented “significant uncertainty” about pain and suffering. The Eighth Amendment bars methods that “superadd” pain beyond death itself. The new USDOJ report argues pentobarbital clears that bar.

Second, it recommends expanding the federal execution protocol to include the firing squad, electrocution, and lethal gas. The report notes that five states now authorize the firing squad, and notes that the Supreme Court has never invalidated any method of execution.

Third, the report proposes to basically remove the speedbumps in the way of capital punishment and statutorily expand who the state can kill. They recommend legislation to expand the list of death-eligible federal offenses and remove whatever remaining habeas delays still exist. The report also foreshadows and encourages an aggressive revision of the USDOJ’s internal review standards for capital charges.

The recommendations undercutting the decision making of juries seems particularly offensive and unconstitutional to me. The report recommends a “try again” provision if a jury doesn’t deliver a unanimous death verdict. For now, 18 U.S.C. §§ 3593(e) and 3594 require the presiding judge to impose a sentence below capital punishment if a non-unanimous jury does not recommend death. According to the report, “this system does not align with the Department’s interest in seeking and imposing capital punishment when doing so is just and fair.” Instead, it says the USDOJ should consider supporting a legislative proposal that, in the event of a hung jury, would allow prosecutors to seek to impanel a new jury for a second penalty phase. That sounds unconstitutional.

So, this is bad news. The CJA and defender attorneys who take these appointments, build the teams, do the mitigation, and litigate cases are doing something that matters profoundly. I’m not ready for or in favor of our government to using firing squads, poison, electrocution and gas on the imprisoned. 🎬

At least three scenarios come to mind for getting BOP medical records. The list surely goes on. Next time you have a client receiving medical assistance (or being ignored) in a BOP facility, here are three things you might be able to prove up with prison/detention medical records in hand:

• sentencing mitigation

• compassionate release support under § 3582(c)(1)(A)

• trial rebuttal material that might be helpful on disproving client drug use or showing post-arraignment medical/physical condition

It takes a while for BOP to fork over medical records, but they have arrived within a reasonable time when I’ve asked. I hate it when I don’t realize I may need records until I’m under time pressure. Maybe it is a good practice to get the client to sign the release form early if there’s any conceivable reason your client might need them down the road.

So, here’s the link to the form you need to obtain BOP medical records.

Note that the form says “this authorization will automatically expire 90 days from the date of the signature.” Nothing lasts forever. Also, just like with a HIPAA compliant medical release, you have to check all the sensitive information boxes about HIV status, mental health records, etc. The form generally has to be filled out completely to execute the release. 🎬

A painful fact that jumped out of this latest iteration of the AI inaccuracy problem is that one of the attorneys was the pro hac vice guy. He had agreed to lend his good name to an out-of-district attorney (who used to work as an attorney for Jack in the Box?) who was trying to help with a family business dispute. Let me tell you, I have practiced criminal law in the most wretched and harrowing fact scenarios imaginable. Those cases are no comparison to the brutal combat and unhinged decision-making that can come up in a civil dispute over a family business. Litigator beware.

Long story short, the pro hac vice guy did not catch the AI errors before the documents were filed in federal court with his name on them. That was a mistake because the pro hac vice rule in the District of Oregon specifically says the lawyer “will meaningfully participate in the preparation and trial of the case.” The pro hac vice guy might not have even known that his out-of-town cohort was ineptly using AI to write briefs. Now he’s paying part of a 6-figure fine and rueing the day he got involved.

Which brings us around to who we decide to work with as CJA attorneys and reasonable care.

My post from earlier this week discussed non-disclosure agreements for staff, law students, bookkeepers, assistants and contractors that help with in my criminal defense practice. After reading yet another cautionary tale about sloppy AI, I revised that NDA and added a clause about how and when people who are helping me can use AI. It says:

Use of Artificial Intelligence Tools: I will not upload, input, disclose, or otherwise share any client names, identifying information, documents, or other information related to any of my work with Attorney into any artificial intelligence or machine-learning tool without Attorney’s prior express approval for that specific use and direct supervision. While Attorney may utilize enterprise-level AI subscriptions, no such tool may be used with client information except as specifically approved and overseen by Attorney in advance. Use of any personal, consumer, free, or unauthorized AI account or tool with client information is also strictly prohibited and constitutes breach of this Agreement.

You can find the revised link to my AI inclusive NDA here. It goes without saying (but I’m a lawyer so I say it) that I’m not giving you legal advice about the kind of form you use. This is just the one I will use. Ask your own counsel. Let’s be careful out there. 🎬

CJA panel work is better if teamwork is helping make the dream work. Inviting people onto my team also requires reasonable steps to ensure that any client information or work is strictly protected. With a solid NDA (non-disclosure agreement) in place, I can consider how to effectively move adminstrative, non-compensable tasks off of my criminal defense attorney plate.

My non-compensables team includes a contract legal assistant, a bookkeeper, a contract mail clerk, and some IT support (and maybe some summer help too). The team helps me stay on task at my compensable hourly rate instead of handling all the non-legal, administrative tasks myself. I tell myself that it is roughly a $150/hr mistake if I’m doing all that non-compensable work instead of delegating.

A non-disclosure agreement is a great way to set the tone of privacy with your support team from the beginning and just a good idea all the way around. You may already have your own NDA that you like to use in your criminal law practice, but if not, here’s mine. This is just what I use. I’m not your lawyer. Review with your own counsel. Customize it for your jurisdiction and needs.

I think for any NDA for a criminal law practice, the following terms should be explicitly included:

1. imposes strict confidentiality on all client-related information including online and media statements;

2. makes those duties perpetual, surviving the end of the working relationship;

3. requires prompt return or destruction of all physical and electronic materials when work ends;

4. requires permission before allowing any related material to be written and published, a proviso especially important with students.

The upshot is that a solid NDA isn’t just about CYA. It’s about unlocking the ability to delegate so you can focus on billable legal work and stay centered on advocating for clients.🎬

My post below is my take from the criminal defense perspective and a sum-up of Jonathan’s sum-up.

Also, if you are following me and care about CJA cases and federal criminal defense, you most certainly want subscribe and start tracking the work of Jonathan and his team at the Sentencing Matters Substack. Link here:

Sentencing Matters Substack

Commentary on why and how sentencing matters, from the editors of the Federal Sentencing Reporter

By DAB

The gist of what is happening (and being neglected) with prosecutors and AI:

AI tools are already being used in federal prosecutions. Police use algorithmic tools to analyze digital evidence and draft reports. Prosecutors use AI to manage discovery and support charging decisions. Courts rely on algorithmic risk assessments. These tools are influencing who gets stopped, searched, charged, detained, sentenced, supervised, or released.

These tools are being deployed without anyone really understanding how they work, what their failure modes are, or how to challenge them when they get things wrong.

Want to know what kind of tech the cops are buying?

If you go to bar association conventions or big CLE events for the criminal defense world, then you have seen all their free pens, beer koozies and little dishes of candy on display. Tech companies want to sell attorneys AI based tools for their criminal defense practice. WELL GUESS WHAT? The prosecutors and cops have vendors too. Here’s a list from an upcoming convention on the west coast. Here’s a an ad from a call for vendors for an upcoming event in Las Vegas.

This is a digression but I was just reminded of the part of Fear and Loathing in Las Vegas were Hunter S. Thompson winds up at a police conveniton in Las Vegas with his lawyer.

Onwards.

Back to algorithms and what the Stanford team found:

Most judges, prosecutors, police, and probation officers are adopting AI technologies without the technical background to assess their design or limitations. Most agencies don’t have the capacity to evaluate these tools independently. Vendors market directly to practitioners who lack the time or expertise to do meaningful evaluation.

The considerable risk is that algorithmic systems can embed and amplify bias, operate opaquely, generate unreliable outputs, and shift decision-making power in ways that are hard to monitor. The errors may be subtle but also systematic and persistent.

Why this matters for CJA practice:

You’re probably already encountering these vendor-pushed AI in federal criminal discovery, maybe filtered in through task-force work and local police. Maybe the AI adoption is generally on the rise for federal prosecution. There are Axion body camera transcripts generated by AI. Police reports are being drafted with algorithmic assistance. Risk assessment scores might soon be keyed into charging or referral decisions. Criminal discovery is increasingly managed through AI platforms. Digital evidence is being analyzed by tools that the defense might never know about.

According to Stanford’s report, even well-intentioned practitioners can’t effectively evaluate AI use cases without technical expertise. A judge might want to use a large language model to interpret complicated warrant applications but not understand how it works or the error rate. Police might use AI to process body camera footage without understanding reliability concerns.

What this means when you’re defending cases:

When the government introduces evidence or arguments based on AI-generated analysis, there are questions worth asking:

• How does this tool actually work?

• What are its known failure modes?

• Has it been independently evaluated?

• What constitutional concerns does it raise?

• How do we challenge its reliability?

Right now, there’s no centralized entity doing independent evaluation of these tools. Or standardized testing protocols. Or accessible assessments of known risks. There’s no cohesive technical assistance for agencies, sherriff’s offices, courthouse chambers or defense attorney who can’t afford AI review teams.

What the report proposes:

The Stanford team suggests creating a specialized AI governance entity like a governmental or public-interest institution with formal authority and stable funding. It would:

• Independently evaluate high-impact AI tools used in criminal justice

• Publish clear assessments of acceptable uses, known risks, and necessary safeguards

• Develop standardized benchmarks and testing protocols

• Coordinate incident reporting and auditing

• Provide technical assistance

The larger context:

AI is reconfiguring where power sits in the justice system and bringing in private actors and private technology like never before. What does that mean for the governed and surveilled?

As it stands, defense attorneys are stuck trying to challenge proprietary tools we can’t inspect, questioning outputs we can’t replicate, and cross-examining witnesses who don’t fully understand the systems they may be relying upon.

Where that leaves us:

Since AI tools are being used in federal cases now, understanding the governance gap helps clarify what we’re up against. Reliability, bias, and algorithms are something to hone in on. The AI peddlers aren’t being regulated very well at all.

The Sentencing Matters substack is worth checking out. But with no Hunter S. Thompson. 🎬

Along with acknowledging your client’s suffering comes the introspection about whether there was a flaw in your the legal advice and counsel. The arrest comes despite all you and your client worked on to stay out of handcuffs. Some other lawyers (because this is how we can be) who weren’t there and weren’t in the case put on the monday morning quarterback jerseys and speculate how they might have pushed back better.

I’ve represented hundreds of noncitizen clients and shared in the upheaval of an ICE courthouse arrest several times. I’ve been thinking lately about the noncitizen client’s dilemma as basically three bad options - usually with only one viable choice. They can flee, fight or flow. Flight is illegal. Fighting the arrest (we’re talking motions and writs) is often futile. What about flow?

Before I go on, the Los Angeles Times and the invaluable NACDL daily criminal justice briefing reported that this week in the Central District of California a noncitizen defendant was suddenly dragged out of a federal courtroom by ICE. Because today’s troubling outlier is tomorrow’s standard operating procedure, I looked up a few details. This defendant had been out on bond for many months subject to terms stipulated by the federal prosecutor. There appears to be no violation or provocation for a pretrial release violation. The quality of his counsel’s advocacy appears zealous and above reproach.

There’s an ICE directive about how they are supposed to operate with respect to courthouse arrests (spoiler: they leave their options open). The gist is “[w]hen practicable, ICE officers and agents will conduct civil immigration enforcement actions against targeted aliens discreetly to minimize their impact on court proceedings” but they absolutely have permission from on high to arrest people at courthouses.

So back to flow. If you know your client is vulnerable to attention or arrest from ICE here are a few things you can do to maybe make the arrest less horrible, even if you can’t stop it. This is non-exhaustive. Add your ideas to the comments if inspired:

• advise your client of the possibility of arrest.

• talk about safety like how to get arrested with best chance at avoiding getting roughed up or injured;

• recommend or facilitate advice from an immigration attorney;

• evaluate whether having an emergency release motion prepared is a good idea;

• get photocopies of your clients essential documents (ID, birth certificate, passport if they still have one) so you or a family member can later email it to the client. ICE is known to confiscate IDs and deport without any documents. Emailed photocopies may be better than nothing;

  

• ICE arrests aren’t entirely predictable but if you are going to have a case-terminal hearing (like sentencing) that will end pretrial supervision, you may consider whether ICE is aware and will be in court for an arrest;

• if you must assume ICE will be in court for an arrest (particularly likely where the case agent is ICE, like in an illegal reentry case) consider whether you want to talk to the USAO, the US Marshal and chambers in advance about the arrest plan;

• consider whether your client could be arrested in a way that avoids USM security processing in which arrestees get separated from property like jackets, shoelaces, belts and personal items; and

• recommend to your client that they memorize your email address so they might be in touch when they come out the other side of removal.

Sometimes arrest and removal is unavoidable so these are just some contingency ideas to plan for it. 🎬

The USSG federal sentencing guidelines are going down for a whole lot of defendants. Why should my client be the last one to be over-incarcerated under a guideline that the Commission has decided is a bad idea? I plan to immediately start applying these reforms at least three places:

1. plea negotiations

2. conversations with United States Probation Officers preparing PSRs

3. sentencing arguments

To explain whether these reductions might apply to your federal criminal matter, read on.

There is an important email that went out this week from the invaluable team at the Sentencing Resource Counsel. I can’t say it better than Max Wolson so I’m excerpting below. As far as deploying in your practice, here’s what to know:

• the United States Sentencing Commission lacked a quorum for several years and got backlogged on guideline amendments that are probably overdue and much of which are defense friendly.

• non-violent career drug offenders and anyone covered by the fraud guideline or looking at a “sophisticated means” enhancement will be especially impacted.

• Zone B of the guideline chart which helps our clients avoid prison in favor of community supervision is being substantially expanded.

• fentanyl and human trafficking guidelines are going up.

• A bunch of Specific Offense Characteristics are getting deleted outright. Take a look at the list.

If any of these reductions apply to your situation, the SRC is recommending asking for a delay of sentencing until these imminently to-be-approved guidelines are approved as expected on May 1.

If ratified, they won’t technically go into effect until the new USSG book comes out (what color will it be?) on November 1, 2026. Here’s the email excerpt, with my points of emphasis in bold. If you have a client who is:

Being sentenced under 2B1.1

Facing a sophisticated means enhancement

Being sentenced for methamphetamine offenses by a judge who would apply anything higher than the meth-mixture ratio (like, for example, the meth-actual ratio)

Who may be a career offender. Especially if they are CO based in part on a state drug prior especially especially if they got very little or no incarceration for that state drug prior

Who has a good claim of post-offense rehabilitation. Especially a person who has been on pretrial release and done programs/treatment, but potentially any client detained or not who did as much as they could given the resources (un)available to them

Who is getting an increased based on multiple counts/grouping

Who might move to a better Zone (acknowledging that zones don’t mean anything in many districts yet). Those people who might move are:

CHC I clients with OL 12-29

CHC II clients with OL 11-14

CHC III clients with OL 10-13

CHC IV clients with OL 8-11

CHC V clients with OL 7-8

CHC VI clients with OL 6-7

Who are in line for an SOC [specific offense category] aggravator that is about to be deleted due to basically never being applied

2A5.1(b)(1)

2B1.5(b)(6)

2B2.3(b)(3)

2B6.1(b)(3)

2D1.1(b)(10)

2D1.eleven(b)(5)

2D1.12(b)(4)

2D1.14(b)(1)

2G3.2(b)(1)

2G3.2(b)(2)

2H3.1(b)(2)(A) or (B)

2J1.3(b)(1)

2J1.9(b)(1)

2K2.6(b)(1)

2M4.1(b)(1)

2P1.1(b)(4)

2Q1.2(b)(5)

2Q1.3(b)(2)

2Q1.4(b)(1)(A) (B) or (C)

2Q1.4(b)(2)

2Q1.4(b)(3)

2T1.9(b)(1)

A couple of notes/reminders:

The amendment votes are in late April but the amendments don’t take effect until November 1 (assuming Congress does not reject any). However, many judges vary downward in May-October based upon a passed but not-yet-in-effect amendment.

There are some bad amendments being considered, including for human smuggling and fentanyl offenses. Due to the ex post facto and one book rules, your client gets whichever is better between the guidelines in effect on the date of their offense versus and the guidelines on the date of their sentencing. In other words, the amendments should not hurt any of your current clients. However, if your client is potentially subject to these proposed bad amendments you might consider getting out in front of them regardless particularly if you’re concerned about a judge considering negative amendments in their 3553(a) analysis.

If any of the amendments decrease guideline ranges, the Commission has the authority to vote on whether to make the same retroactive. […]

Compliments again to Max for the the comprehenisve list. 🎬

• Make me a list of everything I have to do in a federal criminal representation that is non-compensable and that I can’t bill the CJA panel for.

• Make me a list of the non-compensable tasks that I can outsource and pay someone else to do.

I don’t know about you, but other than wrestling evoucher, my number one unpaid time-suck is dealing with outgoing legal mail. I would much rather be working on the case. I also have a low frustration threshold for figuring out how to do things like print an envelope. For me, paper mail is what marketing and organizational pros call a “pain point.” Businesses that unclog the operational flow around the pain points unlock money. I am a business too and I want to unlock money. And I’d rather practice law than post letters.

While the rest of the business world has largely moved on from the daily effort of the U.S. mail, certain legal tasks are still bound to snail mail, paper forms and actual documents. Change is coming. Some jails have eliminated non-legal mail all together and are using services like Securus to digitize inmate mail. Bad actors have also been caught faking attorney mail to send contraband. A bill was even introduced in Congress to move the Federal Bureau of Prisons to a digitized mail system to cut down on fentanyl smuggling.

CJA attorneys do not win ‘em all. Some of our clients are incarcerated in prisons and jails. Often, criminal defense lawyers need to “put it in writing” to a client with an explanation of the law, procedures and sentencing exposure. Sometimes our clients are detained remotely and licking a stamp is logistically better than coordinating a jail visit. Using the mail is vital.

As a practical and ethical matter, we have to assume that every piece of mail entering a correctional facility may be intercepted, regardless of markings or legal protections. Legal mail delivery in prison is highly imperfect and our clients complain about it often. I found a long law review article about jail mail if you want to go deep. Saving strategy discussions for in-person visits or properly vetted calls, and treating written mail as a channel for administrative and logistical communication is the best practice.

But wouldn’t it be great if someone else (besides the CJA attorney) could handle the snail mail, the picky rules, the printing, the envelopes and the postage? Because the CJA panel is in fact not going to pay us to do that.

A third party or outsourcing solution has to follow at least two rules:

• Rule #1: The mail method must protect privilege and confidentiality.

• Rule #2: The mail method must comport with picky prison/jail regulations and marked “LEGAL MAIL” on the envelopes.

Email won’t cut it. Prison email systems like Securus and Corrlinks are monitored and are not secure and not suitable for attorney-client communications of any substance or sensitivity. Some attorneys do not use them at all. I have eased up in the last few years and use them to communicate about court dates and simple procedural matters but we stay off the facts.

Why Snail Mail Is Still the Only Constitutionally Protected Option

For sensitive attorney-client communication, physical mail sent directly from counsel remains the gold standard — and it’s the only method backed by Supreme Court precedent. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Court established the foundational rule governing legal mail in correctional facilities. Prison officials conceded they could not open and read mail from attorneys to inmates. The Court approved a policy allowing facilities to open legal mail only in the prisoner’s presence to inspect for contraband — but not to read it. As the Court explained:

“As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate’s presence insures that prison officials will not read the mail.”

The decision is kind of weak tea when you read it, but the Court has never retreated from Wolff in the five decades since it was decided. The rule is simple: properly marked legal mail from an attorney must be opened only in front of the inmate, not read, not copied, and not censored. No digital prison communication platform comes close to offering this protection in federal prisons. Securus, Corrlinks, JPay, etc all reserve the right to monitor content. Physical mail, properly marked and properly sent, is the only channel where Supreme Court precedent puts a barrier between legal correspondence and the eyes of the jailers, the government and the third party interests that want to digitize and monetize everything they touch.

That protection, however, only attaches when the mail is identifiable as coming from an attorney. Which brings us back to the envelope - and who is putting it in the mail.

Why the Commercial Mail Services Don’t Work for Attorney Mail

I looked into several consumer-facing services that families and third parties use to send mail to incarcerated people. There’s a promising company called TextBehind that is trying to set up secure legal mail but for now it is only available in a handful of state facilities. None of the others are suitable for attorney-client correspondence, for two reasons.

First, they all digitally scan your document before printing and mailing it. The moment your privileged communication passes through a commercial scanning platform, you have introduced a third-party data risk.

Second, and more fundamentally, (other than Text Behind) these services send regular mail from their own commercial addresses that isn’t labelled LEGAL MAIL. The facility is not going to treat that envelope as special. It won’t be opened in the prisoner’s presence. It won’t get the Wolff protections. It will go through general mail processing, which means it can be read. Everything you were trying to protect is now unprotected.

These platforms are fine for what they’re designed to do: to help friends and family send letters. They are not built for attorney mail, they generally don’t market themselves for attorney mail, and we can’t reasonably use them for attorney mail.

The Solution: A Trusted Person You Know

The answer, it turns out, is not a platform. It’s a person.

Using a non-disclosure and confidentiality agreement, I have handled jail mail through a recent college graduate who does light clerical work for me on a very as-needed basis. I also know a stay-at-home parent who is happy to make a few dollars doing this on the side and will follow the rules precisely. Neither arrangement was complicated to set-up. A straightforward NDA, a clear set of written instructions, and a brief onboarding conversation was all it took.

This is a viable work-from-home gig for someone with a decent printer. They can even charge you for the printing. In the 9th Circuit, CJA attorneys are expected to “negotiate the lowest rate possible from an outside vendor” and copies are reimbursable at a rate “not to exceed fifteen cents ($0.15) per page for black-and-white copies and twenty-five cents ($0.25) per page for color copies.” That’s in Appendix 7 of the Circuit’s CJA policies.

Your jail mail (and other mail too!) person needs to do four things:

1. Look up the regulations. Every prison and jail has its own mail rules: paper size, color, envelope type, what can and can’t be included, and how the return address must appear. Before sending anything to a new facility, your person needs to pull those individual picky regulations and confirm the mailing will be compliant for that facility.

2. Have the right materials. That means a rubber stamp marked “LEGAL MAIL” and “ONLY OPEN IN PRESENCE OF INMATE”, envelopes that meet the specific facility’s requirements, and normal black ink and paper stock that complies with the rules. Don’t use gummed or adhesive mailing labels. The return address on the envelope must identify you as the attorney of record. The envelope must be clearly marked as legal mail. Without the markings, the Wolff protections don’t attach and your mail will be treated like any other piece of general correspondence.

3. Keep a log and write down the workflow. Every mailing should be documented: which client it went to, which facility, the date it was sent, how long preparation took, the number of pages and the exact postage cost. This is where the economics of outsourcing can pay off for CJA attorneys to capture reimbursable expenses. Your assistant will also write down the workflow so if they quit or are otherwise unavailable, it is easy for the next person to read the instructions and step right in.

4. Get paid. Your mailing assistant can log their time by the minute or do it for a flat fee that you will be happy to pay to get the non-compensable administrative tasks off your desk.

Recouping your postage and copy costs.

At least for me, I am far more likely to actually capture and submit those expenses when a third party is maintaining the log than when I am relying on myself to remember to track a $1.20 stamp in the middle of managing a federal docket.

The high cost of DIY:

The next best alternative to a local outsourcing arrangement is by far the most expensive option: doing it yourself. That is what most solo CJA attorneys do. If you can build a confidential, trustworthy outsource solution for your U.S. mail and especially jail mail, you will recover hundreds of dollars in time and reimburseable expenses over the course of a year that are currently just disappearing into the administrative void.

It isn’t very hard to set up. You probably already know the right person. 🎬

Disclaimer: This isn’t legal advice. You have to look up the rules in your jurisdiction yourself and seek additional guidance as needed from a qualified attorney.

This is a curated watchlist of unusual, novel, or expansive applications of federal criminal law and the kind of cases that distinguish themselves from long-standing enforcement patterns. There’s also an interface to recommend cases you may know about that meet these criteria.

When I think federal prosecutors might be experimenting with new or creative theories, it is sometimes hard to detect the big picture. Is it new, new to my district or just new to me? Because today’s USAO outlier may become tomorrow’s standard practice, this NACDL tracker could be a great way to keep a handle on what’s going on nationally and push back where possible.

This chart is taken from the United States Sentencing Guidelines Chapter 2D1.1 subsection (c). The guidelines themselves and the offense level assigned to a particular drug weight are advisory. With narcotics cases, the statute (under 21 U.S.C. 841(b)) is more important than the guidelines. That’s where you may find mandatory minimums, which are not advisory. Federal criminal narcotics sentencing is complex. This chart is just one part of it.

For many years, the Federal Defenders of Eastern Washington and Idaho have published an indispensable Little Red Rules Book which I always carry in my briefcase. It goes with me to court, jail visits or is within reach at my desk. It’s terrific. If you want one, you can order it. The one thing that does not have is a fentanyl/fentanyl analogue chart. If you practice law in the world of federal narcotics cases these days, you know that might come in handy. Maybe we will need to add nitazenes to it soon. 😣