The Door Slams Shut: Supreme Court Gut-Punches Compassionate Release While Circuit Courts Upend Federal Prosecutorial Authority

A Paradigm Shift in Federal Criminal Defense

For the past several years, federal criminal defense attorneys have heavily relied on back-end, post-conviction relief to correct draconian sentences. But the Supreme Court’s spring 2026 term has decisively slammed that door shut. If there is a unifying theme to the latest wave of federal criminal jurisprudence, it is this: the Supreme Court is aggressively foreclosing collateral and equitable relief for defendants, forcing defense attorneys to shift their focus back to front-end, structural challenges.

While the High Court is tightening the procedural screws on defendants, a massive vulnerability has emerged in the circuit courts regarding the lawful appointment of U.S. Attorneys—a structural crack that every sharp defense lawyer must immediately exploit.

The End of "Time-Machine" Compassionate Release

The most consequential development for daily federal practice arrived on May 28, 2026, when the Supreme Court severely restricted the scope of compassionate release under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.

Since the First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow defendants to file their own motions for compassionate release, defense attorneys have creatively argued that a change in the law—specifically, the fact that a defendant would receive a drastically shorter sentence if sentenced today—constitutes an "extraordinary and compelling reason" for release. This was a vital lifeline for defendants serving decades-long sentences under discarded mandatory minimums.

The Supreme Court has now explicitly rejected this theory. The Court held that judges may not grant early release simply because a non-retroactive change in sentencing law would result in a shorter sentence today. Furthermore, the Court ruled that compassionate release cannot be used as a backdoor mechanism to challenge the underlying validity of a conviction.

Practice Takeaway: The era of using § 3582(c)(1)(A) to correct non-retroactive sentencing disparities is over. Practitioners must immediately pivot their compassionate release petitions back to traditional, hyper-specific grounds: severe medical deterioration, advanced age, or the death of a primary caregiver. Do not waste the court’s time—or your client's resources—arguing that the law has evolved.

Habeas Corpus Takes Another Hit: The Etan Patz Conviction

If the First Step Act ruling wasn't a clear enough signal regarding post-conviction relief, the Court’s June 22, 2026, decision reinstating the conviction in the infamous Etan Patz murder case certainly was. The Court reversed the Second Circuit and restored Pedro Hernandez’s 2017 state-court conviction.

In doing so, the Court delivered a sharp rebuke to the Second Circuit for violating the strict limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), federal courts cannot grant habeas relief to state prisoners unless the state court's adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law."

This ruling is a stark reminder to the defense bar: federal appellate courts are being put on a tight leash by the Supreme Court. Federal habeas relief is practically a dead letter unless the state court committed a wildly egregious, undeniably unconstitutional error. Novel interpretations of federal law by circuit courts will not survive Supreme Court review if they grant relief to state prisoners.

The Structural Earthquake: Unlawfully Appointed U.S. Attorneys

Because the Supreme Court has largely choked off post-conviction relief, defense attorneys must look to the very inception of a criminal case to find leverage. Fortunately, the circuit courts have just handed practitioners a massive structural weapon.

In a stunning series of rulings, the Ninth, Second, and Third Circuits have all determined that various acting or interim U.S. Attorneys were not validly serving in their roles. Most notably, the Ninth Circuit recently held that Sigal Chattah’s appointment as Nevada’s top federal prosecutor was legally defective.

This is not merely an administrative hiccup; it is a constitutional and statutory crisis for the Department of Justice. If a U.S. Attorney is unlawfully appointed, it raises profound questions about the validity of the indictments they have signed, the plea agreements they have authorized, and the wiretaps they have approved. The DOJ is acutely aware of the existential threat this poses to federal criminal administration and has urgently petitioned the Supreme Court to intervene in United States v. Jackson.

For practitioners, the strategy is obvious. Do not wait for Jackson to be resolved.

Practice Takeaway: If you are defending a client in the Second, Third, or Ninth Circuits—or any district with an interim or court-appointed U.S. Attorney—you should immediately file a motion to dismiss the indictment. Argue that the unconstitutional or statutorily defective appointment of the district's top prosecutor voids the legal authority of the office to pursue the charges. Even if the government invokes the de facto officer doctrine, preserving this structural challenge for appeal is malpractice to ignore.

Looking Ahead: The Post-Bruen Landscape and Beyond

Finally, we must note the Supreme Court's June 26, 2026, expansion of Second Amendment doctrine. Building on the framework established in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), the Court is continuing to rigorously scrutinize firearm regulations.

While often categorized as constitutional law, this is fundamentally a criminal defense issue. Federal defenders must continue aggressive, history-based challenges to 18 U.S.C. § 922(g) offenses (such as felon-in-possession). As the Supreme Court eyes even more gun cases on its docket, preserving Second Amendment challenges to federal firearms statutes remains one of the most viable avenues for pretrial dismissal.

The lesson for 2026 is clear: the back door of compassionate release and habeas is locked. You must win your case at the front door by attacking the government's structural authority and the constitutionality of the statutes they wield.