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April 6, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 92 (up from 88) Currently positive-testing staff: 141 (up from 137) Recovered inmates currently in the BOP: 53,316 (down from 53,412) Recovered staff: 12,538 (unchanged)


Institutions with the largest number of currently positive-testing inmates:

Cumberland FCI: 12 (up from 8)

Otisville FCI: 10 (unchanged)

Sheridan FCI: 9 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 135,694 federal inmates in BOP-managed institutions and 13,088 in community-based facilities. Today's stats: Completed tests: 128,802 (unchanged) Positive tests: 55,450 (unchanged)


Total vaccine doses administered: 310,079 (up from 309,859)


Case Note: Ninth Circuit hols that compassionate release is not available pre-surrender....


in U.S. v. Fower, No. 21-50007, 2022 WL 996417 (9th Cir. Apr. 4, 2022) (published) (Block, DJ from EDNY sitting by designation), the Ninth Circuit, being the first Circuit to weigh in on the issue, rules that CR is unavailable pre-surrender, explaining: "On February 10, 2020, the district court sentenced him to 24 months' imprisonment. With the government's consent, Fower was allowed to self-surrender to the Bureau of Prisons (the “BOP”). … Mindful that the statute requires a defendant to exhaust his administrative remedies before seeking redress from a district court, Fower first sought relief from the BOP: On April 28, 2020, he sent a letter to the warden of Herlong Federal Correctional Institution (“Herlong Warden”), where U.S. Marshals indicated he would be incarcerated. On April 29, 2020, he sent a letter to the BOP's Designation and Sentence Computation Center. In both letters, Fower attached medical documentation. On October 16, 2020, he sent a letter to the BOP's Regional Director for the Western Region (“Regional Director”). That letter enclosed his previous submissions to the Herlong Warden. Finally, on November 27, 2020, Fower sent a letter to the BOP's Office of General Counsel, attaching his letter and submissions to the Regional Director. He did not receive a response to any of his letters. All this time, Fower remained at liberty. On December 28, 2020, while still not in custody, Fower filed his motion for compassionate release. The district court did not agree. On January 4, 2021, it issued a brief order denying Fower's motion for three reasons: first, the court concluded that “[c]ompassionate relief is not available to a defendant not in custody;” second, Fower had not exhausted his administrative remedies, and “[e]xhaustion is a statutory requirement for the grant of relief;” … The statutory text and the history predating the enactment of the statute reveals that the district court correctly held that a convicted defendant is not entitled to seek statutory compassionate relief prior to incarceration. The structure and terminology of the statute reflects that only defendants in custody are eligible for relief. In providing that the court “may reduce the term of imprisonment ... that does not exceed the unserved portion of the original term of imprisonment,” the text presupposes that a defendant would be in custody before the unserved portion of his term can be reduced. 18 U.S.C. § 3582(c)(1)(A) (emphasis added). Plausibly, a defendant's unserved portion can only be reduced if his term of incarceration has commenced. … In Jones, 980 F.3d at 1103–04, the Sixth Circuit cogently traced the statute's history. As it aptly explained, the statute's origin traces to the Sentencing Reform Act of 1984, in which Congress abolished federal parole and forbade federal courts from modifying a term of imprisonment once it was imposed, with one exception: embracing the concept of compassionate relief, the courts could reduce a sentence when “warrant[ed]” by “extraordinary and compelling reasons[.]” 18 U.S.C. § 3582(c)(1)(A). But for the 34 years between the passage of the Sentencing Reform Act of 1984 to the passage of the First Step Act of 2018, only the Director of the BOP could initiate the requisite judicial motion. However, the Director rarely did. … “Frustrated with the BOP's conservative approach, a bipartisan coalition in Congress sought to boost grants of compassionate release by reforming § 3582(c)(1)(A)'s procedures in the First Step Act of 2018.”6 Jones, 980 F.3d at 1104. It did this by affording the defendant the right to directly seek such judicial relief, with one caveat: the BOP first had to be given the opportunity to do so; only if it failed to act within thirty days could the defendant initiate the requisite motion. … At no time in the history of the “matrix of statutory and other enactments,” id.; implicating the BOP, were the BOP's powers ever extended to grant it jurisdiction over those who had yet to commence their incarceration. To permit it to now do so would be a marked departure from the limited, although significant, broadening of the First Step Act. Moreover, it makes sense that the BOP has no place to play in the compassionate relief world prior to a prisoner's incarceration. … Fower apparently sought such relief prior to his designation to a particular BOP facility and attempted to satisfy the First Step Act's exhaustion requirement by writing to the warden of the facility to which he thought he might be designated. But until there is a formal BOP designation, it would be a matter of guesswork, as here, as to which warden should be the recipient of the compassionate relief request. Indeed, the statute states that the defendant's request must be addressed to “the warden of defendant's facility,” which cannot be known until there has been a designation by the BOP. This is further evidence that the statute contemplates that the defendant must be in a BOP facility before qualifying for compassionate relief. … Our holding does not mean that a district court is powerless to provide a semblance of compassionate relief in the normal exercise of its broad discretion. If the circumstances warrant, a district court may delay the imposition of sentence or extend the time to surrender to the BOP, as the district court did in this case.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the fatality announced yesterday as Marvin Hersch, 82, of FCI Butner Medium. The number of inmate-related COVID deaths remains at 292. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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