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August 10, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts: Currently positive-testing inmates: 344 (up from 310) Currently positive-testing staff: 251 (up from 233) Recovered inmates: 42,942 (up from 42,907) Recovered staff: 7,067 (up from 7,061) Institutions with the largest number of currently positive-testing inmates:

McCreary USP: 56 (unchanged)

Berlin FCI: 29

Texarcana FCI: 27 (up from 25)

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

Pollock: 26 (up from 22)

Oakdale I FCI: 13 (unchanged)

Coleman II USP: 9 (unchanged)

System-wide testing results: Presently, BOP has 130,494 federal inmates in BOP-managed institutions and 14,417 in community-based facilities. Today's stats: Completed tests: 119,074 (up from 118,936) Positive tests: 42,746 (up from 42,671)

Total Vaccine doses distributed: 208,805

Case Note: Medical reasons for release found to be administratively exhausted, even though not fleshed out in defendant's request to Warden, because Warden has access to defendant's medical records...


In U.S. v. WALTER SHERROD, 2021 WL 3473236 (E.D. Mich. Aug. 6, 2021) (Tarnow, J.), Judge Tarnow, for his 31st grant of compassionate release, finds remedies exhausted where defendant references medical conditions because the BOP has access to his medical records, and the conditions of confinement during covid together with the new risks posed by Delta, enhanced in WV where vaccinations rates are lagging, warrant release: "On September 11, 2019, Walter Sherrod pleaded guilty to three counts of Possession with Intent to Distribute a Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), and one count of Possession of Firearms in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A). (ECF No. 20, PageID.51). He was sentenced to eight years in prison on December 12, 2019. … Sherrod made an administrative request for compassionate release on April 13, 2021. (ECF No. 32-3, PageID.130). The request reached F.J. Bowers, the Warden of FCI Morgantown, on April 27, 2021, and was denied on May 10, 2021. (Id. at 129). Ordinarily, this would mean that Sherrod had exhausted. See Alam, 960 F.3d at 832. The Government argues, however, that § 3582(c)(1)(A) requires issue-specific exhaustion and that Sherrod's administrative request failed to raise the specific issues he now argues qualify as extraordinary and compelling circumstances. (ECF No. 33, PageID.178). … Even if issue exhaustion were required, however, Sherrod's request would still suffice. In writing to Warden Bowers, Sherrod cited his “medical history and condition” as well as COVID-19. (ECF No. 32-3, PageID.130). His Motion [28] cites the same issues, albeit with more detail. (ECF No. 28, PageID.98; ECF No. 32, PageID.110). Because Sherrod's specific medical conditions are detailed in his BOP records, there can be no question that Warden Bowers was able to consider them in denying his request for compassionate release. (ECF No. 32-4, PageID.132-33). Accordingly, Sherrod has satisfied § 3582(c)(1)(A)’s exhaustion requirement. … Sherrod, who remained on bond following his sentencing, self-surrendered two weeks earlier than he needed to, on February 26, 2020. (ECF No. 26; ECF No. 34-10, PageID.324). Due to COVID-19, however, Sherrod was not placed at his designated facility, FCI Morgantown, until nearly a year later. (Id. at 323). During this extended waiting period, Sherrod was warehoused at FCI Milan without access to the programs in which the Court intended him to participate and was subject to far more restrictive conditions of confinement than would normally have been the case. … In addition, Sherrod recounted during the hearing how he was placed in solitary confinement on more than one occasion, sometimes for as long as seventeen days, as a means of quarantine. That Sherrod was subject to such extreme measures, particularly when imposed for administrative convenience rather than punishment, is disturbing.See United States v. Bowlson, No. 01-cr-80834-1, 2021 U.S. Dist. LEXIS 119868, at *8 (E.D. Mich. June 28, 2021) (discussing the debilitating effect of solitary confinement on mental health and noting that the United Nations has classified prolonged solitary confinement as a form of torture). Although these extraordinarily punitive conditions might, by themselves, be insufficient to justify compassionate release, the Court finds that they support a finding of extraordinary compelling circumstances when viewed alongside Sherrod's heightened susceptibility to severe illness from COVID-19. …Over the last several weeks, in particular, there have been disturbing examples of people becoming infected with and spreading the so-called “Delta” variant, despite being vaccinated. See Apoorva Mandavilli, C.D.C. Internal Report Calls Delta Variant as Contagious as Chickenpox, N.Y. TIMES (July 30, 2021), https://www.nytimes.com/2021/07/30/health/covid-cdc-delta-masks.html [https://perma.cc/9WMP-Q5WF] (“The Delta variant is much more contagious, more likely to break through protections afforded by the vaccines and may cause more severe disease than all other known versions of the virus, according to an internal presentation circulated within the [CDC]”...The immediate next step for the agency is to ‘acknowledge the war has changed,’ the document said....The amount of virus in a person infected with Delta is a thousandfold more than what is seen in people infected with the original version of the virus, according to one recent study.” … In addition, recent research reflects that 1) breakthrough infections are becoming more and more frequent, 2) a significant number of breakthrough infections may lead to so-called “long COVID,” and 3) people like Sherrod who have underlying conditions and reside in congregate settings are at highest risk for severe illness, despite vaccination. … Only thirty-nine percent of West Virginia residents are fully vaccinated, and reported COVID-19 cases in Monongalia County, where FCI Morgantown is located, have more than doubled over the past two weeks. Id. Particularly considering that post-vaccination infections are often asymptomatic, and that the BOP still does not perform regular, universal testing, the fact that FCI Morgantown is currently reporting only two active infections does not persuade the Court that infection rates are low. … At the end of the day, district judges are not epidemiologists. All we can do is listen to the experts and evaluate the risks as best we can from the guidance available. It is this Court's understanding that although COVID-19 vaccines have proven to be very effective in preventing the most severe forms of the disease, the pandemic is far from over, and the risk to vulnerable individuals, even those who have been vaccinated, is not negligible. The Court is not willing to take that risk. Accordingly, the Court finds that despite vaccination, Sherrod's heightened susceptibility to severe illness from COVID-19, in combination with the fact that the entirety of his time in BOP custody has been more punitive and less rehabilitative than the Court intended, satisfies the extraordinary and compelling reasons requirement of § 3582(c)(1)(A)(i).”

Death Watch: The BOP has identified no new COVID-19 fatalities. Inmate fatalities remain at 242. Five of these inmates died while on home confinement. Staff fatalities remain at 4.



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