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August 2, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 115 BOP facilities and 17 RRCs

Currently positive-testing inmates: 477 (up from 457) Currently positive-testing staff: 509 (down from 528) Recovered inmates currently in the BOP: 49,632 (down from 49,636) Recovered staff: 13,356 (up from 13,328)


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

Phoenix FCI: 47 (unchanged)

Chicago: 27 (unchanged)

Sheridan FCI: 26 (unchanged)

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

Central Headquarters: 52 (unchanged)

Carswell FMC: 22 (unchanged)

Houston FDC: 20 (unchanged)

System-wide testing results: Presently, BOP has 140,793 federal inmates in BOP-managed institutions and 13,759 in community-based facilities. Today's stats: Completed tests: 128,714 (up from 128,712) Positive tests: 55,362 (up from 55,360)


Total vaccine doses administered: 325,946 (up from 325,400)


Case Note: The Equal Act — reducing crack-cocaine disparity to 1:1 — is not an "extraordinary and compelling" circumstance in support of compassionate release, at least not until it becomes law,


In U.S. v. WILLIE SIMS, 2022 WL 3013111(S.D.N.Y. July 29, 2022) (Román, J.), the court held that the Equal Act — reducing crack-cocaine disparity to 1:1 — is not an "extraordinary and compelling" circumstance in support ofcompassionate release, at least not until it gets signed into law, explaining: "By his motion, Defendant advances four reasons that purportedly rise to the level of extraordinary and compelling circumstances under § 3582(c)(1)(A) that warrant a sentence reduction: ... (2) the Eliminating a Quantifiably Unjust Application of the Law Act of 2021 (the “EQUAL Act”) … Defendant correctly points out that since his incarceration, Congress introduced the EQUAL Act intending to eliminate the sentencing guideline disparities between cocaine base and powder cocaine.SeeEQUAL Act of 2021, H.R. 1693. As drafted, the EQUAL Act permits courts to “impose a reduced sentence after considering the factors set forth insection 3553(a) of title 18, United States Code” to defendants “who, on or before the date of enactment of this Act, [were] sentenced for a Federal offense” involving cocaine base.Id.§ 2(c)(2)(A). Two months after Defendant was sentenced here, the Department of Justice fully endorsed the passage of the EQUAL Act before the Senate, noting that the sentencing disparity between crack and powder cocaine undermines public trust and reduces confidence in the justice system's ability to deliver fair and equitable outcomes.See The Statement of the U.S. Department of Justice Before the Committee on the Judiciary, United States Senate, For a Hearing Entitled: Examining Federal Sentencing For Crack and Power Cocaine, at 2 (June 22, 2021) (“The disparity in federal cocaine sentencing policy has been the most visible symbol of racial unfairness in the federal justice system for almost 35 years, and it is time to eliminate it.”) available athttp://cdn.cnn.com/cnn/2021/images/06/22/equal.act.testimony-.final.pdf. In fact, the Government has sought to have judges around the country apply sentencing adjustments consistent with the EQUAL Act—including in the case of one of Defendant's co-defendants. (See United States v. Ellis, 19 Cr. 857 (02), ECF No. 242 (Government Sentencing Letter) (S.D.N.Y. Feb. 7, 2022).) To date, however, Congress has yet to enact the EQUAL Act because while the Act has passed the House of Representatives, it is still currently before the Senate for consideration. Thus, the Court finds that the considering the applicability of the EQUAL Act's proposed adjustments here is premature.See, e.g., United States v. Roper, CR12-5085 BHS, 2022 WL 251970, at *3 (W.D. Wash. Jan. 27, 2022) (declining on a § 3582(c)(2) motion to consider whether the potential sentence reduction that would result from the EQUAL Act was warranted because “the legislation has yet to be enacted”); but see United States v. Samas, 3:18-CR-00296 (JAM), 2021 WL 5996815, at *2 (D. Conn. Dec. 7, 2021) (considering the EQUAL Act's proposed adjustments when addressing the § 3553(a) factors in a § 3582(c)(1)(A) motion due to the Department of Justice's support of the proposed Act). The Court recognizes that in United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), the Second Circuit held that “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.” … Yet, Defendant fails to provide any persuasive basis as to why the Court should consider the fact that he may benefit from a sentence reduction if, and only if, the EQUAL Act is enacted as an “extraordinary and compelling” circumstance. At best, Defendant's contentions—namely, that the sentence disparity between him and his co-defendant who the Court sentenced with the EQUAL Act's proposed adjustments with the consent of the Government—seem to suggest that the Court could more appropriately consider such adjustments here when weighing in the § 3553(a) factors. … However, Defendant here asks the Court to put the cart before the horse. Indeed, were it to endorse Defendant's position that the applicability of the yet-to-be enacted EQUAL Act is an “extraordinary and compelling” circumstance, then the Court would be effectively holding that the mere possibility of a defendant receiving a benefit through proposed legislation could warrant compassionate release. Such holding would not only raise slippery slope concerns (i.e., must courts consider proposed legislation at earlier stages of the legislative process as equally extraordinary and compelling as those at a later stage?), but also justiciability concerns (i.e., considering the applicability of legislation not yet enacted).See Flast v. Cohen, 392 U.S. 83, 94 (1968)(“The jurisdiction of federal courts is defined and limited byArticle III of the Constitution[, and] the judicial power of federal courts is constitutionally restricted to ‘cases’ and ‘controversies.’ ”). In short, judges interpret the law as written, not based on their own assessment of likely future legislative action. …That said, if (and when) Congress enacts the EQUAL Act as drafted, then may Defendant move for a sentence reduction based on the Act's adjustments.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related inmate deaths. COVID-related inmate deaths remain at 302. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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