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August 20, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts: Currently positive-testing inmates: 426 (up from 412) Currently positive-testing staff: 357 (up from 335) Recovered inmates: 42,770 (up from 42,762) Recovered staff: 7,138 (up from 7,135)


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

Coleman II USP: 55 (unchanged)

Three Rivers FCI: 37 (up from 36)

San Diego MCC: 35 (up from 32)

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

Pollock USP: 29 (unchanged)

McCreary USP: 26 (up from 24)

Oakdale I FCI: 15 (unchanged)

System-wide testing results: Presently, BOP has 130,925 federal inmates in BOP-managed institutions and 14,4555 in community-based facilities. Today's stats: Completed tests: 119,754 (up from 119,569) Positive tests: 42,679 (up from 42,657)

Total Vaccine doses distributed: 211,794

Case Note: Defendant's inconsistent positions dooms request for compassionate release...


In U.S. v. Cosmo Fredrick Moore, 2021 WL 3666319 (D. Ariz. Aug. 18, 2021) (Tuchi, J.), the curt, though not permitted to question defendant’s religious reasons for declining the vaccine, nonetheless denies request because defendant contradicted his own professed religious belief regarding vaccines, explaining: "on May 25, 2021—nearly three months ago—Defendant was offered his first dose of the Moderna vaccine which, according to clinical tests and FDA findings, reduces his chance of contracting the virus at all by over 94 percent, and all but eliminates the chance of severe symptoms should he contract it, his co-morbidities notwithstanding. See FDA Decision Memorandum, Moderna—Feb. 25, 2021 https://www.fda.gov/media/144636/download. Defendant refused the vaccine. In his Reply, Defendant asserts that he practices a faith known as Moorish American, and “feels that, as part of his lifelong religious practice, he should not take vaccinations.” (Reply at 3.) The Court does not engage in the evaluation of whether Defendant's professed religious beliefs are sincerely held. But it finds Defendant's current assertion not credible in light of the contrary position Defendant previously took to vaccination in this litigation. In his Motion, Defendant based his argument for compassionate release on the unavailability of the vaccine and his resultant inability to protect himself from COVID-19 by receiving it:


As of May 19, 2021, Mr. Moore reports that he has not received, or been spoken to about receiving, the Covid-19 vaccine....[a]s of May 20, 2021, the Bureau of Prisons (BOP) has administered nearly all its Covid-19 [v]accines....[a]nd currently, a vaccine cannot be relied upon as the supply has been nearly used and Mr. Moore has not been advised of when he can expect to receive it.”

(Mot. at 3,5,8) (emphasis supplied.) In his Motion, then, Defendant indicated he desired and intended to take the vaccine, but its unavailability to him in prison, and a lack of assurance when it would become available justified his early release. This cannot be rectified with his later position—now that the government has demonstrated he was offered the vaccine and refused it—that he would never take the vaccine due to his religious beliefs. Defendant's current argument strikes the Court strongly as one of convenience, and the only one left now that unavailability of the vaccine no longer works. Whatever the reasons for his refusal, the Court will not allow Defendant to create an increased risk to himself—and therefore try to conjure an “extraordinary and compelling” circumstance—by declining a readily available and overwhelmingly significant preventative measure. To do so would, in the words of another district court considering this issue, “reward” a movant for prolonging the risk to himself “with a sentence reduction.” United States v. Lohmeier, 2021 WL 365773 at *2 (N.D. Ill. Feb. 3, 2021).”



Death Watch: No new fatalities have been reported. Inmate deaths remain at 244. Five of these inmates died while on home confinement. Staff deaths remain at 5.




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