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August 9, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 310 (up from 280) Currently positive-testing staff: 233 (up from 225) Recovered inmates: 42,907 (down from 42,997) Recovered staff: 7,061 (up from 7,050) Institutions with the largest number of currently positive-testing inmates:

McCreary USP: 56 (up from 54)

Texarcana FCI: 25 (unchanged)

Miami FDC: 25 (unchanged)

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

Pollock: 22 (up from 21)

Oakdale I FCI: 13 (up from 10)

Coleman II USP: 9 (down from 11)

System-wide testing results: Presently, BOP has 130,326 federal inmates in BOP-managed institutions and 14,417 in community-based facilities. Today's stats: Completed tests: 118,936 (up from 118,847) Positive tests: 42,671 (down from 42,706)

Total Vaccine doses distributed: 208,690

Case Note: Plea agreement waivers of compassionate release motions...


In a recent post in the U. of Chicago Law Review Online Ellen A. Wiencek, Articles Editor of The University of Chicago Law Review, comments on the May 2021 decision of Judge Charles Breyer of the United States District Court for the Northern District of California in United States v. Osorto (2020), finding unconscionable and therefore rejecting a plea agreement that included a waiver of the right to bring a compassionate release motion. Wiencek observes that waivers in plea agreements have traditionally been broadly accepted and notes the general rule is that no one right is considered more or less important than another, so why should one waiver be enforced but another not. However, she observes, Judge Breyer, in rejecting the CR waiver clause, noted that it frustrates Congressional intent to deny guilty-pleading defendants the right to move for compassionate release; given that more than 90% of federal cases end with a plea agreement, and of those 67% include waivers. But the solution, she says, is likely not case law but rather executive or Congressional action; she points out, for example, that the carve-out from the waiver provisions for claims of ineffectiveness of counsel derives from the October 2014, memorandum to federal prosecutors by Deputy Attorney General James Cole, declaring that plea agreements should no longer require defendants to waive future claims of ineffective assistance of counsel. Likewise, the Justice Department should declare that plea agreements should not require defendants to waive their right to move for compassionate release, or Congress should legislate a similar rule.

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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