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BOP COVID-19 UPDATE -- March 19, 2021

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Quick Facts:

Currently positive-testing inmates: 514 (up from 486)

Currently positive-testing staff: 1,370 (down from 1,374)

Recovered inmates: 47,094 (down(?) from 47,127)

Recovered staff: 5,283 (up from 5,274)

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

Florence (High) USP: 49 (up from 46)

Florence FCI: 32 (unchanged)

Beaumont USP: 33 (up from 30)

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

Pollock USP: 84 (unchanged)

Tucson USP: 69 (unchanged)

Talladega FCI: 46 (unchanged)

(the above numbers have barely changed in more than two weeks and therefore are deemed unreliable)

System-wide testing results: Presently, BOP has 125,512 federal inmates in BOP-managed institutions and 13,800 in community-based facilities. Today's stats:

Completed tests: 107,724 (up from 107,518)

Positive tests: 46,799 (down(?) from 46,802)

Case Note: The court can appoint CJA counsel to rep defendant in § 3582 application but can't pay her....

In U.S. v. RAYMOND J. McCARVEY, 2021 WL 1017246 (S.D. Ill. Mar. 17, 2021) (Dugan, J.), the court found the Government has standing to oppose a motion to appointment CJA counsel, and then held that the court may appoint CJA counsel to bring a § 3582 motion but can't pay her: "On January 5, 2021, Assistant Federal Defender Melissa A. Day entered her appearance on behalf of Defendant (Doc. 51) and filed her Motion to Withdraw (Doc. 52). Attorney Day asks the Court to appoint a CJA panel attorney to represent Defendant upon her withdrawal and termination as counsel. The United States of America filed a response (Doc. 53) to Attorney Day's Motion, objecting to the further appointment of a CJA panel attorney to represent Defendant upon the Federal Public Defender's withdrawal. … [T]he district court's discretion to appoint counsel for defendants pursuing relief under Section 3582(c) is equally clear. See Blake, 986 F.3d at 756 (“District judges have discretion to recruit and sometimes appoint counsel for prisoners seeking post-judgment benefits, but prisoners do not have a constitutional or statutory entitlement to appointed counsel.”) … Although the Court's discretion to appoint counsel under the CJA is clear, the Court must still determine whether its discretion to appoint counsel under the CJA includes authority to authorize the subsequent payment of the appointed attorney. The Government insists that if the Court has discretion to appoint counsel under the CJA for prisoners seeking compassionate release (which the Government does not concede), then the Court lacks the authority to pay such attorney, and any appointments must be done on a pro bono basis. The Government also argues that the appointment of the Federal Public Defender for compassionate release matters is similarly inappropriate because the Federal Public Defender's salaries are paid from the “public fisc.” … Preliminarily, the Court must first address the Government's standing here. The Federal Public Defender argues that the Government has no real interest in the appointment of counsel for the Defendant, and therefore lacks standing to question any resulting appointment. The Court disagrees. The Government is charged with safeguarding the expenditure of government funds, and the CJA Guidelines advise that “the prosecution and other interested entities” may present arguments to the Court concerning a person's eligibility for the appointment of counsel under the CJA. See 7A Guide to Judiciary Policy § 210.40.20(g) (Feb. 25, 2021). … Turning now to the issue of compensation. While the Court has discretion to appoint counsel for Defendant pursuing relief under § 3582(c), the Seventh Circuit has instructed that such appointments should not be paid. Foster, 553 F.3d at 888 (Finding that the court's discretion to appoint counsel under Section (a)(2) of the CJA does not apply to motions under § 3582(c), and as such prisoners seeking sentence reductions “do not receive counsel at public expense.”) … Accordingly, the current precedent in this Circuit prohibits the compensation of CJA panel attorneys appointed for defendants seeking compassionate release under 18 U.S.C. § 3582(c)(1). As the Federal Public Defender volunteered to provide services to Defendant and consented to take this case, this appointment was appropriate. However, upon the FPD's withdrawal from this matter, the Court will not subsequently appoint a paid CJA attorney for Defendant.”

Death Watch: The BOP reports no new COVID-19-related deaths. Inmate deaths remain at 226. Four of these inmates died while on home confinement. Staff fatalities remain at 4.

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