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BOP COVID-19 UPDATE -- March 9, 2021

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Quick Facts:

Currently positive-testing inmates: 674 (down from 783)

Currently positive-testing staff: 1,559 (down from 1,569)

Recovered inmates: 47,100 (up from 46,983)

Recovered staff: 4,984 (up from 4,963)

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

Schuykill FCI: 80 (up from 76)

Manchester FCI: 35 (down from 36)

Atlanta USP: 33

Institutions with the largest number of currently positive-testing staff: (Note: BOP has not changed the following stats for more than two weeks and their reliability therefore is suspect)

Pollock USP: 83 (unchanged)

Tucson USP: 69 (unchanged)

Talladega FCI: 46 (unchanged)

System-wide testing results: Presently, BOP has 124,734federal inmates in BOP-managed institutions and 13,637 in community-based facilities. Today's stats:

Completed tests: 106,499 (up from 106,389)

Positive tests: 46,948 (up from 46,938)

Case Note: Compassionate release invoked to save a defendant from a lengthy sentence mandated by a sting encouraging unsophisticated defendants to rob fictitious drug stash houses of fictitious drugs or money.

In U.S. v. TRACY L. CONLEY, Defendant., No. 11 CR 0779-6, 2021 WL 825669 (N.D. Ill. Mar. 4, 2021) (Coleman, J.), another watershed decision, the court found the Government’s sting operation targeting unsophisticated defendants to be an extraordinary and compelling circumstance: "Conley's prosecution and conviction were the result of a former practice used by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) of engaging in sting operations where undercover agents provided individuals with the opportunity to rob drug stash houses that did not exist. The ATF's practice involved enticing individuals, most of whom were impoverished racial minorities, into conspiring to rob fictitious stash houses of fictitious drugs or money operated by fictitious drug dealers. … On October 19, 2015, the Court sentenced Conley to 120 months in prison for counts 1, 2, and 5 to run concurrently and 60 months for count 3 to run consecutively for a total of 180 months in prison. The Court's sentence was based, in part, on a 'fictious' quantity of drugs in this false stash house case, which resulted in mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)(ii)(II). … In November 2017, Conley lost on direct appeal. The Seventh Circuit nonetheless articulated the following:

  • 'We conclude with a word about the district court's articulated dismay with the prosecution of this stash house case. In its order, the district court questioned “the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution.” At sentencing the court stated that Conley's sentence was “devoid of [ ] true fairness...and will serve no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had.” Specifically, the district court was dismayed that it was forced into a minimum sentence based on the government's ability to control the sentence by manipulating the amount and type of drugs that were “in” the fictitious stash house.'

Conley, 875 F.3d at 402. … Now that district courts can examine different extraordinary and compelling reasons for compassionate release other than those set forth in the comments of U.S.S.G. § 1B1.13, several federal courts have considered sentencing disparities, changes in the law, and the injustice of lengthy sentences when granting compassionate release motions. … The Court thus turns to the inherent unfairness and injustice of Conley's sentence[.] … As mentioned, the Court sentenced Conley to 180 months in prison because the Court's hands were tied by the fake drug amount, namely, fifty kilograms of cocaine, that the government arbitrarily decided was in the fake stash house, along with a fictious guard, who happened to be armed. … Conley found himself ensnared in the ATF's scheme, not because he sought to rob a stash house or commit a crime, but because he did not have money to purchase gas for his trip home from his legitimate job and happened to run into Adams. In sum, out of the seven co-defendants, Conley was the next to least culpable, yet received the longest prison sentence by double based on outrageous and disreputable law enforcement tactics, followed by the prosecution's relentless pursuit of the sentence despite the rebuke of these cases across the country. … If there ever was a situation where compassionate release was warranted based on the injustice and unfairness of a prosecution and resultant sentence, this is it. … Conley serving the remainder of his fifteen-year federal sentence will do little to generally deter criminal conduct because the government no longer engages in the “tawdry” and “disreputable” practice of false stash house prosecutions—due to public outrage and judicial criticism. It is only reasonable to conclude that the public is not served by Conley's continued incarceration based on a disavowed practice.”

Death Watch: The BOP reports no new deaths. Inmate deaths remain at 225. Four of these inmates died while on home confinement. Staff fatalities remain at 4.

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