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BOP COVID-19 UPDATE -- May 5, 2021

Updated: May 6, 2021

Quick Facts:

Currently positive-testing inmates: 126 (down from 148)

Currently positive-testing staff: 164 (up from 161)

Recovered inmates: 46,277 (down from 46,290)

Recovered staff: 6,749 (up from 6,745)

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

Otisville FCI: 28 (unchanged)

Oakdale FCI: 9

San Diego MCC: 7

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

Petersburg Low FCI: 14 (unchanged)

Pekin FCI: 7 (unchanged)

Central Office Headquarters: 7

System-wide testing results: Presently, BOP has 127,760 federal inmates in BOP-managed institutions and 13,589 in community-based facilities. Today's stats:

Completed tests: 112,177 (up from 112,045)

Positive tests: 45,688 (down from 45,714)

Case Note: 7th Cir. provides detailed critique of district court's inadequate consideration of defendant's evidence in support of compassionate release...

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID L. NEWTON, 2021 WL 1747898, at *2 (7th Cir. May 4, 2021) (published) (Ripple, J.) (A lower cannot make blanket statements without authority, especially during an evolving pandemic: "The district court included two footnotes: one to a CDC website with a list of conditions that place individuals at risk of severe illness from COVID-19, and the other to a BOP website with information on coronavirus cases in BOP facilities. As the quoted portion of the opinion shows, the district court's merits analysis included a single citation to the record. … The district court first denied the petition because it believed that, according to CDC guidance, each of Mr. Newton's medical conditions only “might” increase the risk posed by COVID-19. We think that the district court required the word “might” to do too much work. Assessing the effect of comorbidities necessarily involves an estimation of probabilities, not certainties, and, in the case of a novel disease, we cannot expect more from the medical profession. The CDC necessarily must deal with the present state of scientific knowledge and the courts must apply the statutory criteria in light of that reality. We cannot demand certainty where there is no certainty. We also believe that the district court should have assessed Mr. Newton's situation not only in light of each of his comorbidities individually but also cumulatively. The CDC guidance that the district court relied on refers only to the risk posed by individual conditions, not combinations of conditions. We think it quite appropriate for district courts to look to the CDC guidance as a reliable source of our country's best understanding about COVID-19. At the same time, district courts must be cautious not to stretch that guidance beyond what it says. When the district court relied on CDC guidance about individual conditions to deny Mr. Newton's contention regarding his combined conditions, the court took too great of an inferential leap. … At a minimum, however, the district court's analysis must give us reasonable assurance that it at least considered the prisoner's principal arguments. Accord United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). Here, the district court's treatment of Mr. Newton's motion gives us no assurance that the court gave his combination of conditions any focused consideration. … The district court also observed that Mr. Newton fell ill with COVID-19 and “recovered.” This observation gives us pause. To begin, the district court simply noted Mr. Newton's prior infection and then moved on. The court never explained what probative value that fact presented. The bare nature of the reference matters because the Government took no position on the impact of Mr. Newton's having previously contracted COVID-19. Thus, we are not even able to assume that the district court was adopting the Government's position because the Government took no position. We are left to guess at how the district court weighed Mr. Newton's prior infection. … [I]t appears likely that the district court drew medical conclusions about the ramifications of a future infection without any supporting medical evidence in the record. In other contexts, we have cautioned that “[c]ommon sense can mislead; lay intuitions about medical phenomena are often wrong.” Cf. Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990). We think that same prudence applies to compassionate release motions involving a novel virus. District courts must base factual conclusions on record evidence; they cannot render unsupported medical opinions. Here, it appears the district court not only made an unsupported medical judgment, it overlooked the available medical evidence—notes from Mr. Newton's physician—stating that even after Mr. Newton's infection subsided, he nonetheless continued to suffer from a number of serious symptoms…. The district court's final rationale was that because FCI Seagoville had relatively few active cases at the time, Mr. Newton would not “face a significantly reduced risk from COVID-19 in the general population than he would in prison.”7 This methodology was flawed; it relied on both an illusory comparison and the wrong comparison. We say illusory because the term “general population” is hardly self-defining. And in any event, the “general population” is the wrong comparison because Mr. Newton proposed a detailed post-release plan for risk mitigation that placed him with either his grandmother or father, locations that he argues materially differ from the “general population.” In either location, Mr. Newton explained that he would live with only two other people. Mr. Newton therefore adhered to our requirement that petitioners seeking compassionate release submit individualized evidence rather than make generalized arguments about risk.8 See Joiner, 988 F.3d at 996. A district court, in turn, must consider that individualized evidence.”)

Death Watch: The BOP has identified the fatality reported yesterday as Paul F. Archambault, Sr., 83, FMC Devens. The inmate death remains at 234. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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