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December 15, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 81 BOP facilities and 11 RRCs

Currently positive-testing inmates: 155 (down from 179) Currently positive-testing staff: 188 (up from 183) Recovered inmates currently in the BOP: 47,532 (down from 47,537) Recovered staff: 14,691 (unchanged)


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

Dublin FCI: 21 (up from 20)

Carswell FMC: 15 (up from 13)

Florence ADMAX USP: 8


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

Central Office HQ: 58 (unchanged)

Pekin FCI: 11 (up from 9)

Brooklyn MDC: 7 (unchanged)


System-wide testing results: Presently, BOP has 145,192 federal inmates in BOP-managed institutions and 13,967 in community-based facilities. Today's stats: Completed tests: 128,665 (unchanged) Positive tests: 55,313 (unchanged)


Total vaccine doses administered: 342,310 (up from 342,237)


Case Note: Two times the charm...


In U.S. v. JACK PERSHING SEXTON, Defendant., No. CR11-383-RSL, 2022 WL 17535711 (W.D. Wash. Dec. 8, 2022) (Lasnick, J.), although the court denied defendant’s first motion for compassionate release based on § 3553(a) factors, even though it found that an attack on defendant and his subsequent injuries were extraordinary and compelling, court thereafter granted second motion based on worsening of defendant's situation and his rehab, explaining: "Defendant's renewed motion for compassionate release relies on the Court's conclusion in the First Order that defendant had successfully shown “extraordinary and compelling” circumstances and does not re-argue that determination. See Dkt. # 262 at 1-2. In the First Order, the Court concluded that “defendant has established that extraordinary and compelling circumstances exist based on the attack and traumatic injury he suffered during his incarceration [— fn: In 2015, defendant was attacked by another inmate who struck defendant in the head with a lock in a sock, which resulted in multiple skull fractures and a cerebral hemorrhage. Defendant underwent surgery, which involved replacing a portion of the bone with plates and screws. —] the aftermath of that attack [— fn: While defendant's condition had improved substantially between his injury and the First Order, the Court found that defendant's medical records reflected that he continued to suffer from “peripheral neuropathy” (i.e., muscle weakness and atrophy, pain, and numbness) due to his injury, as well as “left hemiplegia” (i.e., total or partial paralysis of one side of the body), and that, consistent with these health concerns, he had problems with balance and strength on the left side of his body, and he needed to use something to help him balance. —] his age, and his present medical conditions. The government asks the Court to revisit its determination that defendant's circumstances are extraordinary and compelling. The government argues, “As the Warden explained and as shown in Sexton's medical records, Sexton's medical conditions have improved since this Court denied his first motion. … The Court declines the government's invitation to revisit its earlier conclusion that defendant has successfully shown “extraordinary and compelling” circumstances. While the Warden's denial does not explain in what way defendant's health has improved over the past year, Dkt. # 262-2 at 5, defendant's medical records show that he underwent cataract surgery to improve vision in his left eye in September 2021 and left-hand surgery to address a “Dupuytren's contracture5 in November 2021. Dkt. # 264-1 at 33-34. The Court did not consider defendant's cataract or Dupuytren's contracture in the First Order. … Defendant's most recent medical records also report that he continues to rely on a four-wheeled walker and to suffer from osteoarthritis of the hip and knee, Paget's disease, and spondylosis.7 Id. at 1-2. In short, it appears that while defendant has received “essential treatment interventions to address his chronic conditions,” Dkts. # 262 at 9, # 262-7 at 1, the conditions that the Court considered in the First Order remain unabated. Additionally, the Warden's denial indicates that defendant's request was reviewed under BOP Program Statement 5050.50. This Program Statement sets a significantly higher bar for compassionate release than the non-binding Application Note to U.S.S.G. § 1B1.13 and the discretion afforded to the Court under 18 U.S.C. § 3582(c). The Court adopts its prior conclusion that defendant has successfully shown “extraordinary and compelling” circumstances. Prior to granting compassionate release, the Court must assess whether a sentence reduction would be consistent with any applicable sentencing factors set forth in 18 U.S.C. § 3553(a). … In the First Order, the Court concluded that the nature and circumstances of the offense and defendant's history and characteristics weighed against releasing defendant or reducing defendant's sentence. See Dkt. # 260 at 9-10. The offenses for which defendant is currently imprisoned are extremely serious, he committed them at the age of 64, and they had a devastating impact on the victims. .. However, the Supreme Court has instructed that evidence of post-sentencing rehabilitation may be highly relevant to several of the § 3553(a) factors including, in particular, “the history and characteristics of the defendant.” … Furthermore, the Court notes that evidence of defendant's positive behavior in prison is especially compelling where defendant is facing a life sentence, or – as here – has no reasonable expectation of release. … In response to the Court's request in its First Order, defendant has submitted new evidence going to his post-sentencing history and characteristics in the form of letters and interviews of support highlighting his prosocial behavior at MCFP Springfield. These new attestations support a reconsideration of the applicable § 3553(a) factors, and the Court finds that they tip the scales in defendant's favor. … Finally, the Court notes that several of the letters submitted by BOP nurses and fellow inmates reflect the belief that defendant no longer poses a threat to the public. See, e.g., Dkt. # 262-4 at 6 (retired BOP nurse stating, “Given [defendant's] advanced age...his release from prison would not be detrimental to society. Given the chance, he could be a productive member of society.”); Dkt. # 264-1 at 3 (L.W. stating “[defendant] is not a threat to society”). The Court acknowledges defendant's history of absconding from halfway houses and poor behavior while on supervised release. Nonetheless, the Supreme Court has directed courts to consider evidence of post-sentencing rehabilitation in analyzing the need for the sentence imposed to deter criminal conduct and protect the public from further crimes of the defendant. See Pepper, 562 U.S. at 491 (citing 18 U.S.C. § 3553(a)(2)). The Court therefore finds that given defendant's post-sentencing rehabilitation, this factor weighs in favor of compassionate release. … Considering defendant's extraordinary and compelling circumstances and the applicable sentencing factors set forward in 18 U.S.C. § 3553(a) in light of defendant's new evidence, the Court concludes that defendant has established that a reduction of his sentence of imprisonment is appropriate. If the Court determines that a reduction in sentence is appropriate, the Court may “impose a term of...supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment.” 18 U.S.C. § 3582(c)(1)(A). Pursuant to this authority, the Court reduces defendant's term of imprisonment to time served and imposes a term of supervised release to run for five years from the date of his release. In issuing this Order, the Court is putting a great deal of faith in defendant, and the Court reminds defendant that it will not hesitate to revoke his supervised release and return him to prison if need be.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) No new deaths within the BOP have been announced, leaving the reported inmate death toll at 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.


Job Posting: The Equitable Justice Network, a 501(c)(3) charitable organization, is looking for an executive director. Details here. In short, the Equitable Justice Network (EJN) focuses on essential Criminal Justice Reform efforts in the specific areas of; clemency and compassionate release, humanitarian advocacy efforts (medical advocacy) and legislative advocacy (Federal and State); exit ramps from prison. The Executive Director will have overall strategic and operational responsibility for EJN’s staff, programs, development/fundraising, expansion, and execution of its mission. Any interested applicants can reach out to aviva@aleph-institute.org.

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