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December 29, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 89 BOP facilities and 9 RRCs

Currently positive-testing inmates: 249 (down from 250) Currently positive-testing staff: 206 (up from 204) Recovered inmates currently in the BOP: 47,188 (down from 47,224) Recovered staff: 14,747 (up from 14,746)


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

Pollock USP: 50 (down from 51)

Danbury FCI: 48 (down from 54)

Lexington FMC: 11 (down from 12)


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

Central Office HQ: 57 (unchanged)

Brooklyn MDC: 11 (unchanged)

Pekin FCI: 11 (unchanged)


System-wide testing results: Presently, BOP has 145,224 federal inmates in BOP-managed institutions and 13,828 in community-based facilities. Today's stats: Completed tests: 128,668 (unchanged) Positive tests: 55,316 (unchanged)


Total vaccine doses administered: 343,883 (up from 343,770)


Case Note: Compassionate release granted because BOP not adequately treating inmate's substantial medical problems...


In U.S. v. Eng, No. 219CR20164TGBEAS1, 2022 WL 17853361 (E.D. Mich. Dec. 22, 2022) (Berg), the court granted compassionate release to defendant with several medical problems no properly addressed by BOP, explaining, "Defendant Michael English (“English”), an inmate incarcerated at FCI Butner, moves for compassionate release, citing his health concerns including hypertension, hyperparathyroidism, ischemia, cardiomegaly, and tumors throughout his body. Defendant's Motion for CompassionateRelease, ECF No. 66, PageID.467. English contends that these conditions require immediate medical care outside of the federal Bureau of Prisons (“BOP”), which has mismanaged and delayed his access to timely treatment. Defendant's Second Supplemental Update, ECF No. 79, PageID.1658–59. The Government responds that English's proper remedy is to file a separate lawsuit claiming a violation of his Eighth Amendment right against deliberate indifference in the healthcare he is receiving. But for the reasons explained below the Court concludes that compassionaterelease is warranted. For the reasons that follow, English's motion for compassionaterelease is GRANTED....


[O]n June 17, 2022, English filed the present motion for compassionate release.2 English summarized that between March and May 2022, he was diagnosed with several tumors in his lower back, chest, and on the sphenoid bone behind his eye. ECF No. 66, PageID.470–71. The most concerning tumor, the one behind English's eye, was described as an “irregular mass” that required follow-up from a neurosurgeon. Id. at PageID.471.


As detailed in a report by Dr. Raymond Weitzman, a medical expert retained by English to support his compassionate release motion, the tumor on English's sphenoid bone placed him at risk of sensory loss, blindness, life threatening stroke and paralysis, altered mental state, and death. Weitzman Report (June 9, 2022), ECF No. 66, PageID.484. Moreover, given the uncertainty of the origin or pathology of the mass, Dr. Weitzman advised “immediate and complex medical care that can only be rendered by a team of physicians with experience in treating neoplasms involving the base of the brain and the resultant complications that may arise.” Id. at PageID.484–85. Dr. Weitzman ultimately concluded that English “needs highly specialized care to address this tumor without delay.” Id. at PageID.485.


Approximately one month after the sphenoid bone tumor was discovered, on June 27, 2022, English had an initial consult with a neurosurgeon at the Tisch Brain Tumor Center at Duke University. Government's Response in Opposition to Compassionate Release, ECF No. 68, PageID.493. In accordance with the neurosurgeon's orders, English received a CT scan of his neck and was referred to Duke ENT specialists for further evaluation. Id. But by late July 2022—two months after the sphenoid bone tumor was discovered—the Government conceded that BOP had still not provided English with “a final diagnosis and treatment plan.” Id.


[detailing additional medical history]


[Exhaustion]. [W]hile the Sixth Circuit has held that the exhaustion requirement in § 3582(c)(1)(A) is mandatory, Alam, 960 F.3d at 833, it has yet to address whether this requirement includes issue exhaustion. But several courts in this district have concluded that § 3582(c)(1)(A) does not require issue exhaustion. See United States v. Ferguson, 536 F. Supp. 3d 139, 142 (E.D. Mich. 2021); United States v. Williams, 473 F. Supp. 3d 772, 775 (E.D. Mich. 2020) (noting that issue exhaustion “is not mandated in any plain terms of the statute”).


“And even if imposing an issue exhaustion requirement may be appropriate where the defendant files an administrative request on one ground and then brings a motion on an unrelated ground, ... that is not the type of case here.” Ferguson, 539 F. Supp. 3d at 143 (citation omitted). Instead, on May 23, 2022, English described medical conditions he felt were extraordinary and compelling in his first administrative request, explicitly listing hypertension, hyperparathyroidism, cardiomegaly, ischemia, shortness of breath, nodules in his chest and lower back, and chest pain. ECF No. 66, PageID.478. English now relies on those same circumstances in addition to the sphenoid bone tumor, which was raised in his May 24 request. Id. at PageID.479. Moreover, as the Government notes, if BOP failed to respond to English's amended request submitted on May 24, 2022, resolution on the merits is now appropriate because over 30 days have passed. ECF No. 80, PageID.1707. Therefore, the Court will consider English's motion in its entirety. See Ferguson, 539 F. Supp. 3d at 143


BOP's Gross Mismanagement of English's Healthcare Constitutes an Extraordinary and Compelling Circumstance. The parties agree that, according to the recently provided diagnosis confirmation, English has not been formally diagnosed with cancer, or with any other terminal illness. While such life-threatening conditions may present strong reasons for granting compassionate release, they are not the only kinds of reasons that suffice. Here, the record presents a history of BOP's gross mismanagement of English's serious health conditions. And even if it is not clear that English's medical conditions alone are life-threatening, the record here demonstrates that the mismanagement of these conditions creates extraordinary and compelling circumstances warranting compassionate release.


[discussing cases] Moreover, even it is true, as the Government points out, that English could seek recourse by filing a separate lawsuit on Eighth Amendment grounds, the availability of a potential Eighth Amendment remedy does not foreclose granting compassionate release. Indeed, several courts have recognized the similarities between the grounds for compassionate release and Eighth Amendment claims. Yet none have concluded that an Eighth Amendment claim precludes a defendant from seeking compassionate release. See Verasawmi, 2022 WL 2763518, at *8 (“A motion for compassionate release premised on the BOP's ‘indifference’ to an inmate's medical conditions or failure to provide adequate care bears similarities to claims under the Eighth Amendment for ‘deliberate indifference’ to a prisoner's ‘serious medical needs.’ ”); Burr, 2022 WL 17357233, at *8 (analyzing BOP's mismanagement of the defendant's medical treatment as “deliberate indifference,” warranting compassionate release); see also United States v. D'Angelo, No. 13-00114, 2022 WL 10066359, at *5 (D. Me. Oct. 17, 2022) (clarifying that “courts considering challenges to BOP medical treatment in the compassionate release context have limited their inquiry to whether the treatment is inadequate or the BOP is indifferent to the defendant's serious medical issues”)....


Here, the record strongly supports English's contentions that BOP has grossly mismanaged his serious health issues. First, BOP has continually failed to act with necessary expediency to ensure English receives urgent and consistent medical care. A prime example is the fact that English's sphenoid bone tumor was not biopsied until four months after the mass was discovered. Furthermore, the Government did not definitively confirm the tumor diagnosis until nearly three months after the biopsy, over six months after the discovery of the tumor, and only after the Court ordered the Government to provide a medical update that answered the question. During this time, English surely experienced significant anxiety over an uncertain diagnosis, while BOP failed to make any meaningful treatment plan....


In sum, BOP's gross mismanagement of English's serious health conditions, even if they are not yet life-threatening, presents an extraordinary and compelling reason for release. Despite the Court's urging, BOP has failed to make any notable improvements to its unacceptably slow pace of providing English with crucial treatment. Therefore, BOP's repeated delays coupled with English's serious health concerns and its lack of treatment plan support compassionate release.


The § 3553(a) Sentencing Factors Support English's Release. In assessing the § 3553(a) factors, the Court recognizes that English's offense of conviction was quite serious. English pleaded guilty to one count of conspiracy to distribute at least 500 grams of cocaine and at least 100 grams of heroin, and is currently serving a 78-month sentence. As the Court noted in denying English's first motion for compassionate release, he acted as an organizer, leader, manager, or supervisor in the drug trafficking conspiracy. ECF No. 44, PageID.300. Moreover, English committed the crime while he was still on supervised release after completing a substantial sentence for a similar drug trafficking offense. Id.


Such drug-related offenses are extremely dangerous and destructive to communities. But given English's serious health challenges, the Court's concern that English will become re-engaged in criminal activity is substantially reduced. Deterrence is also a less significant because English's condition itself is likely to deter him from committing new crimes. Although a longer prison term is often considered as a deterrent, the weight of that factor must be balanced against the significant health risks English faces if BOP's delays and unresponsiveness inhibit him from receiving the immediate medical attention he needs....


Therefore, after weighing all the arguments thoroughly briefed and argued by the parties, the Court concludes that a modification of English's sentence is appropriate. The relevant factors under 18 U.S.C. § 3553, and the presence of extraordinary and compelling circumstances justify permitting English to begin serving his four-year term of supervised release, with the special condition of home detention. See, e.g., United States v. Quinones Rodriguez, No. 13-30, 2020 WL 5045203, at *4 (W.D. Va. Aug. 26, 2020) (granting compassionate release and reducing the defendant's “sentence of imprisonment to time served, with supervised release with a condition of home confinement to follow for the remaining 36 months of his term of imprisonment”)."


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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