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December 3, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 173 (up from 171) Currently positive-testing staff: 210 (down from 214) Recovered inmates: 41,972 (up from 41,966) Recovered staff: 8,556 (up from 8,542)


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

Waseca FCI: 80 (up from 59)

Pollock FCI: 8

Stafford FCI: 8 (down from 11)

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

Carswell FMC: 13 (unchanged)

McKean FCI: 13 (unchanged)

La Tuna FCI: 8

System-wide testing results: Presently, BOP has 134,502 federal inmates in BOP-managed institutions and 14,882 in community-based facilities. Today's stats: Completed tests: 126,170 (up from 126,110) Positive tests: 41,745 (up from 41,736)


Total vaccine doses administered: 261,663 (up from 260,263)


Case Note: Court finds that likely increases in staff vaccination rates as mandatory vaccination is implemented will reduce risk to healthy, vaccinated inmates and militates against compassionate release...


In U.S v. Bert Leonard Summer, 2021 WL 5634930, at *1–2 (D. Ariz. Dec. 1, 2021) (Rayes, J.), the court denied compassionate because, inter alia, the rate of staff vaccination will improve, mitigating COVID-19 threat to healthy, vaccinated inmates, explaining: "It is well established that the prison environment has inherent exposure risk that can, to some degree, be mitigated but cannot be eliminated. Since the beginning of the pandemic, the BOP has had a spotty record of success in protecting inmates from COVID-19. However, the medical evidence overwhelming has shown the effectiveness of the vaccine in reducing the risk of a serious illness from COVID-19. (Doc. 93 at 10.) With Defendant's pre-existing morbidities and his age, he nonetheless is at higher risk than a person without those conditions. Break-through cases of COVID-19 are not uncommon. Defendant points to the recent death of Colin Powell as an example. (Doc. 99 at 11.) But, as Defendant recognized, General Powell was 84 and immunocompromised. (Elderly, immunocompromised individuals have been shown to be at risk of serious complications even if vaccinated.) Although he speculates, Defendant has not shown that he is immunocompromised. He states, “who's to say I'm not compromised?” (Doc. 99 at 11.) Asking the question is not evidence and does meet the required burden of proof. Defendant notes the biggest risk of infection comes from staff, whose vaccination rate has lagged significantly behind that of the inmates themselves. (Doc. 99 at 4-5.) As an example, Defendant discusses inmates being infected by staff members who brought the virus into a dorm. (Doc. 99 at 12.) The risk of infection to a 62-year-old man who is in prison with preexisting morbidities by being exposed to younger staff members who may be infected with no symptoms, a large percentage of whom are unvaccinated, could be an extraordinary and compelling reason as intended by 18 U.S.C. § 3582(c)(1)(A), if Defendant was immunocompromised. However, Defendant acknowledges that because the vaccination rate for staff will soon improve as the federal vaccination mandate is implemented, his concern over unvaccinated staff will dissipate. … Defendant expresses concern that the next variant of the virus will not be dealt with well by his facility, exposing him to more risk and punishment. Defendant is correct that other variants of the virus are possible, but Defendant has not shown that his vaccination is likely to provide significantly less protection to him, staff, or other inmates against any new variant or that he is likely to be exposed to a new variant that is likely to be more infectious or cause significantly worse outcomes than the current variants.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified another, as yet unidentified inmate fatality, bringing the total inmate COVID-related deaths to 269. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.


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