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December 7, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 80 BOP facilities and 12 RRCs

Currently positive-testing inmates: 232 (up from 222) Currently positive-testing staff: 186 (down from 189) Recovered inmates currently in the BOP: 47,579 (down from 47,637) Recovered staff: 14,644 (up from 14,637)


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

Leavenworth: 32 (unchanged)

Allenwood Low FCI: 25 (unchanged)

Carswell FMC: 23 (down from 27)


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

Central Office HQ: 58 (unchanged)

Western RO: 7 (unchanged)

Brooklyn MDC: 6 (unchanged)


System-wide testing results: Presently, BOP has 144,875 federal inmates in BOP-managed institutions and 13,860 in community-based facilities. Today's stats: Completed tests: 128,659 (unchanged) Positive tests: 55,307 (unchanged)


Total vaccine doses administered: 341,332 (up from 340,090)


Case Note: Fourth Circuit holds that issue exhaustion is not required so long as defendant presented some extraordinary and compelling circumstance to BOP..


In U.S. v. Ferguson, No. 21-6733, 2022 WL 17256572 (4th Cir. Nov. 29, 2022) (published) (Thacker, J.) the Fourth Circuit held that issue exhaustion is not required in CR motions, and therefore a federal prisoner satisfies the exhaustion requirement by presenting an extraordinary and compelling circumstance to the BOP, and can add more once in court explaining: "While serving his federal sentence, Dwayne Ferguson (“Appellant”) asked the warden of the facility where he was incarcerated to file a motion for compassionate release on his behalf. After the warden denied his request, Appellant moved for compassionate release in federal district court. In addition to the arguments for compassionate release that Appellant presented to the warden, which were related to his medical condition, Appellant's motion for compassionate release in the district court included arguments that his convictions and sentence were unlawful. The district court denied Appellant's motion. First, the district court determined that Appellant had not exhausted his administrative remedies as to the arguments about his convictions and sentence because he had not raised them in his request to the warden. … The district court's pronouncement was incorrect because § 3582(c)(1)(A) “outlines two routes” for requesting compassionate release in the district court, “one of which does not require exhaustion of administrative remedies.” Muhammad, 16 F.4th at 131. Specifically, the defendant may move for compassionate release “after [he] has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A) (emphases supplied). Stated differently, “the threshold requirement” to file a compassionate release motion is “satisfied if a defendant requests the [BOP] to bring a motion on [his] behalf and either fully exhausts all administrative rights to appeal the [BOP]'s decision or waits 30 days from the date of [his] initial request.” Muhammad, 16 F.4th at 131 (emphases in original). In short, the defendant is not required to exhaust his administrative remedies with the BOP at all beyond making the initial request for compassionate release. Therefore, we see no reason to limit his motion for compassionate release in the district court to only those grounds for compassionate release he identified in his request to the BOP. … Moreover, issue exhaustion typically derives from the language of the governing statute or regulation. See Sims v. Apfel, 530 U.S. 103, 107–08, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). But neither § 3582(c)(1)(A) nor the BOP's compassionate release procedures expressly require issue exhaustion. As we have already said, the statute allows a criminal defendant to bring a compassionate release motion in district court even without exhausting his administrative remedies with the BOP. See Muhammad, 16 F.4th at 131. And the BOP regulation setting forth the procedures for making a compassionate release request, 28 C.F.R. § 571.61(a)(1), simply obligates the inmate to include “[t]he extraordinary or compelling circumstances that the inmate believes warrant consideration” in his request to the warden of his facility -- it does not purport to apply to the inmate's request to the district court or limit the district court's consideration to only those reasons identified to the BOP. And, in the absence of a statutory or regulatory issue exhaustion requirement, the Supreme Court has cautioned against judicially imposing such a requirement in a non-adversarial administrative proceeding. Sims, 530 U.S. at 109–10, 120 S.Ct. 2080 (“[T]he desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.... Where ... an administrative proceeding is not adversarial, we think the reasons for a court to require issue exhaustion are much weaker.”). The compassionate release process at the BOP level is non-adversarial, and the BOP is not adjudicating the merits of the inmate's request for compassionate release but rather determining whether to use government resources to ask for compassionate release on the inmate's behalf. Accordingly, Sims counsels against imposing an issue exhaustion requirement in the compassionate release context. We hold that § 3582(c)(1)(A) does not require issue exhaustion. The district court erred when it concluded that it could not consider Appellant's non-medical arguments because he did not raise them in the request for compassionate release that he made to the BOP.”


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.



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