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February 10, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 4,672 (down from 4,779) Currently positive-testing staff: 1,990 (up from 1,987) Recovered inmates: 51,339 (up from 51,228) Recovered staff: 10,336 (up from 10,286)


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

Oakdale II FCI: 298 (unchanged)

Yazoo City USP: 222 (unchanged)

Oakdale I FCI: 216 (unchanged)

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

El Reno FCI: 63 (unchanged)

Pollock USP: 62 (unchanged)

Central Office HQ: 55 (unchanged)

System-wide testing results: Presently, BOP has 134,377 federal inmates in BOP-managed institutions and 11,711 in community-based facilities. Today's stats: Completed tests: 129,258 (up from 129,254) Positive tests: 55,354 (up from 55,350)


Total vaccine doses administered: 295,151 (unchanged)


Case Note: Circuit split deepens on whether non-retroactive change in law can be "extraordinary and compelling"...


In U.S. v. Crandall, No. 20-3611, 2022 WL 385920 (8th Cir. Feb. 9, 2022), the Eighth Circuit deepened the Circuit split on whether a non-retroactive change in the law can be "extraordinary and compelling" for purposes of considering a compassionate release application. The defendant was convicted of various bank robbery-related offenses in 1989. His sentence was enhanced (to 526 months) because he was determined to be a career offender and because he was subject to consecutive prison terms for two firearms-related offenses. In 2020, defendant moved to reduce his sentence pursuant to a compassionate release application, pointing our that his sentence would be less than half—220 to 245 months—under current law, as the First Step Act eliminated mandatory consecutive sentences for multiple firearms convictions, Crandall said. The Eighth Circuit rejected his argument. It observed that Congress had not made retroactive the changes legislated by the First Step Act (including prohibiting "stacking" of § 924(c) firearms offenses) but rather left intact existing prison sentences. Legislative changes occur from time-to-time, said the court, and aren’t “extraordinary” circumstances. Additionally, Congress’ current opinion on what today would be an appropriate sentence doesn’t establish a compelling and extraordinary reason for reducing a past sentence: “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy,” the court said. As for the supposed change in the career criminal law, the court ruled that the cited Supreme Court case, Mathis v. United States, 579 U.S. 500 (2016), didn’t change the career-offender law, but rather merely interpreted existing law.


In so ruling the Eighth Circuit deepened an existing Circuit split. The Fourth Circuit has said that an “enormous disparity” between a prisoner’s sentence and the one he would receive today can be an extraordinary and compelling reason for reducing the sentence. The Tenth Circuit agrees. But the Eighth Circuit followed the Third and Seventh Circuits, which have held that a non-retroactive change in the law isn’t an extraordinary and compelling reason justifying a sentence reduction. There is an intra-circuit split in the Sixth Circuit.


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new inmate deaths, which remain at 285. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.


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