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February 16, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 1,717 (down from 2,048) Currently positive-testing staff: 1,714 (down from 1,785) Recovered inmates: 54,062 (up from 53,832) Recovered staff: 10,736 (up from 10,650)


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

Oakdale II FCI: 243 (down from 306)

Oakdale I FCI: 160 (unchanged)

Lompoc: 119

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

El Reno FCI: 63 (unchanged)

Pollock USP: 62 (unchanged)

Central Office HQ: 55 (down from 56)

System-wide testing results: Presently, BOP has 134,396 federal inmates in BOP-managed institutions and 11,775 in community-based facilities. Today's stats: Completed tests: 128,906 (down from 129,251) Positive tests: 55,554 (down from 55,347)


Total vaccine doses administered: 297,835 (up from 297,425)


Case Note:


In U.S. v. Barbee, No. 21-1356, 2022 WL 417409 (7th Cir. Feb. 11, 2022) (published) (Rovner, J.), the court found the district court did not abuse its discretion in finding that the risk of COVID did not mitigate in favor of granting compassionate release because defendant failed to present evidence that he is at lesser risk of contracting COVID-19 outside prison than within, explaining, "In his appeal, Barbee relies largely on Newton, where we remanded for further consideration because the district court failed to consider the movant's medical conditions in combination, made an unsupported medical finding, and gave no indication that it had considered the movant's individualized arguments that were supported by the record. Barbee contends that the district court made similar errors here, and that the court's order is so brief that it does not allow for meaningful review. We need not decide if Barbee's situation is comparable to Newton's because this appeal is foreclosed by our recent decisions in United States v. Ugbah, 4 F.4th 595 (7th Cir. 2021); and United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021). In those cases, we recognized that COVID-19 was a grave problem in America's prisons at its outset because prisoners and staff cannot engage in social distancing. Broadfield, 5 F.4th at 802. Today, however, effective vaccines are available, and counsel informed this court at oral argument that Barbee had received two doses of the Moderna vaccine. At the time we issued our opinion in Broadfield, we noted that “published data do not establish or imply an incremental risk for prisoners—either a risk of contracting the disease after vaccination or a risk of a severe outcome if a vaccinated person does contract the disease.” 5 F.4th at 802-03. See also Ugbah, 4 F.4th at 597 (prisoners who have access to a vaccine cannot use the risk of COVID-19 to obtain compassionate release unless they can demonstrate that they are medically unable to receive or benefit from the available vaccines). Although Barbee contends that he remains at risk as the COVID-19 situation continues to evolve, he has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released. Newton, 996 F.3d at 488 (the movant bears the burden of establishing extraordinary and compelling circumstances). Despite any alleged deficiencies in the district court's ruling, “remand would be appropriate only if reconsideration could produce a decision in [Barbee's] favor[.]” Broadfield, 5 F.4th at 803. Given the current data and the availability of safe and effective vaccines, it could not. If circumstances change, Barbee is free to file a new motion.”


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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