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January 20, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG

Updated: Jan 21


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 8,974 (down from 8,946) Currently positive-testing staff: 1,337 (up from 1,233) Recovered inmates: 42,750 (up from 42,360) Recovered staff: 9,287 (up from 9,252)


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

Yazoo City Medium FCI: 719 (unchanged)

Pekin FCI: 258 (down from 271)

Herlong FCI: 249

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

Central Office HQ: 44 (up from 42)

Carswell FMC: 42 (up from 40)

Pollock USP: 41 (up from 28)

System-wide testing results: Presently, BOP has 135,100 federal inmates in BOP-managed institutions and 11,734 in community-based facilities. Today's stats: Completed tests: 129,337 (up from 129,243) Positive tests: 51,360 (up from 50,938)


Total vaccine doses administered: 286,764 (up from 286,117)


Case Note: 50 down to 25 in light of COVID risk, rehab, and hard time served during pandemic...


In U.S. v. JOSE HERNANDO RODRIGUEZ, 2022 WL 158685 (S.D.N.Y. Jan. 18, 2022) (Oetken, J.), the court reduced defendant's 50 year sentence imposed for murder to 25 years because, even though vaccinated, he remains at risk, defendant is substantially rehabilitated, and he's been serving hard time during COVID, explaining: "Defendant Jose Hernando Rodriguez is serving a term of imprisonment of fifty years following his convictions for murder in the course of a drug conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A), and for using a firearm to cause the death of a person, in violation of 18 U.S.C. § 924(j). … First, Rodriguez's underlying health conditions put him at a high risk of illness from COVID-19. Rodriguez is a 52-year-old individual with obesity and was diagnosed with diabetes mellitus in 2019. (See Dkt. No. 213-1 at 4–11, 15.) He was also diagnosed with hyperlipidemia due to high cholesterol. (See Dkt. No. 213-1 at 4, 9, 11, 15.) Several courts have found that these conditions constitute extraordinary and compelling reasons for a sentence reduction. … As the government and defense both point out, Rodriguez received both doses of a COVID vaccine on March 24, 2021 and April 14, 2021 (Dkt. Nos. 213 at 25; 216 at 26), and his vaccination status surely reduces his risk of extreme illness from COVID. However, as the new variant has demonstrated, being vaccinated does not guarantee protection against COVID. … Therefore, the Court concludes that Rodriguez's health conditions constitute an extraordinary and compelling reason to modify his sentence. Second, while Rodriguez's health conditions may become less important if and when the pandemic ceases, the pandemic itself has not only posed a threat to Rodriguez's health but has made his incarceration more harsh, and effectively more punitive, than could have been expected by the sentencing court. “For someone with [Jose] Rodriguez's health profile, the risk of suffering severe health consequences if he contracts COVID-19, coupled to the severe conditions imposed by the concomitant lockdowns and restrictions that are necessary to ensure [his] safety, means that ‘the actual severity of [his] sentence as a result of the COVID-19 outbreak exceeds what the [sentencing] [c]ourt anticipated. Indeed, many courts, including this Court, have taken into consideration the harsh and difficult conditions of detention during the pandemic during sentencing hearings. See, e.g., United States v. Flores-Alberto, No. 20 Crim. 668 (07/19/21 Sentencing Tr. at 12:5–12) (“[D]etention during this pandemic has been extremely difficult .... There's no question that it's been more harsh than in normal times .... [T]he defendant's pretrial conditions were qualitatively more severe in kind and degree than the prospect of such experience is reasonably foreseeable in the ordinary case.”); United States v. Del Carmen, No. 18 Crim. 669 (05/21/21 Sentencing Tr. at 16:2–7) (“I do think the fact that you've served a significant number of months under these [pandemic] conditions since last year counts for a lot because I think ... it's been harsher conditions, and I've been giving people credit because I think that effectively is like more punishment.”) United States v. Ramirez, No. 20 Crim. 29 (10/20/20 Sentencing Tr. at 19:8–12) (explaining that “the nature of [the defendant's] detention during this pandemic has been really harsh ... and, frankly, I think that makes it probably twice as punitive as it would otherwise be”). While these harsher than normal conditions would not be sufficient on their own to grant a sentence reduction, this factor weighs in favor of finding extraordinary and compelling reasons. Third, and importantly, the evidence of Rodriguez's rehabilitation counsels in favor of finding extraordinary and compelling reasons. Rodriguez appears to have taken advantage of every programming opportunity available to him while incarcerated. … Perhaps most striking is the number of individuals who discussed how Rodriguez is a mentor to many incarcerated with him and has served as an excellent example of how to lead a productive and honorable life. … The Court concludes that this substantial evidence of rehabilitation and growth, along with Rodriguez's health conditions and the harsh nature of incarceration during COVID, weigh in favor of finding that extraordinary and compelling reasons exist to alter Rodriguez's sentence. … With regard to the second factor, which requires in part that the sentence “reflect the seriousness of the offense,” “promote respect for the law,” and “provide just punishment for the offense,” see 18 U.S.C. § 3553(a)(2)(A), Rodriguez's crime was undoubtedly very serious and brutal, and these considerations certainly weigh in favor of a substantial sentence. However, Section 3553(a) also requires the Court to consider whether the sentence “protect[s] the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). Rodriguez's remorse (see Dkt. No. 213-1 at 1) and rehabilitation are relevant to this factor and counsel in favor of a sentence reduction. Moreover, Rodriguez is fifty-two years old, and is therefore highly unlikely to reoffend. This is especially so considering that, if his sentence is reduced to twenty-five years, then even with good time credit, he will be around sixty years old by the time he is released.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced the COVID-related deaths of two female inmates of FPC Alderson, Bree Eberbaugh, 30, and Rebecca Marie Adams, 59. COVID-related fatalities now number 279. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.





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