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January 20, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 85 BOP facilities and 10 RRCs

Currently positive-testing inmates: 148 (up from 125) Currently positive-testing staff: 249 (down from 268) Recovered inmates currently in the BOP: 46,672 (down from 46,765) Recovered staff: 14,841 (up from 14,815)


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

Bastrop FCI: 12

Butner Medium I FCI: 12 (unchanged)

Ft. Dix FCI: 10 (unchanged)


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

Central Office HQ: 60 (unchanged)

Rochester FMC: 16 (unchanged)

Brooklyn MDC: 15 (unchanged)


System-wide testing results: Presently, BOP has 145,395 federal inmates in BOP-managed institutions and 12,964 in community-based facilities. Today's stats: Completed tests: 128,641 (unchanged) Positive tests: 55,289 (unchanged)


Total vaccine doses administered: 346,009 (up from 345,625)


Case Note: COVID conditions were particularly harsh for this defendant with multiple medical conditions, justifying 14-month reduction off 151-month sentence...


In U.S. v. DAVID OQUENDO, Defendant., No. 13 CR. 357-1 (KPF), 2023 WL 199609 (S.D.N.Y. Jan. 17, 2023) (Failla, J.), the court found that defendant's prison experience, including medical deterioration and suffering through the harsh conditions of COVID, are extraordinary and compelling, deserving of a 14-month reduction of his 151-month sentence, explaining: "Mr. Oquendo has offered an additional argument for compassionate release based on his medical conditions — namely, that violence and mistreatment he experienced in 2020 and 2021 at the hands of prison staff created or exacerbated serious medical conditions, and thus provide two other bases for compassionate release, insofar as they reflect inordinately harsh conditions of confinement and an inability on the part of BOP staff to care for Mr. Oquendo's medical conditions. (See, e.g., Dkt. #143 at 21-26). On this point, the Court offers a few preliminary observations. To begin, the parties present divergent narratives surrounding the circumstances of (and BOP's reaction to) Mr. Oquendo's November 2020 and January 2021 seizures; Mr. Oquendo contends that he was beaten on both occasions while he was in the midst of the seizures (id. at 8-10), while the Government contends that any injuries Mr. Oquendo suffered were the product of either his seizures or his efforts to resist prison staff as they attempted to help him (Dkt. #148 at 6). There is support in the record for both positions: Mr. Oquendo has identified several inconsistencies in internal BOP records of the encounters on those dates (see, e.g., Dkt. #150 at Ex. A-B), but the Government is correct that the recorded injuries are equally consistent with accidental harms inflicted by Mr. Oquendo on himself during the seizures. In addition, the evidence suggests that BOP may have acted incorrectly, but in good faith, in diagnosing Mr. Oquendo's medical issues. That is, BOP medical records reflect that on both occasions, BOP staff administered Narcan to Mr. Oquendo, believing that his seizures were the product of illicit drug use, a hypothesis that does not appear to have been borne out by subsequent medical tests. (Medical Records). It is also significant to the Court that Mr. Oquendo had no history of seizures before November 2020, and that as a result of the medical treatment that he received outside of USP Big Sandy in January and February 2021 and within the facility since then, he has not had a recurrence of the seizures and appears to have resolved his kidney and liver issues. The fact remains, however, that Mr. Oquendo has had a number of serious medical issues while in federal detention. Separate and apart from the seizures, which resulted in concussions, hematomas, and other head injuries, Mr. Oquendo was diagnosed in January 2021 with sepsis, acute kidney injury (to the point of renal failure and several weeks of dialysis), hepatitis C, and rhabdomyolysis (a condition involving the breakdown and dissolution of damaged skeletal muscle and the concomitant release of that muscle's contents into the bloodstream). (Medical Records). Though the majority of those conditions were resolved with medical attention in 2021, Mr. Oquendo also reported blurry vision, kidney pain, and swelling in his extremities later that year. By 2022, Mr. Oquendo's then-current medical conditions were listed as seizure disorder and primary hypertension. Thus, it appears to the Court that the worst of Mr. Oquendo's medical issues have been resolved. That said, the fact that Mr. Oquendo experienced so many acute medical issues while incarcerated indicates that his detention, irrespective of the COVID-19 pandemic, resulted in more deleterious consequences to his health than were faced by other federal inmates during this period. This conclusion dovetails with another basis that this Court has recognized for compassionate release, namely, that the conditions of Mr. Oquendo's confinement during the COVID-19 pandemic have resulted in a sentence that was more severe than Judge Pauley could have contemplated when he originally sentenced him in March 2014. While Judge Pauley carefully balanced the information then available to him, he could not have foreseen the restrictions that would be precipitated by the pandemic (including lockdowns and curtailment of facility programming and visitation), nor the public health risks faced by individuals like Mr. Oquendo who have spent the entirety of the pandemic in a carceral setting, nor the length of time over which these risks and deprivations would persist. And in a prior decision resolving a compassionate release motion, the Court recognized “that courts reviewing motions for sentence modifications have considered the extent to which onerous lockdowns and restrictions imposed by correctional facilities attempting to control the spread of the virus have made sentences ‘harsher and more punitive than would otherwise have been the case.’ ” United States v. Hatcher, No. 18 Cr. 454-10 (KPF), 2021 WL 1535310, at *3 (S.D.N.Y. Apr. 19, 2021) (quoting United States v. Rodriguez, 492 F. Supp. 3d 306, 311 (S.D.N.Y. 2020)); see also United States v. Mcrae, No. 17 Cr. 643 (PAE), 2021 WL 142277, at *5 (S.D.N.Y. Jan. 15, 2021) (“[A] day spent in prison under extreme lockdown and in fear of contracting a deadly virus exacts a price on a prisoner beyond that imposed by an ordinary day in prison. While not intended as punishment, incarceration in such conditions is, unavoidably, more punishing.”). In short, the Court has previously concluded, and concludes here, that pandemic-induced conditions of confinement can constitute “extraordinary and compelling” circumstances warranting compassionate release, particularly for defendants who have (i) served long sentences and (ii) been detained for the entirety of the pandemic. Here, there can be no serious dispute that, using just the metric of his health, Mr. Oquendo has experienced harsher conditions of confinement than could have been anticipated, and the Court finds that the length and totality of these conditions amount to extraordinary and compelling circumstances under § 3582(c)(1)(A)(i). It therefore proceeds to consider whether such relief is warranted in this case in light of the factors set forth in 18 U.S.C. § 3553(a). … For all of these reasons, the Court will grant Mr. Oquendo's motion to the extent that it will impose a 14-month reduction in his sentence.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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