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January 21, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 9,020 (up from 8,974) Currently positive-testing staff: 1,432 (up from 1,237) Recovered inmates: 43,427 (up from 42,750) Recovered staff: 9,3454 (up from 9,287)


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

Yazoo City Medium FCI: 664 (down from 719)

Carswell FMC: 316

Herlong FCI: 249 (unchanged)

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

Central Office HQ: 47 (up from 44)

Pollock USP: 45 (up from 41)

Carswell FMC: 44 (up from 42)

System-wide testing results: Presently, BOP has 1354,809 federal inmates in BOP-managed institutions and 11,790 in community-based facilities. Today's stats: Completed tests: 129,484 (up from 129,337) Positive tests: 52,081 (up from 51,360)


Total vaccine doses administered: 287,681 (up from 286,764)


Case Note: District court wrongly focused on the rarity of defendant's health conditions instead of their ability to increase his risk of severe illness...


In U.S, v. NATHAN PETWAY, Defendant - Appellant., No. 21-6488, 2022 WL 168577 (4th Cir. Jan. 19, 2022) (unpublished) (per curium), the Fourth Circuit found that the district court’s conclusion that petitioner failed to show particularized susceptibility because a large portion of the population also suffered from the condition was an abuse of discretion, explaining: "Nathan Petway, an inmate at FCI Butner in North Carolina, appeals from the district court's denial of his motion for compassionate release. Petway seeks relief based upon hypertension and diabetes which, he maintains, place him at an increased risk of a severe COVID-19 illness. As explained below, we vacate and remand. … By his motion for release, Petway contended that hypertension and diabetes constituted extraordinary and compelling reasons to warrant his compassionate release from prison, because those health conditions placed him at an increased risk of severe illness from COVID-19. Petway predicated his contentions primarily on guidelines promulgated by the Centers for Disease Control and Prevention (the “CDC”), which had identified diabetes as a health condition that increased the risk of a severe illness from COVID-19, and which deemed hypertension a health condition that might increase that risk. … The district court disagreed with Petway and denied relief, ruling that his health conditions did not constitute the extraordinary and compelling reasons required by the statutory provision. See United States v. Petway, No. 4:04-cr-00056 (E.D.N.C. Mar. 25, 2021), ECF No. 262 (the “Denial Order”). Relying on a non-precedential decision of our Court in United States v. Adamson, 831 F. App'x 82 (4th Cir. 2020), the Denial Order explained that, “[i]n the context of the COVID-19 outbreak, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility.” See Denial Order 5 (internal quotation marks omitted). The Denial Order ruled that Petway had failed to make either of those showings. Assessing Petway's particularized susceptibility to COVID-19, the court recognized that, according to the CDC, some health conditions place — or may place — a person at an increased risk of severe illness from COVID-19. Having examined Petway's medical records, the court agreed that he was indeed “at an increased risk of developing a severe illness from the coronavirus.” Id. at 7. Nevertheless, the Denial Order ruled that Petway “failed to demonstrate a particularized high risk of susceptibility to coronavirus, especially considering the large portion of the general population who suffer from the same conditions.” Id. (internal quotation marks omitted). … On appeal, Petway contends that the Denial Order erred in ruling that his hypertension and diabetes did not constitute extraordinary and compelling reasons for compassionate release because the court erroneously focused on the commonality of his health conditions, instead of on their likelihood of placing him at an increased risk of severe illness from COVID-19. We review for abuse of discretion a district court's denial of a compassionate release motion. … In assessing whether Petway had demonstrated extraordinary and compelling reasons for a compassionate release, the district court first evaluated whether he had shown a particularized susceptibility to COVID-19. In so doing, the Denial Order focused on the rarity of Petway's health conditions instead of their ability to increase his risk of severe illness. That analysis was erroneous as a matter of law and warrants a remand. To determine whether Petway has demonstrated a particularized susceptibility to COVID-19, the court should have only assessed whether his particular health conditions placed him at an increased risk of severe illness from COVID-19. There is no requirement that the health conditions also be rare ones. In support of its reasoning, the Denial Order cited a district court opinion from Texas, which observed that prevalent diseases, such as diabetes and hypertension, cannot be deemed “extraordinary” in the context of compassionate release. See Denial Order 7 (citing United States v. Mondragon, No. 4:18-cr-132 (5), 2021 WL 951797, at *4 (E.D. Tex. Mar. 12, 2021)). It is not, however, the health condition itself that ought to be sufficiently “extraordinary” to warrant compassionate release, and Petway does not contend that his diabetes and hypertension are “extraordinary” conditions. Rather, it is the risk of his health conditions — in light of the COVID-19 pandemic — that can be sufficient to satisfy the “extraordinary and compelling” statutory requirement for compassionate release.* And to determine whether a particular condition places a person at an increased risk of a severe COVID-19 illness, a court should — as the district court here did — look to the CDC for guidance. The CDC has identified conditions that increase or may increase the risk of a severe COVID-19 illness. And the CDC's list is regularly updated. … Pursuant to the foregoing, we vacate the judgment and remand for such other and further proceedings as may be appropriate.”



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related deaths. Inmate fatalities remain at 279. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.





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