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July 13, 2021: BOP COVID-19 AND COMPASSIONATE RELEASE UPDATE




Quick Facts: Currently positive-testing inmates: 57 (up from 27) Currently positive-testing staff: 118 (down from 119) Recovered inmates: 43,693 (down from 43,726) Recovered staff: 6,932 (down from 6,921) Institutions with the largest number of currently positive-testing inmates:

Texarcana FCI: 29

Devens MFC: 2

Florence High USP: 2

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

Brooklyn MDC: 5 (unchanged)

Leavenworth USP: 5

Oakdale I FCI: 5

System-wide testing results: Presently, BOP has 130,057 federal inmates in BOP-managed institutions and 14,113 in community-based facilities. Today's stats: Completed tests: 116,695 (up from 116,645) Positive tests: 43,168 (unchanged)

Case Note: Failure to anticipate pandemic does not vitiate appellate plea waiver...


In U.S. v. DARREN CHARLES THOMAS, JR., Defendant-Appellant., No. 21-1318, 2021 WL 2853158 (7th Cir. July 8, 2021) (unpublished) (per curium), the court held that, as long as a defendant's plea hearing occurs in compliance with Rule 11, failure to foresee a global pandemic does not render a plea unknowing and involuntary such that a waiver of the right to bring a CR is invalid, explaining: "Second, Thomas argues that the waiver was not knowing or voluntary because he could not have foreseen the COVID-19 pandemic. But that is not the right inquiry. The colloquy at Thomas's change-of-plea hearing, conducted in accordance with Federal Rule of Criminal Procedure 11, shows that he understood the rights he was waiving. In particular, he confirmed that he had “specifically discuss[ed]” with counsel the waiver of his appeal, modification, and collateral-attack rights and that he understood the “specific rights” he was giving up. Further, Thomas entered his plea agreement in 2019, after the First Step Act gave prisoners the right to seek modification of their sentences, even without the support of the Bureau of Prisons. Bridgewater, 995 F.3d at 595. “In other words, this type of modification proceeding was known and available when [Thomas] agreed not to use it.” Id. Thomas's inability to predict the pandemic reveals only that “he did not fully appreciate that he might wish to change his mind later,” not that his earlier agreement was unknowing or involuntary. Id. at 596 (quoting United States v. Alcala, 678 F.3d 574, 580 (7th Cir. 2012)). “Yet such is the risk with plea-bargaining and waiver.” Id. The waiver is therefore valid.”

Death Watch: The BOP has reported no additional inmate fatalities, leaving the number of inmate fatalities at 240. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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