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July 30, 2021: COMPASSIONATE RELEASE and BOP COVID-19 UPDATE



Quick Facts: Currently positive-testing inmates: 261 (up from 236) Currently positive-testing staff: 154 (up from 142) Recovered inmates: 43,095 (down from 43,129) Recovered staff: 7,017 (unchanged) Institutions with the largest number of currently positive-testing inmates:

Texarcana FCI: 66 (up from 61)

Aliceville FCI: 29 (up from 28)

McCreary USP: 28 (unchanged)

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

Pollock: 14 (up from 13)

Coleman Low FCI: 9 (unchanged)

Coleman I USP: 6 (unchanged)

System-wide testing results: Presently, BOP has 130,450 federal inmates in BOP-managed institutions and 14,366 in community-based facilities. Today's stats: Completed tests: 118,307 (up from 118,306) Positive tests: 42,806 (up from 42,805)

Total Vaccine doses distributed: 205,270

Case Note: Is COVID no longer an extraordinary and compelling circumstance?


In U.S. v. BROOKLYNN G MACK, 2021 WL 3202075 (S.D. Ind. July 28, 2021) (Barker, J.), the court ordered the defendant to explain why, in light of available vaccines in the prisons, COVID should still be considered an extraordinary and compelling circumstance supporting compassionate release, explaining: "Recently, the U.S. Court of Appeals for the Seventh Circuit held that COVID-19 could not be an extraordinary and compelling reason for release for an inmate who had declined the vaccine without an adequate medical justification. See United States v. Broadfield, __ F.4th __, No. 20-2906, 2021 WL 3076863 (7th Cir. July 21, 2021). In so holding, the court reasoned, "[F]or the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer far more relief than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine may still turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an 'extraordinary and compelling' reason for immediate release." Id. at *2. Given the reasoning of Broadfield and the high rate of vaccination at Defendant's facility, it appears to the Court that the COVID-19 pandemic no longer creates an extraordinary and compelling reason warranting relief under § 3582(c)(1)(A). Accordingly, within 14 days of the date of this Order Defendant shall show cause why the Court should not find that the COVID-19 pandemic no longer presents an extraordinary and compelling reason for her release. In responding, Defendant must explain: (1) whether she has received the COVID-19 vaccine; (2) if she has not received the COVID-19 vaccine, whether she has been offered the vaccine and refused it; and (3) if she has refused the COVID-19 vaccine, she must explain why. Any explanation of the reason Defendant refused the COVID-19 vaccine must be supported by admissible evidence (such as an affidavit or declaration under penalty of perjury). If Defendant fails to respond as required by this Order, the Court will deem her to have abandoned the argument that the COVID-19 pandemic constitutes an extraordinary and compelling reason for relief. IT IS SO ORDERED.) (emphasis in original)

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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