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July 8, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 470 (up from 445) Currently positive-testing staff: 367 (up from 354) Recovered inmates currently in the BOP: 49,857 (down from 49,987) Recovered staff: 13,113 (up from 13,100)


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

SeaTac FDC: 188 (unchanged)

Phoenix FCI: 59 (up from 55)

Texarkana FCI FCI: 27 (up from 21)

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

Central Headquarters: 42 (unchanged)

Rochester FMC: 16 (unchanged)

Houston FDC: 16 (up from 15)

System-wide testing results: Presently, BOP has 140,119 federal inmates in BOP-managed institutions and 13,860 in community-based facilities. Today's stats: Completed tests: 128,702 (up from 128,700) Positive tests: 55,350 (up from 55,348)


Total vaccine doses administered: 323,756 (up from 323,624)


Case Note: Are the imbalance of bargaining power between the government and the defendant and the trial penalty extraordinary and compelling? Nope...


In U.S. v. FLOYD SHAW, Defendant., No. 15-20624, 2022 WL 2467721 (E.D. Mich. July 6, 2022) (Goldsmith, J.), the court held that the imbalance of power in plea bargaining and the trial penalty are not extraordinary and compelling, explaining: “After beginning his prison term, Shaw filed a motion to vacate his sentence under 28 U.S.C. § 2255 (Dkt. 195). In resolving Shaw's motion, Judge Tarnow commented that “Shaw's case is emblematic of the breakdown of our justice system's sentencing structure,” referring to the great “power” that prosecutors wield to determine the “the offense and the offender,” and the comparatively “little negotiating power” of criminal defendants. 11/3/20 Op. at 24–26 (Dkt. 287). Nevertheless, Judge Tarnow determined that Shaw was not entitled to relief under § 2255 (Dkts. 240, 287). … Shaw points to the fact that Judge Tarnow, in denying Shaw's § 2255 motion, described his case as “emblematic of the breakdown of [the] justice system's sentencing structure.” Mot. at 6. But a criminal defendant's weakened negotiating position is not an extraordinary circumstance. “Extraordinary,” as used in § 3582(c)(1)(A), means “ ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent.’ ” United States v. Hunter, 12 F.4th 555, 562 (6th Cir. Aug. 30, 2021) (quoting Webster's Third New International Dictionary: Unabridged 807 (1971)). As Judge Tarnow put it, a criminal defendant's “weakened [negotiating] position has become so ubiquitous in our nation's system of justice that it has its own name – ‘the trial tax.’ ” 11/3/20 Op. at 26 (emphasis added). Nor is it a compelling reason to reduce Shaw's sentence. Compelling means “forcing, impelling, driving.” Hunter, 12 F.4th at 562 (punctuation modified). Judge Tarnow, in denying Shaw's § 2255 motion, opined that the “inequitable result in this case is the byproduct of excessive prosecutorial power, and not the alleged involuntariness of his plea or ineffective assistance of his counsel.” 8/9/18 Op. at 13 (Dkt. 240). The fact that a criminal defendant like Shaw now regrets knowingly and voluntarily entering into a plea agreement certainly falls short of a compelling circumstance. To hold otherwise would open the door for any criminal defendant to undo a valid plea agreement.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related inmate deaths, and so the total remains at301. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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