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July 9, 2021: BOP COVID-19 AND COMPASSIONATE RELEASE UPDATE




Quick Facts: Currently positive-testing inmates: 29 (up from 21) Currently positive-testing staff: 131 (down from 132) Recovered inmates: 43,763 (down from 43,778) Recovered staff: 6,901 (down from 6,905) Institutions with the largest number of currently positive-testing inmates:

Bennetsville FCI: 2 (unchanged)

Miami FDC: 2

Sandstone FCI: 2

Institutions with the largest number of currently positive-testing staff: Pekin FCI: 9 (unchanged)

Beaumont Medium FCI: 5 ( unchanged) Brooklyn MDC: 5 (unchanged)

System-wide testing results: Presently, BOP has 129,902 federal inmates in BOP-managed institutions and 14,242 in community-based facilities. Today's stats: Completed tests: 116,515 (up from 116,231) Positive tests: 43,201 (down from 43,206)

Case Note: No vaccine? No sympathy...


In U.S. v. IBRAHIM KURTI, 2021 WL 2823562 (S.D.N.Y. July 7, 2021) (Preska, J.), defendant's refusal to be vaccinated doomed his argument he should be released because he was at-risk for COVID, the court explaining: "Defendant has not proffered any reason why he is more at risk from COVID-19 than any other inmate. He bases his motion on his lack of complete control over all of the circumstances of his living conditions. That lack of control is applicable to any inmate and thus cannot constitute “extraordinary and compelling circumstances warranting release” under the statute. What Defendant did have control over, however, was whether to receive a vaccine that would dramatically reduce his risk of contracting the virus and reduce the risk that, if he did so, he would suffer a severe illness. As the Government points out in its papers, Defendant was offered the Moderna vaccine in February of 2021 but refused it. (See Ex. C to Letter from Andrew Jones, dated June 4, 2021, Defendant's Medical Records, at 22-23.) Judges in this District, and others, have repeatedly held that a defendant who refused a COVID-19 vaccine “cannot satisfy his burden of showing that relief is warranted based on the fact that he was offered, and he refused, a COVID-19 vaccine.” United States v. Bullock, 18 Cr. 528 (JMF), 2021 WL 1550424, at *1 (S.D.N.Y. Apr. 20, 2021). This is because by “declining vaccination ... [Defendant] declined the opportunity to reduce his risk exposure to COVID-19 dramatically; he cannot reasonably expect that prolonging his risk by declining vaccination will be rewarded with a sentence reduction.” Id. (quoting United States v. Lohmeier, No. 12 Cr. 1005, 2021 WL 365773, at *2 (N.D. Ill. Feb. 3, 2021)); United States v Graves, 15 Cr. 509 (CS) (S.D.N.Y. Mar. 15, 2021) (“It would be paradoxical to endorse a system whereby a defendant could manufacture extraordinary and compelling circumstances for compassionate release by unreasonably refusing the health care afforded to [him].”) (quoting United States v. Gonzalez Zambrano, No. 18 Cr. 2000, 2021 WL 248592, at *5 (N.D. Iowa Jan. 25, 2021)). The Court joins those and other courts in finding that a defendant who unreasonably declines a vaccination cannot establish “extraordinary and compelling circumstances warranting release” on account of COVID-19.”


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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