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June 17, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 185 (up from 181) Currently positive-testing staff: 289 (up from 268) Recovered inmates currently in the BOP: 50,626 (down from 50,696) Recovered staff: 12,941 (up from 12,924)


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

Marianna FCI: 34 (up from 30)

Bastrop FDC: 20 (down from 21)

Honolulu FCI: 15

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

Central Headquarters: 32 (up from 30)

Rochester FMC: 16 (up from 10)

Mendota FCI: 10 (down from 11)

System-wide testing results: Presently, BOP has 134,039 federal inmates in BOP-managed institutions and 13,795 in community-based facilities. Today's stats: Completed tests: 128,724 (up from 128,722) Positive tests: 55,372 (up from 55,370)


Total vaccine doses administered: 321,529 (up from 321,239)


Case Note: Defendant sentenced pre-COVID awarded 20-month sentence reduction in consideration of harsh conditions of confinement...


In U.S. v. Batista, 2022 WL 1997173 (S.D.N.Y. June 6, 2022) (Swain, J.), the court grants 20-month sentence reduction to defendant, in consideration of sentencing two months before COVID struck, and conditions of confinement, including asbestos at FCI Tallahassee, explaining: "On September 5, 2019, upon pleading guilty, Ms. Batista was convicted of one count of using, carrying, and possessing a firearm which was brandished, and aiding and abetting that conduct, during, in relation to, and in furtherance of a robbery, in violation of 18 U.S.C. sections 924(c)(1)(A)(i), (ii) and 2. (Docket entry no. 157.) On January 16, 2020, approximately two months before the President of the United States declared a nationwide emergency in response to the COVID-19 pandemic, the Court sentenced her principally to the mandatory minimum term of 84 months of imprisonment, to be followed by a three-year supervised release term. … In the nearly twenty-nine months since Ms. Batista's sentencing—and the nearly twenty months since the Court's 2020 Order—certain facts relevant to the Court's section 3553(a) analysis of her case have developed. As discussed in greater detail below, inside Ms. Batista's facilities, the intermittent lockdowns and restrictions imposed by the BOP in response to the COVID-19 pandemic have continued, rendering her conditions of incarceration harsher and more punitive than they would have been in the absence of the pandemic, and limiting her access to educational and other rehabilitative resources. Furthermore, the Court later sentenced several of Ms. Batista's co-defendants to custodial terms reflecting that their time in custody had been and would be more challenging in pandemic circumstances than it would be under non-pandemic circumstances. (See, e.g., docket entry no. 504 at 29:3-7 (“The Court takes into account these unusually harsh conditions of detention, principally, but not exclusively, caused by the COVID-19 pandemic in fashioning an appropriate sentence for Mr. Calderon.”); docket entry no. 430 at 29:7-13 (“[S]ince approximately the second quarter of 2020, Mr. Fertides has been detained in the context of the COVID-19 pandemic in conditions of confinement that have been far more challenging and harsher than the typical federal conditions of custody in a non-pandemic setting.”).) … With these section 3553(a) factors in mind, the Court next considers whether extraordinary and compelling reasons warrant a reduction in Ms. Batista's sentence. 18 U.S.C. § 3582(c)(1)(A). … Even as compared to the experiences of her fellow inmates, moreover, Ms. Batista's experience in custody has been unusually challenging. As explained in the Court's 2020 Order, Ms. Batista served the first several months of her custodial term at the Metropolitan Correctional Center (“MCC”), where, after the arrival of COVID-19, she was subject to 24-hour-per-day lockdowns, experienced a lack of medical and psychiatric care, and suffered “every COVID-19 symptom” without the receipt of medical attention. (2020 Order at 4.) This experience was consistent with that of several other inmates at the MCC who received neither medical care nor any response to their requests for such care for days or weeks during the initial outbreak and lockdown at the MCC. See Fernandez-Rodriguez v. Licon-Vitale, 470 F. Supp. 3d 323, 331-40 (S.D.N.Y. 2020) (summarizing the MDC's response to the initial outbreak of COVID-19); see also id. at 350 (“Rather than having a functioning sick-call system, the MCC admits it entirely failed to review inmates' electronically submitted complaints due to neglect in staffing of the sick-call inbox.”). The initial months after COVID-19's arrival in New York City were a frightening time for all New Yorkers, and were particularly frightening for those in custody. Next, in the summer of 2020, Ms. Batista was designated to FCI Danbury in Connecticut. (Docket entry no. 269.) That facility had just faced “one of the worst outbreaks of COVID-19 in the federal system,” United States v. Somerville, 463 F. Supp. 3d 585, 588 (W.D. Pa. 2020), with many courts and even Attorney General William Barr noting the high levels of infection at the facility early in the pandemic. United States v. Rasberry, No. 2:15-CR-00127-JDL, 2020 WL 3977614, at *2 (D. Me. July 14, 2020) (collecting cases and commentary), reconsideration denied, No. 2:15-CR-00127-JDL, 2021 WL 1583080 (D. Me. Apr. 22, 2021). The situation improved for a time (see 2020 Order at 9-10), but the facility experienced another outbreak in December 2020. See The New York Times, Vulnerable Inmates Left in Prison as Covid Rages, https://www.nytimes.com/2021/02/27/health/coronavirus-prisons-danbury.html (last visited June 6, 2022) (“In December, cases at Danbury rebounded as more than one in 10 inmates at the complex tested positive for the virus.”). In mid-2021, Ms. Batista was transferred to FCI Tallahassee (docket entry no. 438 Ex. A), where the COVID-19 pandemic continued to affect her conditions of incarceration. In the summer and fall of 2021, the Delta variant of COVID-19 arrived at FCI Tallahassee, resulting in, according to Ms. Batista, quarantines, the hospitalization of several inmates, a shortage of testing supplies, and the prison “stop[ing] taking inmates to the hospital because they ran out of correctional staff to perform security at the hospital.” (Docket entry no. 432.) At least two inmates, one of whom lived “across the hall” from Ms. Batista (id.), died, apparently of COVID-19-related complications. … Therefore, as described above and in greater detail in Ms. Batista's submissions, Ms. Batista's experience in custody during the COVID-19 pandemic—at several different facilities, each with its own unique challenges—has been harsher and more punitive than the Court anticipated it would be when Ms. Batista was sentenced, on the eve of the pandemic, in January 2020. … Ms. Batista also proffers in support of her showing of extraordinary and compelling reasons for a reduction in sentence an alleged ongoing mold and asbestos condition at FCI Tallahassee, caused by water leaking into her unit and cell and making Ms. Batista and her fellow inmates ill. (Def. Mem. at 6 (“Water damage in the housing units is so bad that in order to sleep in her top bunk on rainy nights, Samantha has to wear a rain poncho.”); Motion at 2 (“Defendant and about 150 other inmates are ill due to 24/7 exposure to toxic mold and asbestos[.]”).) She also reports that her housing unit has a “roof that has been leaking for over 4 years ... and is full of toxic, black mold [and] full of terminates and roaches” (Motion at 2), and the result of this condition is that she suffers from “sinusitis, skin irritation, eye irritation, and cognitive symptoms.” (Id.) There is no evidence in her medical records that she has reported such symptoms to her facility's medical staff; Ms. Batista claims that she “is in fear of retaliation for reporting this matter.” (Id.) Neither Ms. Batista nor her counsel submit any evidence concerning the mold and/or asbestos conditions at FCI Tallahassee aside from Ms. Batista's own testimony in the form of her own letters to the Court and her counsel's representation of her conditions. However, Ms. Batista is not the only inmate to have reported such conditions. See Francois v. Tallahassee FCI, No. 4:20-CV-00554-MW-MAF, 2021 WL 933243, at *1 (N.D. Fla. Feb. 10, 2021) (“Plaintiff claims there is black mold in the showers and the unit living areas, a roach infestation in the food service areas, asbestos, lead based paint, the water plumbing pipes are not up to code, there is poor air circulation.”), report and recommendation adopted, No. 4:20-CV-554-MW-MAF, 2021 WL 929102 (N.D. Fla. Mar. 11, 2021); United States v. Garcia, No. 3:15-CR-0194-B-1, 2021 WL 3269774, at *3 (N.D. Tex. July 30, 2021) (recounting allegations that “Tallahassee FCI ‘is covered with toxic mold’; ‘is full of termites and roaches’; ‘and possibly [has] asbestos’ ”). Absent any evidence to the contrary, the Court credits Ms. Batista's reports of her own experience in custody in this regard. In the unique circumstances of this case, the nearly twenty-seven months Ms. Batista has served in custody in pandemic conditions at the MCC, FCI Danbury, and FCI Tallahassee, her health conditions, their associated increased risk of severe illness from COVID-19 and the fear those increased risks have caused her, and her reports of ongoing mold and resulting illness at FCI Tallahassee together amount to extraordinary and compelling reasons warranting a reduction in her sentence to reflect the unexpectedly harsh and challenging conditions of her confinement.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the death, on May 22, 2022, of William Russell Mills, 65, of FMC Fort Worth, raising the inmate death toll to 296. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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