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June 27, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 307 (up from 230) Currently positive-testing staff: 329 (up from 324) Recovered inmates currently in the BOP: 50,348 (down from 50,402) Recovered staff: 12,993 (up from 12,985)


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

SeaTac FDC: 97 (up from 32)

Marianna FCI: 41 (up from 40)

Petersburg Low FCI: 22 (down from 23)

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

Central Headquarters: 35 (unchanged)

Rochester FMC: 16 (unchanged)

Honolulu FDC: 16 (up from 14)

System-wide testing results: Presently, BOP has 140,313 federal inmates in BOP-managed institutions and 13,693 in community-based facilities. Today's stats: Completed tests: 128,706 (down from 128,717) Positive tests: 55,354 (down from 55,366)


Total vaccine doses administered: 322,440 (up from 322,196)


Case Note:


In U.S. v. TIMOTHY DEFOGGI, 2022 WL 2222916 (D. Neb. June 21, 2022) (Bataillon, J.), in an attempt to undo a compassionate release grant, the Gov’t threw everything at the wall in its reconsideration motion, but the court didn’t buy it, explaining: "The United States asks the Court to reconsider its order granting DeFoggi compassionate release. … First, the United States argues the Court entered its order granting compassionate release “without following the procedure implemented during the pandemic for Covid-based compassionate release motions.” Filing No. 417 at 1. In support of this argument, the government submits a document entitled “Initial Review of Pro Se Motions for Compassionate Release.” Filing No. 419-1 at 1–8. This document states it “outlines a uniform approach to initially reviewing pro se motions for compassionate release ... premised on the COVID-19 pandemic” and provides that the Court should appoint the Federal Public Defender and set a briefing schedule if it determines the motion presents a colorable claim. Filing No. 419-1 at 1–2. The government does not explain the provenance of this document or why it believes the document governs the procedures in this case, but argues the Court erred by not appointing the federal defender or ordering the government to respond. The document at Filing No. 419-1 is not a General Order of this Court, nor was it filed as an order in DeFoggi's case. Thus, this proposed protocol is not binding upon the Court nor did the Court commit error in failing to follow the procedures set forth therein. Second, the government's argument that the Court was without authority to enter its compassionate release order is premised upon U.S.S.G. § 1B1.13 being an “applicable policy statement” that limits the Court's authority to grant compassionate release to certain circumstances which it argues are not present here. See Filing No. 417 at 6–8. As thoroughly explained in the Court's order, the policy statement at U.S.S.G. § 1B1.13 has not been amended since passage of the First Step Act and thus states that it applies only to a request for compassionate release made “[u]pon motion of the Director of the Bureau of Prisons.” The majority of courts that have considered § 1B1.13 have concluded it does not constitute an “applicable policy statement” under 18 U.S.C. § 3582(c)(1)(A) for purposes of a compassionate-release motion made by a defendant rather than the BOP director. … Lastly, the Court concludes it did not err in finding compassionate release was warranted based upon extraordinary and compelling circumstances and the balancing of the 18 U.S.C. § 3553(a) factors. The government argues the Court did not consider DeFoggi's “uniquely serious” conduct and did not have information that DeFoggi is fully vaccinated and boosted against COVID-19. Filing No. 417 at 8–14. However, the Court fully considered all of the evidence and argument the government made at DeFoggi's two sentencing hearings and during his two appeals, and the government does not argue it has any new evidence or argument regarding the nature of DeFoggi's conduct. … Imposing an above-guideline, stacked sentence on top of the already-excessive sentencing scheme rendered DeFoggi's sentence unduly harsh and disparate in this case. Furthermore, any knowledge about DeFoggi's vaccination status would not change the Court's calculation of factors in favor of granting compassionate release. The Court's order granting DeFoggi compassionate release was not based solely on the risk of COVID-19, but upon the combination of a large sentencing disparity together with DeFoggi's risk for COVID-19 and rehabilitation. Filing No. 413 at 7. The Court also noted that “emerging research emphasizes the risk of so-called ‘long COVID’ and shows an on-going threat posed by new variants such as the Omicron strain which better evade prior immunity, meaning DeFoggi remains at risk of reinfection.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified three additional COVID-related inmate deaths, of Larry Clinton Buckels, 58 (FCI Florence Satellite Camp); Eugene Lamont Fried, 50 (FCI Bennettsville); and Jessie Castro Adams, 69, FCI Otisville, on January 6, October 19, and March 17, 2022, respectively, raising the inmate death toll to 299. The fact that these deaths occurred months ago but were just reported raises the question whether there are many more unreported fatalities. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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