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March 16, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 168 (down from 196) Currently positive-testing staff: 364 (down from 386) Recovered inmates currently in the BOP: 54,217 (down from 54,284) Recovered staff: 12,283 (up from 12,256)


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

Rochester FMC: 40 (unchanged)

Sheridan FCI: 10

Marion USP: 7 (down from 10)

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

Central Office HQ: 30 (unchanged)

Florence ADMAX: 28 (unchanged)

Florence - High USP: 26 (unchanged)

System-wide testing results: Presently, BOP has 134,581 federal inmates in BOP-managed institutions and 12,780 in community-based facilities. Today's stats: Completed tests: 128,858 (unchanged) Positive tests: 55,506 (unchanged)


Total vaccine doses administered: 306,514 (up from 306,322)


Case Note: Compassionate release granted where court accepts defendant's unrebutted proffer that BOP is not adequately addressing his multiple health problems...


In U.S. v. THOMAS KOHLER, 2022 WL 780951 (M.D. Fla. Mar. 15, 2022) (Honeywell, J.), even though constrained by 1B1.13, the Middle District of Florida grants compassionate release -- as it has in other cases -- for a defendant suffering from a variety of medical conditions that a doctor opined are not being adequately treated, explaining: "Defendant requests compassionate relief pursuant to the First Step Act due to his serious medical conditions and deteriorating health, which he contends is an extraordinary and compelling circumstance for two reasons: the risk of COVID-19 infection and the inadequate medical care he is receiving in prison. Defendant seeks a reduction of his 151-month sentence to time served. … Defendant is a 64-year-old man who suffers from a host of medical problems: obesity, pre-diabetes, hypertension, hyperlipidemia, an aortic aneurysm, chronic renal stones, an enlarged prostate, depression, likely post-traumatic stress disorder (PTSD), and a history of nearly fatal pancreatitis. Dr. Devra Marcus, a medical doctor with a specialty in infectious diseases, submitted a declaration summarizing her analysis of Defendant's lengthy medical record and providing her expert conclusions on his individualized susceptibility to serious COVID-19 illness and the inadequacy of the medical care Defendant is receiving in prison for his many health conditions. Defendant is vaccinated against COVID-19. Defendant is serving a 151-month sentence at FCI Coleman Medium after a jury found him guilty of one count of conspiracy to distribute or possess with the intent to distribute methamphetamine, 21 U.S.C. §§ 841, 846. … Defendant played a minor role in this conspiracy. Factoring in good time credit, Defendant has served more than 50% of his sentence. … The Government opposes Defendant's motion, arguing, among other things, that COVID-19 on its own is not an extraordinary and compelling circumstance and that the vaccine mitigates Defendant's health risks. Doc. 252. The Government does not rebut the analysis in Dr. Marcus's declaration regarding Defendant's inability to provide self-care in the prison environment and the inadequacy of medical care for his serious health conditions. … The Government is correct that “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone” is insufficient to justify compassionate release, United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (emphasis added), but Defendant is not seeking compassionate release solely on that basis. Rather, Defendant makes two broader arguments that his numerous underlying medical conditions put him at a uniquely heightened risk of serious COVID-19 illness and his medical condition is dire and continues to deteriorate based on the inadequate medical care he is receiving in prison. This Court declines to find that the pandemic, coupled with health conditions, constitute an extraordinary and compelling reason under the catchall “other” reasons category. See United States v. Bryant, 996 F.3d 1243, 1263–65 (11th Cir. 2021). … However, based on the Court's review of the record, argument of counsel, and the unrebutted declaration from Dr. Marcus, the Court finds Defendant has demonstrated extraordinary and compelling circumstances resulting from his serious medical conditions. See U.S.S.G. § 1B1.13 cmt.1(A)(ii)(I). … Defendant submits that “[t]he BOP continuously refuses to evaluate, monitor, and treat” his pre-diabetes, aortic aneurysm, chronic kidney stones, pancreatitis, and enlarged prostate. Doc. 251. This is confirmed by Defendant's medical records and Dr. Marcus's declaration, which evidence the failings in his medical care. Docs. 251-1, 251-2. Defendant's aortic aneurysm is nearing a critical size and according to Defendant, he is not receiving customary sonograms to monitor for the risk of rupture so as to avoid the potential for sudden death. The cause of Defendant's recurring pancreatitis remains unevaluated, later advanced, and required the surgical removal of his gall bladder. He is also in need of basic testing and medical supervision to evaluate and treat his diabetes, enlarged prostate, and chronic kidney stones. It follows that without diagnoses and treatment plans for his medical conditions, Defendant is unable to provide himself the care he needs to control and manage these conditions, since a prisoner's “ability to provide self-care within the environment of the correctional facility is diminished” if he does not “receiv[e] necessary medical follow up and treatment for his ongoing health issues while incarcerated.” United States v. Morse, No. 10-20361-CR, 2020 WL 6534899, at *3 (S.D. Fla. Nov. 3, 2020). The Court finds that Defendant's motion and supporting evidence describe numerous inadequacies in his medical care that put his life at serious risk and support compassionate release. … In granting his motion, the Court has considered the § 3553(a) factors and concluded that Defendant does not pose a danger to the safety of any person or the community and further finds that a reduction in his sentence to time served, with a five-year term of supervised release, is consistent with the Sentencing Commission's policy statements.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new inmate deaths, leaving the inmate death toll at 288. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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