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March 17, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG




Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 75 BOP facilities and 8 RRCs

Currently positive-testing inmates: 296 (down from 308) Currently positive-testing staff: 46 (down from 51) Recovered inmates currently in BOP: 45,074 (up from 45,063) Recovered staff: 15,214 (up from 15,208)


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

Leavenworth USP: 60 (unchanged)

Allenwood FCI: 24 (unchanged)

Carswell FMC: 24 (up from 22)


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

Terminal Island FCI: 6 (unchanged)

Devens FMC: 4 (up from 3)

Grand Prairie: 3


System-wide testing results: Presently, BOP has 145,123 federal inmates in BOP-managed institutions and 13,152 in community-based facilities. Today's stats: Completed tests: 128,658 (unchanged) Positive tests: 55,306 (unchanged)


Total vaccine doses administered: 349,007 (up from 348,984)


Case Note: Although ordinarily waived, the Government can raise exhaustion for the first time on direct appeal where district court denied CR without giving Government chance to respond...


In U.S. v. Williams, No. 22-1981, 2023 WL 2471366 (7th Cir. Mar. 13, 2023) (published) (Easterbrook, J.) the Seventh Circuit held that, although ordinarily waived, the Government can raise exhaustion for the first time on direct appeal where district court denied CR without giving Government chance to respond, explaining: "The United States never contended in the district court that Williams had failed to exhaust administrative opportunities on subjects other than the effect of Ruth, and perhaps it is too late to raise this argument now. There's a good reason, however, why the United States did not make this argument—or any other—in the district court. The judge summarily denied Williams's application the day after the court received it. Williams immediately appealed rather than seeking reconsideration. As a result, its brief on appeal was the United States' first opportunity to contend that Ruth is the only potential ground of relief that Williams has preserved. A litigant that presents an affirmative defense at its earliest opportunity cannot be blamed for undue delay. One circuit has held otherwise. United States v. Miller, 2021 U.S. App. LEXIS 26630 (6th Cir. Sept. 2, 2021). But a different court of appeals has held that the United States may assert non-exhaustion in the court of appeals when it lacked an opportunity to do so in the district court. See United States v. Purify, 2021 U.S. App. LEXIS 35783 (10th Cir. Dec. 3, 2021). Both the Sixth Circuit and the Tenth Circuit thought the matter so straightforward that they resolved it in nonprecedential orders. It seems simple to us, too, and we side with the Tenth Circuit. As far as we can see, none of the courts of appeals has addressed this subject in a published, precedential opinion. None, that is, until today. We hold that a defense of failure to exhaust under § 3582(c)(1)(A) is timely if raised by the United States at its first opportunity, even if that opportunity does not come until briefing on appeal.”)


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 314. Eleven of the inmates died while on home confinement. Staff deaths remain at

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