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March 21, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 80 BOP facilities and 8 RRCs

Currently positive-testing inmates: 311 (up from 301) Currently positive-testing staff: 47 (up from 46) Recovered inmates currently in BOP: 45,041 (down from 45,054) Recovered staff: 15,217 (up from 15,214)


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

Leavenworth USP: 58 (unchanged)

Allenwood FCI: 31 (up from 24)

Carswell FMC: 24 (unchanged)


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

Terminal Island FCI: 6 (unchanged)

Devens FMC: 4 (unchanged)

Grand Prairie: 3 (unchanged)


System-wide testing results: Presently, BOP has 145,161 federal inmates in BOP-managed institutions and 12,999 in community-based facilities. Today's stats: Completed tests: 128,655 (up from 128,654) Positive tests: 55,303 (up from 55,302)


Total vaccine doses administered: 349,054 (up from 349,049)


Case Note: Courts considering compassionate release motion must look at circumstances cumulatively to determine whether they meet threshold for relief...


In U.S. v. Vaughn, No. 22-2427, 2023 WL 2522728 (7th Cir. Mar. 15, 2023) (published) (Easterbrook, J.), the court, observing that courts may aggregate unrelated factors to find extraordinary and compelling circumstances, explains: “Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally.United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022);United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?”United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See alsoUnited States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).


The Sixth Circuit's rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold—to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” This was “mistaken in light of our precedents.” The “totality of the circumstances” requires courts to consider “the whole picture.” Our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. ... The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 588 (2018) (internal citations omitted). … If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner's situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10%—each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners. We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review. See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020). Our point, rather, is that no matter how the thresh-old is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not. This leads us to disagree with the Sixth Circuit's approach. This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts. The district judge refused to consider the effect of [United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (vacating sentence because Illinois conviction for possession with intent to deliver cocaine was not predicate “felony drug offense” within meaning of federal statute increasing mandatory minimum sentence)] and properly so under this circuit's precedent. All of the other considerations that Vaughn advanced were taken into account, and we share the district judge's view that they are generic. Individually and collectively, they fall short of “extraordinary and compelling reasons”—or, at least, the district judge did not commit clear error or abuse her discretion in so ruling.”


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 7.

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