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March 31, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 72 BOP facilities and 4 RRCs

Currently positive-testing inmates: 175 (up from 173) Currently positive-testing staff: 43 (down from 45) Recovered inmates currently in BOP: 44,875 (down 44,983) Recovered staff: 15,235 (up from 15,229)


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

McKean FCI: 15 (unchanged)

Yazoo City FCI: 15 (up from 14)

Lexington FMC: 11 (down from 12)


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

Terminal Island FCI: 6 (unchanged)

Honolulu FCI: 3 (unchanged)

Bastrop FCI: 2


System-wide testing results: Presently, BOP has 145,302 federal inmates in BOP-managed institutions and 12,990 in community-based facilities. Today's stats: Completed tests: 128,651 (unchanged) Positive tests: 55,299 (unchanged)


Total vaccine doses administered: 349,933 (up from 349,307)


Case Note: 18-month sentence reduction justified by defendant's mental health deterioration, conditions of confinement...


In U.S. v. ANGEL OTERO, Defendant. ANGEL OTERO, Movant,, No. 15 CR. 608-10 (KPF), 2023 WL 2674745, at *11 (S.D.N.Y. Mar. 29, 2023) (Failla, J.), the court found that although the BOP could not be said to have disregarded mental health conditions of which they were unaware, those conditions nonetheless existed, and exacerbated defendant's difficulty serving a sentence during COVID, supporting CR, explaining: "Mr. Otero was transferred to FCI Oxford. During a screening interview on December 5, 2022, Mr. Otero responded in the negative to questions asking about current mental health complaints and both current and historical suicidal ideations; at that interview, Mr. Otero presented as “appropriate to content” in affect. (December 5, 2022 Health Screen Report). Psychology Services personnel at FCI Oxford subsequently concluded after reviewing Mr. Otero's BOP records that “no clinical indications are present which warrant a clinical interview.” (December 8, 2022 Transfer Intake Screening Report).The defense argues that Mr. Otero's reticence does not matter in light of the Court's explicit directive regarding mental health treatment, and it is true that the Court expects the BOP to comply with any order it issues. However, it remains that case that (i) the Court was not made aware of any mental health treatment deficiencies until the instant motion was filed many years after Mr. Otero's sentencing; (ii) BOP clinicians who have met with Mr. Otero have not perceived a need for more intensive mental health treatment; and (iii) the person best situated to advise the BOP of acute mental health issues was and remains Mr. Otero. The proffered deterioration of Mr. Otero's mental health does, however, dovetail with another concern this Court has recognized in prior cases as an extraordinary and compelling circumstance, namely, that the conditions of Mr. Otero's confinement during the COVID-19 pandemic have resulted in a sentence that was more severe than this Court could have contemplated when originally sentencing him in January 2017. While the Court sought to balance carefully the information then available, it could not have foreseen the restrictions that would be precipitated by the pandemic (including lockdowns and curtailment of facility programming and visitation), nor the public health risks faced by individuals like Mr. Otero who have spent the entirety of the pandemic in a carceral setting, nor the length of time over which these risks and deprivations would persist. And in a prior decision resolving a compassionate release motion, the Court recognized “that courts reviewing motions for sentence modifications have considered the extent to which onerous lockdowns and restrictions imposed by correctional facilities attempting to control the spread of the virus have made sentences ‘harsher and more punitive than would otherwise have been the case.’ ” United States v. Hatcher, No. 18 Cr. 454-10 (KPF), 2021 WL 1535310, at *3 (S.D.N.Y. Apr. 19, 2021) (quoting United States v. Rodriguez, 492 F. Supp. 3d 306, 311 (S.D.N.Y. 2020)); see also United States v. Mcrae, No. 17 Cr. 643 (PAE), 2021 WL 142277, at *5 (S.D.N.Y. Jan. 15, 2021) (“[A] day spent in prison under extreme lockdown and in fear of contracting a deadly virus exacts a price on a prisoner beyond that imposed by an ordinary day in prison. While not intended as punishment, incarceration in such conditions is, unavoidably, more punishing.”). In short, the Court has previously concluded, and concludes here, that pandemic-induced conditions of confinement can constitute “extraordinary and compelling” circumstances warranting compassionate release for certain defendants who have (i) served long sentences and (ii) been detained for the entirety of the pandemic. Here, there can be no serious dispute that Mr. Otero has experienced harsher conditions of confinement than could have been anticipated, and the Court finds that the length and totality of these conditions amount to extraordinary and compelling circumstances under Section 3582(c)(1)(A)(i). It therefore proceeds to consider whether relief in the form of a reduced sentence is warranted in this case in light of the factors set forth in 18 U.S.C. § 3553(a). A careful analysis of the Section 3553(a) factors counsels both in favor of, and against, a sentence reduction. Mr. Otero's offense conduct was egregious by any measure, and the violence he employed places him in the upper echelon of criminal defendants sentenced by the Court. It is not an exaggeration to state that Mr. Otero and the Taylor Avenue Crew terrorized a Bronx neighborhood for several years. The Court also notes that Mr. Otero had a prior arrest in March 2012 in which he was found to be in possession of crack cocaine and a loaded firearm. (PSR ¶ 50). While incarcerated, Mr. Otero has been the subject of four disciplinary incidents, though the Court agrees with the defense that the incidents themselves are comparatively minor and that the most recent one occurred more than three years ago. (Inmate Discipline Data Report). As countervailing facts, the Court observes that Mr. Otero has been detained for his offense conduct since September 2015. His BOP records reflect efforts to take advantage of the programs available at each of the facilities in which he has been housed. (See, e.g., Dkt. #634 at 4 (discussing participation in RDAP and Life Connections programs)). And even if they may have been motivated by his current compassionate release motion, the Court acknowledges the mental health treatment that Mr. Otero has received between July 2021 and the present. After considering all of the Section 3553(a) factors, and after considering as well Mr. Otero's BOP records and information concerning the conditions of his confinement, the Court grants Mr. Otero's motion in part, by reducing his sentence by 18 months.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified a COVID-related death that occurred last December 26, that of George Thacker, 59, of FCI Edgefield. The total number of inmate COVID-related deaths remains 315. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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