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May 1, 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: 188 Currently positive-testing staff: 28 Recovered inmates currently in BOP: 44,057 Recovered staff: 15,272


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

Yazoo City Low FCI: 103

Yazoo City Medium FCI: 14

Dublin FCI: 8


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

Forrest City Low FCI: 3

Central Office HQ: 2

Alderson FPC: 1


System-wide testing results: Presently, BOP has 145,473 federal inmates in BOP-managed institutions and 13,525 in community-based facilities. Today's stats: Completed tests: 128,639 Positive tests: 55,287


Total vaccine doses administered: 350,076


Case Note: Exhaustion excused as futile and compassionate release justified on several grounds including COVID conditions of confinement and BOP's failure to enroll defendant in needed drug program...


In U.S. v. DIVINE JOHNSON, Defendant., No. 16-CR-319 (NGG), 2023 WL 3093617 (E.D.N.Y. Apr. 26, 2023) (Garaufis, J.), court waives exhaustion as futile and reduces defendant’s sentence to time served because his period of incarceration has been more punitive than anticipated due to COVID and BOP has been unwilling to enroll him in needed drug program, explaining: "Johnson notes in his motion that he is “reaching out to the BOP and the [c]ourts for judicial intervention.” (Mot. at 5.) The court is sympathetic to the fact that in so doing, Johnson appears to have thought he was following the correct procedure. Further, Johnson has been moved from facility to facility, including in the past year, [court lists 4 facilities, 3 of which are state-run] which likely made it more difficult to properly request assistance within the BOP. Nevertheless, courts in this Circuit have held that a defendant's statement attesting to exhaustion, on its own, is insufficient to satisfy this requirement. … This court elects to join numerous other district courts within this Circuit in finding that Washington v. Barr applies in the compassionate release context. … Johnson, a pro se litigant, appears unaware of the need to exhaust the First Step Act's administrative exhaustion requirement or argue for waiver. In the interest of justice, this court assesses whether waiver might be appropriate. Johnson is eligible for a waiver of administrative exhaustion if either (1) exhaustion “would be futile,” Washington, 925 F.3d at 118; (2) the “administrative process would be incapable of granting adequate relief,” id. at 119; or (3) “pursuing agency review would subject [Johnson] to undue prejudice.” Id. While the threat of COVID-19—a frequent consideration in waivers to date—does not on its own justify waiver here, Johnson is eligible for waiver of administrative exhaustion under all three exceptions for other reasons. … While the threat of COVID-19 is insufficient to waive administrative exhaustion, requiring Johnson to request assistance from the BOP before being heard by this court would nonetheless be futile and unlikely to provide adequate relief. Considering the 30-day waiting period, the three months the government took to respond to his first motion9 and the additional time the court would need to review the parties’ new submissions, requiring Johnson to exhaust administrative remedies would likely take upwards of four months. Yet empirical evidence shows the BOP will almost certainly either deny or fail to respond to his request to make a motion, rendering this four-plus months-long exercise purely academic. With only six to ten months remaining on Johnson's custodial sentence, and a petition before the court in which the relief sought is the reduction of that very sentence, requiring Johnson to request assistance from the BOP would do little more than remove this court's ability to grant all or much of that relief. To assess the likely outcome of a defendant going through the administrative process before filing a compassionate release motion, this court endeavored to determine how frequently the BOP files compassionate release motions on behalf of incarcerated defendants. … Though the BOP did not to move for compassionate release in a single one of these cases, courts granted the defendant's motion in full or in part in 65, or 31%, of the 210 cases in this analysis. (See Appendix A.) This analysis informs the court that defendants virtually never succeed in obtaining BOP assistance in moving for compassionate release, even in the approximately 31% of cases in which the defendants ultimately meet the criteria for sentence reduction. … The BOP has simply declined to pursue compassionate release requests, regardless of how urgent or meritorious they are. Any bid Johnson might bring for the BOP to bring such a motion on his behalf would thus almost certainly be in vain. … The BOP maintains a critical and powerful role as first gatekeeper for compassionate release motions. The BOP's involvement in this manner should be a good thing. Its proximity to and supervision over incarcerated individuals means that it is, in theory, best placed to evaluate their eligibility for sentence reduction. Yet the BOP has failed in its responsibility to evaluate compassionate release requests—even for the approximately 30% of inmates whose motions courts ultimately found to be meritorious. Instead, the BOP has abdicated the responsibility of bringing compassionate release motions to defendants who generally lack formal or informal legal training, all while retaining the ability to impede and delay such defendants’ ability to be heard. … The court finds that while the current threat from COVID-19 is insufficient to warrant compassionate release, Johnson's incarceration for the entirety of the pandemic and inability to access vital substance abuse and mental health treatment while frequently being moved from facility to facility has rendered his sentence more punitive than originally intended. Thus, a sentence reduction is appropriate in his case. … This court has recognized that detention during the pandemic is “essentially the equivalent of either time and a half or two times what would ordinarily be served.” … His frequent transfers from one facility to another and awareness of his own susceptibility to severe illness means that his incarceration was likely even more difficult than that of the average inmate residing in a single facility through the pandemic. Additionally, Johnson “lost a lot of family members” to the virus, (Mot. at 1), and his incarceration prevented him from being with family through these losses. The conditions of Johnson's confinement have been further worsened by the BOP's apparent failure to provide him with mental health services and substance abuse treatment, the latter of which was specifically requested by this court at the time of his sentencing. … As noted in his Pre-Sentencing Investigation Report, Johnson has a long history of addiction and mental health issues. Johnson had a very difficult upbringing, in no small part because of his mother's drug abuse and untimely death due to complications from HIV, a gunshot wound, and other ailments when Johnson was 15 years old. (PSR ¶¶ 39, 44.) According to family members, her death caused Johnson to take a downward turn and ultimately develop a substance use disorder. (Id. ¶ 42.) Additionally, Johnson was diagnosed with PTSD in 2011 and meets the criteria for borderline personality disorder. (Id. ¶¶ 55-56.) He spent multiple years prior to his incarceration homeless, during which time he undertook multiple unfortunately unsuccessful attempts at rehabilitation for his drug addiction. (Id. ¶¶ 42, 44, 60-64.) Indeed, his addiction and its accompanying financial debts and costs appear to have been his motive for participating in the crimes for which he is currently incarcerated. … Unfortunately, it appears that Johnson has not received the treatment envisioned by the court, despite his lengthy incarceration. BOP cannot force inmates to enter treatment. It can, however, make treatment available where inmates seek it out of their own volition and is required to do so “for each prisoner the [BOP] determines has a treatable condition of substance addiction or abuse.” 18 U.S.C. § 3621(b)(5). Yet, notwithstanding the court's request that he be enrolled in a treatment program, indications that he continues to struggle with addiction, a lengthy seven-year incarceration, and, importantly, his own attempts to receive treatment (including signing up for the MAT program), the Government has informed the court that Johnson “has not yet completed a drug treatment program.” (Second Gov't Letter at 1.) Instead, he remains “in the screening process to determine his need for MAT treatment,” (id. at 2), despite a well-documented medical history of long-term addiction problems, multiple attempts at rehabilitation, and most recently, “opioid use and withdrawal in 2022, as well as the use of [non-prescribed] suboxone.”28 (PSR ¶¶ 59-64; First Gov't Letter at 1.) While all signs indicate that Johnson continues to be in great need of MAT or other intensive treatment, it remains unclear if or when he will receive that treatment. As a result of this failure and his above-discussed incarceration for the entirety of the COVID-19 pandemic, Johnson's sentence has been more punitive than originally intended. This constitutes extraordinary and compelling reasons for a sentence reduction.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The total number of inmate COVID-related deaths is 317. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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