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May 11, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 43 BOP facilities and 8 RRCs

Currently positive-testing inmates: 242 (up from 240) Currently positive-testing staff: 28 (up from 26) Recovered inmates currently in BOP: 43,681 (down from 43,809) Recovered staff: 15,281 (unchanged)


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

Yazoo City Low FCI: 130 (down from 133)

Alderson FPC: 64 (up from 49)

Oklahoma City FTC: 7


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

Forrest City Low FCI: 3 (unchanged)

Estill FCI: 1

Alderson FPC: 1 (unchanged)


System-wide testing results: Presently, BOP has 145,268 federal inmates in BOP-managed institutions and 13,470 in community-based facilities. Today's stats: Completed tests: 128,639 (up from 128,637) Positive tests: 55,287 (up from 55,285)


Total vaccine doses administered: 350,252 (up from 350,240)


Case Note: Court rejects ineffectiveness claim but grants compassionate release for a host of reasons, including defendant’s medical conditions, family struggles in Pakistan, and rehabilitation, as well as fact that his deportation means he will pose no danger to the community...


In U.S. v. Khan, No. 18-CR-830 (VSB), 2023 WL 2911021 (S.D.N.Y. Apr. 11, 2023) (Broderick, J), the court, though refusing to consider ineffective assistance claims, nonetheless grants compassionate release, finding that defendant’s medical conditions, family struggles in Pakistan, and rehabilitation are extraordinary and compelling, and that his non-citizen status prevents him from earning earned time credit, will result in post-prison ICE custody, and will lead to his removal, effectively precluding him from posing a danger to the community, explaining: "On April 23, 2021, I sentenced Khan to 64 months’ imprisonment on each count to run concurrently, and three years of supervised release on each count to run concurrently. (See Doc. 58; Tr. 37:14-19.) In reaching a determination that 64 months was the appropriate sentence for Khan I considered, among other things, Khan's (1) conditions of confinement during the COVID-19 pandemic, (2) health, (3) attempts to cooperate, and (4) family circumstances. (See Tr. 35–37.) Khan subsequently filed an appeal of his sentencing. Khan is currently serving his sentence and is scheduled to be released on September 22, 2023. … As an initial matter, Khan's arguments regarding purported legal errors during his guilty plea and sentencing do not provide grounds for compassionate release. … [T]he Court of Appeals has recently clarified that “claims regarding the validity of [Defendant's] conviction and sentence ... [are] not a proper basis” for a compassionate release motion. United States v. Jacques, Nos. 20-3276, 21-1277, 2022 WL 894695, at *2 (2d Cir. Mar. 28, 2022) (joining other Circuits who have ruled the same). … Khan suffers from a litany of health conditions, including: iridocyclitis, which has impaired his vision; an eye infection requiring specialist treatment; hemorrhaging in the anus and rectum; chronic rhinitis; chronic periodontitis; a hole in his ear requiring surgery; back pain; high cholesterol; and chronic gastro-intestinal issues. He was also diagnosed as HLA-B27+, suggesting a “greater-than-average risk for developing or having certain autoimmune disorders.” HLA-B27 Antigen MOUNT SINAI HEALTH SYSTEM, https://www.mountsinai.org/health-library/tests/hla-b27-antigen (last visited Mar 31, 2023). He has also been diagnosed with major depressive disorder and anxiety disorder, and takes medication for these conditions. In the Second Circuit, and other districts, the COVID-19 pandemic has served as a significant basis for granting compassionate release motions. See, e.g., Brooker, 976 F.3d at 238 (collecting cases). Because Khan suffers from high cholesterol and possible auto-immune issues, he may have an increased risk of severe illness if he were to contract the virus. ... I will consider his need to care for his wife and children, his ailing mother, and his mentally ill brothers in Pakistan. In his supplemental letter motion for compassionate release, Khan submitted several letters from his family indicating the family's dire situation. Khan's wife does not work, and they have an infant son that she struggles to support. His mother is seriously ill and requires multiple visits to the hospital a week, and three of his brothers are drug addicted and mentally ill. These circumstances have left his family in financial crisis. Khan's wife and mother have taken out personal loans to support the family that they cannot repay, and have exhausted their lines of credit. (Doc. 71.) Lastly, Khan has demonstrated rehabilitation. He has completed 35 educational courses in a variety of subject areas, even though as a noncitizen he is ineligible from receiving time credits under the First Step Act. … I now turn to considering the § 3553(a) factors to analyze whether they override Khan's extraordinary and compelling circumstances warranting compassionate release. I find that they do not. … [W]ith the exception of one violation, Khan has a clean disciplinary record in prison. In the past three years, Khan has only committed one minor disciplinary infraction for engaging in a three-way call with family members, for which he lost 27 days of good-time and email privileges for three months. … Further, Khan has served 47 months of his sentence and is scheduled to be released on September 22, 2023. It is likely that he will spend several months in ICE custody pending his removal to Pakistan. I also note that Khan cannot earn time-credits under the First Step Act and does not qualify for early-release to a halfway house or community-based programs like home-confinement.8 See United States v. Bennett, No. 05 CR. 1192-1 (NRB), 2020 WL 2539077, at *2 (S.D.N.Y. May 18, 2020). Given these unique circumstances, I do not believe granting a 5-month reduction in his sentence on compassionate release grounds will undermine the goals of sentencing under § 3553(a), nor create unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.”

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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