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May 5, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 165 (up from 149) Currently positive-testing staff: 169 (up from 158) Recovered inmates currently in the BOP: 52,068 (down from 52,175) Recovered staff: 12,607 (up from 12,602)


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

Lompoc FCI: 40 (up from 39)

Allenwood USP: 28 (unchanged)

Victorville Medium II FCI: 7 (unchanged)

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

Rochester FMC: 20 (up from 18)

Central Office HQ: 18 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 137,875 federal inmates in BOP-managed institutions and 13,430 in community-based facilities. Today's stats: Completed tests: 128,741 (up from 128,740) Positive tests: 55,389 (up from 55,388)


Total vaccine doses administered: 315,502 (up from 315,182)


News Note: No vax? No release...


In U.S. v. DAVINA CLAY, Defendant., No. CR 2:18-1282-10, 2022 WL 1321010, at *3 (S.D. Tex. May 2, 2022) (Rainey, J.), the court string cites cases where courts deny CR based on petitioner’s refusal to get vaccinated and does the same here, explaining: "Defendant was offered the Pfizer-BioNTech COVID-19 vaccine on February 22, 2021, but she declined vaccination. She told BOP medical staff that she was “afraid because she has an autoimmune problem and is afraid that will get worse if she takes the vaccine.” D.E. 651-2, p. 15. In a letter supplementing her current motion, she explains that she declined vaccination because of “cardiac issues and palpitations. I am taking medication for this issue and after a conversation with my doctor I decided to decline the vaccine just to be safe. I am concerned that the vaccine may exacerbate by heart problems.” D.E. 650. Defendant, however, has “failed to provide any evidence that it is medically inadvisable for [her] to receive a COVID-19 vaccination.” United States v. Cain, 2021 WL 2269974, at *6 (D. Me. June 3, 2021) (rejecting the defendant's excuses for refusing vaccination and noting that he “ignores the risks of not being vaccinated and the benefit of vaccination. CDC guidance affirms that the COVID-19 vaccines are ‘safe and effective.’ ”). To the contrary, records dated March 10, 2021, indicate that Defendant and her physician “discussed [the] importance of taking the COVID vaccine.” D.E. 647-4, p. 2 (emphasis added). “Courts now widely recognize that a refusal to take preventative measures to protect oneself from COVID-19 undermines any assertion that the risk of viral infection constitutes an extraordinary and compelling reason justifying release.” United States v. Downer, 2021 WL 2401236, at *2 (D. Md. June 11, 2021). “While the vaccine is not 100% effective at preventing COVID-19 infection, it reduces the risk of serious illness or death from COVID-19, even in patients with high-risk medical conditions. For this reason, ‘the glaring consensus among district courts is that refusal of a COVID-19 vaccine subverts a defendant's compassionate release motion.’ ” United States v. Tobin, 2021 WL 3913584, at *3 (S.D. Tex. Aug. 31, 2021) (Tipton, J.) (quoting United States v. Sawyers, 2021 WL 2581412, at *4 (C.D. Cal. June 22, 2021)).2 The Court adopts this reasoning and finds that Defendant may not manufacture her own “extraordinary and compelling” circumstances by refusing to be vaccinated against COVID-19. “While [s]he is certainly well within [her] rights to make [her] own decisions as to [her] own medical care, the Court can reach no other conclusion but that if Defendant had any serious concerns or fears for [her] health, safety and well-being as a consequence of the coronavirus, [s]he would have availed [her]self of the COVID-19 vaccine which was offered.” United States v. Cooper, 2021 WL 1629258, at *7 (E.D. Pa. Apr. 27, 2021); see also United States v. Gianelli, 2021 WL 1340970 (D. Mass. Apr. 9, 2021) (“Although defendant has the right to refuse medical treatment, this Court will not reward such refusal to protect himself with a get-out-of-jail card.”).”




Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new inmate fatalities, leaving the total at 294. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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