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November 16, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 123 (down from 134) Currently positive-testing staff: 259 (up from 255) Recovered inmates: 42,411 (down from 42,428) Recovered staff: 8,400 (up from 8,384)


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

Terre Haute FCI: 29 (down from 30)

Forrest City Medium FCI: 9 (down from 10)

Fort Dix FCI: 7

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

Central Office HQ: 16 (up from 15)

Florence ADMAX USP: 15 (unchanged)

Carswell FMC: 13 (unchanged)

System-wide testing results: Presently, BOP has 133,747 federal inmates in BOP-managed institutions and 14,709 in community-based facilities. Today's stats: Completed tests: 125,197 (up from 125,151) Positive tests: 42,115 (down from 42,144)


Total vaccine doses administered: 248,907 (unchanged)

Case Note: Full vaccination does not preclude finding COVID-19-related extraordinary and compelling circumstances in particular case...


In U.S. v. PAUL MOE, 2021 WL 5277202 (D.N.J. Nov. 12, 2021) (Hayden, J.), the court agreed a vaccinated inmate can show extraordinary and compelling circumstances grounded in fears stemming from COVID-19, in a case in which the inmate was released 3 months into his 24 month sentence, explaining: "In October 2017, a jury convicted Moe of 13 counts of wire fraud under 18 U.S.C. § 1343 based on the submission of false time sheets for specific payroll periods, and one count of conspiracy to commit wire fraud under 18 U.S.C. § 1349. He was sentenced to a custodial term of 24 months on March 26, 2018, and remained on supervised release pending the outcome of his timely appeal. On April 17, 2020, the Third Circuit affirmed his conviction. … Moe surrendered on August 16, 2021, and is currently housed in the minimum-security camp at FCI Fort Dix. He was fully vaccinated with the Moderna COVID-19 vaccine prior to his surrender, and the medical records submitted to the Court reflect that he reported to prison medical staff that he tested positive for COVID-19 in January 2021. … Moe cites several medical conditions as warranting the conclusion that in light of the COVID-19 pandemic, extraordinary and compelling reasons exist for his requested reduction in sentence. The government counters, however, that Moe's vaccinated status takes a finding of “extraordinary and compelling circumstances” off the table altogether: “[F]or inoculated inmates ... the risks of COVID-19 now are removed from a proper § 3582(c) analysis.” … The Court is persuaded that none of the cited decisions states that vaccination renders the risk of COVID-19 nonexistent. Instead, they concluded that the risks posed by the virus are reduced if the defendant is vaccinated and that on the specific facts of record, the defendants had not met the “extraordinary and compelling” standard. … Hannigan illustrates the case law's fact-specific approach to risk post-vaccination. While recognizing that the vaccine reduced the defendant's risk of serious illness or death from a COVID-19 infection to such a degree that his health problems were no longer “sufficiently extraordinary and compelling to warrant compassionate release,” the court also acknowledged that “the COVID-19 situation is always-changing and ... it is unclear how emerging variants will alter vaccine efficacy over time.” Hannigan, 2021 WL 1599707, at *5. … Likewise in Jefferson, in which the Third Circuit affirmed the denial of relief to a vaccinated, previously-infected defendant because he had not shown that he, personally or at the particular institution of confinement, was at an increased risk of infection and the general existence of COVID-19 was insufficiently specific. 2021 WL 4279626, at *2. The panel did, however, acknowledge that defendant's “fears of reinfection are not completely unfounded, considering the multitude of unknowns that the Coronavirus pandemic has unleashed.” Id. The government's proposed approach reads the nuances and qualifying language out of the foregoing cases. Undoubtedly, vaccination is a significant consideration, and in some circumstances where a defendant refuses to get vaccinated, it may effectively be dispositive. But the decisional law also accounts for situations in which a defendant establishes that he or she remains at risk notwithstanding vaccination. Here, Moe has shown that he remains particularly vulnerable to COVID-19, notwithstanding his vaccination and prior infection. Along with his age, 70, and obesity, both of which place him at increased risk and may decrease the efficacy of the vaccine (See Moving Br. 18-20; Centers for Disease Control and Prevention, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Nov. 12, 2021) …. Moe cites his considerable ongoing, chronic medical problems, including diabetes, for which he must take insulin and oral medication twice daily, chronic obstructive pulmonary disease (COPD), severe sleep apnea for which he is prescribed a CPAP machine, hypertension, obesity, and chronic fatigue.7 For at least several weeks after he reported to FCI Fort Dix, he was not given access to multiple medications and his CPAP machine, and if he is required to return to quarantine, he will again be deprived of his CPAP machine. (Moving Br. 4-5; D.E. 117-14, Def. Ex. G; D.E. 117-16, Def. Ex. I; D.E. 122-6, Gov't Ex. A, Sealed Medical Records at 001, 002; D.E. 123-1, Ex. 1 to Reply (“BOP guidance does not permit inmates to utilize CPAP machines while in quarantine due to COVID-19 restrictions.”).) This deprivation of his ability while incarcerated to employ the prescribed medication and strategies for managing his serious, chronic conditions substantially deprives him of the ability to care for himself, both in the normal course and in particular in the event of a lockdown or quarantine. Nor is there any indication that his medical conditions will resolve; to contrary, his diabetes, in particular, has worsened since he was sentenced in 2018. … Moreover, FCI Fort Dix reports seven current inmate cases of COVID-19 infection (the fourth highest in the country among BOP facilities) and five current staff cases – up from zero inmate cases and five staff cases as of September 23, 2021, when Moe filed his moving brief. … he institutional disruptions to his receipt of necessary medications and therapies, his high-risk condition to begin with (which is mitigated, but not eliminated, by his vaccinated, COVID-recovered status), and the prospect that he would be again deprived of a CPAP machine in the event of an exposure to COVID-19 (perversely, at a time when he would presumably most need it), combined with the now-increased risk posed by the conditions at FCI Fort Dix, amount to an “extraordinary and compelling” reason for the Court to consider a reduction in sentence. … The cases in this Circuit accept that vaccines, and potentially prior infection, reduce risk, but they assuredly do not stand for the proposition that no risk remains for vaccinated inmates. On this record and having considered that authority, the Court finds that Moe has established extraordinary and compelling circumstances that make him eligible for relief, if he can also show that the § 3553(a) factors also favor that course. … At this point, Moe has served approximately three months of his 24-month term; a sizable percentage of his original sentence thus remains. Nevertheless, his offense, while worthy of punishment, is magnitudes less severe than the conduct underlying the denials of relief in the many cases the government cites, which generally drew correspondingly lengthy sentences commensurate with that severity.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatalities. Total inmate COVID-related deaths remain at 266. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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