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November 30, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 85 BOP facilities and 12 RRCs

Currently positive-testing inmates: 236 (down from 239) Currently positive-testing staff: 198 (down from 203) Recovered inmates currently in the BOP: 47,794 (down from 47,812) Recovered staff: 14,594 (up from 14,580)


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

Leaventhworth: 38

Carswell FMC: 36 (up from 17)

Allenwood Low FCI: 21


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

Central Office HQ: 58 (unchanged)

Western RO: 7 (unchanged)

Lompoc FCI: 6


System-wide testing results: Presently, BOP has 144,753 federal inmates in BOP-managed institutions and 13,769 in community-based facilities. Today's stats: Completed tests: 128,662 (up from 128,658) Positive tests: 55,310 (up from 55,306)


Total vaccine doses administered: 339,863 (up from 339,586)


Case Note: To err is human...


In U.S. v. Clark, No. 2:17-CR-00062-2, 2022 WL 17169621 (S.D.W. Va. Nov. 22, 2022) (Goodwin, J.), the court, on reconsideration, finds it erred in denying defendant’s CR motion based on lack of threat posed to defendant due to COVID at his facility because in another case, at the same time, court found conditions at facility did create a risk and so disparate treatment of defendants supports a finding that circumstances are extraordinary and compelling, explaining: " Pending before the court is Defendant Carl Clark's Emergency Motion for Compassionate Release. [ECF No. 425]. In his motion, Mr. Clark requests a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Id. Mr. Clark previously filed an Emergency Request for Compassionate Release on December 10, 2020, [ECF No. 400], which I denied on January 27, 2021, [ECF No. 401]. Mr. Clark filed a Motion for Reconsideration on February 8, 2021. [ECF No. 405]. I denied the motion as moot because Mr. Clark filed a notice of appeal on the same day that he filed his Motion for Reconsideration. [ECF No. 414]. For the reasons explained below, I have reconsidered my findings in the January 27, 2021 Memorandum Opinion and Order entered in this case. … In his current motion, Mr. Clark argues that the court previously found “that the BOP cannot effectively control the spread of COVID-19 at FCI Ashland” and granted compassionate release to two other FCI Ashland inmates within the same time frame in which his last motion was denied. [ECF No. 425, at 2]. Indeed, Mark Earl Henderson was granted compassionate release on December 10, 2020, based on his physical condition and the “severe outbreak of COVID-19 at FCI Ashland.” United States v. Henderson, No. 2:99-cr-00214-1, 2020 WL 7264461, at *4 (S.D.W. Va. Dec. 10, 2020). At the time, I found that the number of COVID-19 cases among FCI Ashland inmates had skyrocketed “from single digits to nearly 180 in the span of a few weeks,” which demonstrated that the BOP was unable to control the spread of the virus. Id. On January 15, 2021, I also granted compassionate release to Jeremiah Joe Johnson based on the conditions at FCI Ashland. United States v. Johnson, No. 2:17-cr-00109, 2021 WL 149858, at *3 (S.D.W. Va. Jan. 15, 2021). There, I stated that while the COVID-19 outbreak at FCI Ashland had improved with “only [3] inmates and 10 staff [testing] positive” for COVID-19, “the totality of the circumstances [demonstrated] that [the] BOP [could not] effectively control the spread of COVID-19 at FCI Ashland.” Id. at *2–3. Twelve days later, I denied Mr. Clark's Emergency Request for Compassionate Release because “[t]he number of active cases at FCI Ashland ha[d] been consistently dropping since mid-December and ha[d] remained low for several weeks.” United States v. Clark, No. 2:17-cr-00062-2, 2021 WL 277815, at *3 (S.D.W. Va. Jan. 27, 2021). At the time, however, the number of reported active inmate cases was the same as in Johnson. … When I ruled on Mr. Clark's Emergency Request for Compassionate Release on January 27, 2021, I found that Mr. Clark suffers from a health condition that puts him at a high risk for serious illness should he contract COVID-19. At the time, I did not find that Mr. Clark met the second requirement to show “extraordinary and compelling” circumstances—that FCI Ashland could not control the spread of COVID-19. Id. On reconsideration of the facts, however, I find it apparent that FCI Ashland could not control the spread of COVID-19 at the time. … I decided Mr. Clark's motion twelve days after Johnson. Because the circumstances at FCI Ashland had not changed in the interim between the two cases and Mr. Clark had a medical condition that placed him at higher risk for serious illness if he contracted COVID-19, I should have found that Mr. Clark had demonstrated that “extraordinary and compelling reasons” existed to justify his release in January 2021. On reconsideration, I find that the disparity in treatment between Mr. Clark and Mr. Henderson and Mr. Johnson constitutes an “extraordinary and compelling” reason to warrant an immediate reduction of Mr. Clark's sentence to time served. … An Act intended to promote such a purpose could not contemplate the level of disparate treatment observed between the similarly situated individuals in this case. Thus, I find that “extraordinary and compelling reasons” exist to justify reducing Mr. Clark's sentence.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) No new deaths within the BOP have been announced, leaving the reported inmate death toll at 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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