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November 4, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



NOTE: THE BOP HAS BEEN FAILING TO UPDATE ITS COVID STATS ON RANDOM DAYS, INCLUDING YESTERDAY AND TODAY, SO HERE WE KEEP OUR STATS FROM NOVEMBER 2 BUT PROVIDE A NEW CASE SUMMARY.


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 86 BOP facilities and 9 RRCs

Currently positive-testing inmates: 238 (up from 231) Currently positive-testing staff: 318 (up from 315) Recovered inmates currently in the BOP: 48,244 (down from 48,309) Recovered staff: 14,381 (up from 14,361)


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

Carswell FMC: 54 (down from 56)

Butner FCI: 51 (up from 49)

Phoenix FCI: 29 (down from 40)


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

Central Office HQ: 58 (unchanged)

Rochester FMC: 27 (unchanged)

Brooklyn MDC: 13 (unchanged)

System-wide testing results: Presently, BOP has 144,041 federal inmates in BOP-managed institutions and 13,948 in community-based facilities. Today's stats: Completed tests: 128,672 (unchanged) Positive tests: 55,320 (unchanged)


Total vaccine doses administered: 335,006 (up from 334,671)


Case Note:


In U.S. v. ANTHONY RUSSO, et al. No. 90-CR-1063, 2022 WL 16627450 (E.D.N.Y. Nov. 2, 2022) (Block, J.), the court granted compassionate release to defendants Anthony Russo and Paul Moore, serving life sentence, explaining why it believes its broad discretion permitted the reductions based on non-retroactivity of Booker, trial penalties, and rehabilitation, and lauding Congress’ attempt to inject compassion into a harsh judicial system: "This December will mark the fourth anniversary of the passage of the First Step Act. The Act modified 18 U.S.C. § 3582(c)(1)(A), known as the “compassionate release” statute, which empowers the district courts to reduce a previously imposed sentence. … Prior to the First Step Act, the Bureau of Prisons (“BOP”) was the sole arbiter of compassionate release applications. Now, defendants apply first to the BOP for relief, and if the BOP denies their application, they may apply directly to the district court. Though this procedural change appears minor, it has had significant impact for inmates: in 2018, only 34 inmates received sentence reduction via compassionate release. In the years since the First Step Act was passed, more than 4,000 sentence reductions have been granted. Unsurprisingly, the Act has spawned a plethora of litigation which now makes up a significant part of a district judge's criminal docket. At the heart of the matter is the challenge the district judge faces in deciding which factors the judge can consider in determining whether the “extraordinary and compelling reasons” threshold has been satisfied. This has produced inconsistent caselaw across the country. In the Second Circuit, a full appreciation of the breadth of the circuit court's unanimous decision in United States v. Brooker, 976 F.3d 228 (2020) is the requisite starting point. … It therefore ruled that “though motions by the BOP still remain under the First Step Act, they are no longer exclusive.” Consequently, the court “read the Guidelines as surviving, but now applying only to those motions that the BOP has made.” … But what are these surviving Guidelines? … Notably, Brooker did not address under which circumstances the district court would exceed its compassionate release discretion. It did hold, however, that “a district court's discretion in this area—as in all sentencing matters—is broad.” … The Brooker court also provided some minimal guidance in remanding to the district court, in the first instance, to exercise its discretion. It commented on the defendant's extensive rehabilitation coupled with the length of his sentence. … But notwithstanding these comments, district courts throughout the country have not been provided with any guidance as to the limits of their “broad discretion.” The two cases which I have consolidated for the purposes of this opinion reflect the broad range of issues bearing upon factors which I believe the district courts may consider—in addition to those contained in Guideline § 1B1.13 and its Application Notes and referenced in Brooker—in exercising their broad discretion in deciding their compassionate release motions. Notably, the Sentencing Commission lacked full membership from 2014 through most of 2022, but since August of this year it has been fully constituted. … It is the Court's hope that its decision in this case, and in particular the factors it has identified as extraordinary and compelling, will be of value to the Commission when updating its Guidelines.




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.

Job Posting: The Center for Justice and Human Dignity

The Center for Justice and Human Dignity is an education, advocacy, and training center, focused on advancing meaningful change in prison sentencing practices with the goal of reducing the number of people sent to prison and expanding the judicial use of alternative-to-incarceration sanctions.


The Center for Justice and Human Dignity is seeking an Executive Director who will have overall programmatic, operational, development, and fundraising responsibility for the development of CJHD and its staff, programs, public engagement, and execution of its mission. The Executive Director will establish and operationalize programmatic goals and strategic initiatives in alignment with stakeholder interests (including the board and the organization’s founder). Their role will include developing relationships with partners, establishing and implementing fundraising strategy, and leading public relations/media, programs, and operations. The Executive Director will be responsible for (in collaboration with the board and founding partner) the development and implementation of a self-sustaining, funding infrastructure to establish the organization’s full financial independence from its incubator. This position is remote and open to applicants in any location within the United States.


Respond to: aviva@aleph-institute.org


Complete Posting can be viewed here.

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