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October 26, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 89 BOP facilities and 9 RRCs

Currently positive-testing inmates: 188 (up from 171) Currently positive-testing staff: 355 (up from 347) Recovered inmates currently in the BOP: 48,428 (down from 48,480) Recovered staff: 14,305 (up from 14,299)


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

Butner FCI: 32 (up from 21)

Houston FCI: 21 (up from 19)

McKean FCI: 21

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

Central Office HQ: 58 (unchanged)

Rochester FMC: 27 (unchanged)

Dublin FCI: 18 (unchanged)

System-wide testing results: Presently, BOP has 143,612 federal inmates in BOP-managed institutions and 13,968 in community-based facilities. Today's stats: Completed tests: 128,678 (unchanged) Positive tests: 55,326 (unchanged)


Total vaccine doses administered: 333,010 (up from 332,784)


Case Notes:


In U.S. v. JARVIS KING, Defendant., No. 04-CR-285-20-JPS, 2022 WL 11830004 (E.D. Wis. Oct. 20, 2022) (Stadtmueller, J.). the court reduced lifer's sentence to 24-years due to retroactive changes to Fair Sentencing Act per Section 404 of the First Step Act, but court rule that the same reduction unavailable under Section 403 of the First Step Act, explaining: "In May 2007, the Court sentenced Defendant to a total term of life imprisonment, which was a statutory mandatory minimum at the time because Defendant had two qualifying prior felony drug offenses, to be followed by 10 years’ supervised release. ECF Nos. 1078, 1079. Defendant has now served approximately 17 years of his sentence. … The Government contests the applicability of Section 3582(c)(1)(A). Specifically, the Government argues that controlling Seventh Circuit precedent has rejected Defendant's first argument in support of compassionate release: that, inter alia, intervening changes in the law and the draconian nature of his original sentence constitute “extraordinary and compelling” reasons warranting compassionate release. The Government additionally disputes Defendant's second argument regarding his medical circumstances and the COVID-19 pandemic, arguing that such factors do not rise to the level of “extraordinary and compelling.” … [T]he Government concedes that the two prior felony convictions, which served as the predicates for Defendant's mandatory minimum sentence of life imprisonment (and the Government's Section 851 enhancement, ECF No. 833), no longer qualify as predicates. ECF No. 1632 at 8. This is so because either the law has changed and applies retroactively, or where it has changed and does not apply retroactively, the Court is still required to consider those changes under Concepcion v. United States, 142 S.Ct. 2389, 2404 (2022). If a defendant is eligible for relief on a Section 404 motion, and once the court has determined the sentencing parameters, courts then assess whether a reduction is appropriate by undertaking a “complete review” of a defendant's case for relief. Pub. L. No. 115-391, 132 Stat. 5194, § 404(c) … At the time of Defendant's original sentencing, the Court commented that a life sentence, on the facts before it, was “draconian.” ECF No. 1078 at 2. The Court explained at the sentencing hearing that Defendant's objections at the time related to matters determined by the legislative branch and that were outside the Court's province. Id. The Court further stated that, if it had discretion, a sentence of approximately 30 years (or 360 months, as was imposed upon co-Defendant Calvin James) “would be appropriate”; however, the Court had no such discretion in light of the then-applicable mandatory minimum life sentence. … Defendant urges the Court to recognize, as it must under Concepcion, the changed legal landscape since his original sentencing. ECF No. 1625-1 at 12. First, he explains, even following enactment of the Fair Sentencing Act and the First Step Act, political actors now agree that crack is not more dangerous than cocaine, and that offenses involving the two should be treated equally.3 Id. He also notes that it is now widely accepted that nonviolent drug offenses should not be penalized with life imprisonment. … The Court is persuaded that a sentence reduction is appropriate in light of the intervening changes in the law, which changes affect the sentencing parameters before it as explained above, coupled with the intervening changes in fact presented by the parties. The Court further determines that it has sufficient information before it to analyze anew both the sentencing parameters as well as other factors, including the Section 3553(a)factors, to give it a “complete review” of Defendant's case. …3.3 Compassionate Release Defendant argues that the disparity between the life sentence he received in 2007 and the sentence he would receive today constitutes an extraordinary and compelling circumstance warranting his compassionate release under Section 3582(c)(1)(A). … In response to Defendant's first argument, the Government argues, and supplements its briefing with two letters of supplemental authority on this point, that changes in the law do not constitute extraordinary and compelling circumstances warranting compassionate release under Section 3582(c)(1)(A). ECF No. 1632 at 17; ECF Nos. 1633, 1636. Indeed, in United States v. Brock, the Seventh Circuit explicitly held that changes wrought by intervening case law as to what qualifies as a Section 841 predicate offense supporting a Section 851 enhancement do not qualify as extraordinary or compelling reasons warranting compassionate release. … Defendant contends that Brock is inapplicable because he does not argue that intervening case law alone constitutes an extraordinary and compelling reason warranting compassionate release, but that his “flawed and draconian mandatory minimum sentence of life imprisonment” also does. … However, while certainly draconian, the basis for the original sentence and the reason why that basis no longer exists today are due to both intervening case law and intervening legislative changes. Brock, as well as the Seventh Circuit's prior decision in United States v. Thackerand more recent decision in United States v. King all indicate that any intervening change in the law—whether legislative or judicial—is not extraordinary and compelling to warrant compassionate release. … Consequently, Defendant has not presented an extraordinary and compelling reason warranting release. Again, however, as explained above, the Court will afford Defendant relief by way of Section 404, and such decision is based on and includes consideration of the intervening changes in the law that Defendant proffers in support of compassionate release.”


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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