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October 27, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 152 (unchanged) Currently positive-testing staff: 389 (down from 416) Recovered inmates: 42,845 (down from 42,894) Recovered staff: 8,136 (up from 8,103)


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

Allenwood Low CI: 25 (unchanged)

Canaan UPS: 11 (unchanged)

Forrest City Medium FCI: 10 (unchanged)

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

Oakdale I FCI: 27 (unchanged)

Phoenix FCI: 27 (unchanged)

Forrest City Medium: 21 (unchanged)

System-wide testing results: Presently, BOP has 132,848 federal inmates in BOP-managed institutions and 14,573 in community-based facilities. Today's stats: Completed tests: 123,976 (up from 123,974) Positive tests: 42,608 (up from 42,606)


Total vaccine doses administered: 237,257 (up from 236,067)

Case Note: Futility of seeking compassionate release from warden in non-BOP facility excuses failure to exhaust administrative remedies...


In U.S. v. Julio Paris, 2021 WL 4952015 (D. Conn. Oct. 25, 2021) (Bryant, J.), the court re-affirmed its previous ruling that futility excuses failure to exhaust for defendants not in BOP custody, explaining: "T]he First Step Act's exhaustion requirement is not jurisdictional.” United States v. Scparta, No. 18-cr-578(AJN), 2020 WL 1910481, at *4 (S.D.N.Y. Apr. 20, 2020). “Courts have excused failure to comply with the exhaustion requirement in this context for equitable reasons like futility.” Id. at *5. Mr. Paris argues that he does not have to exhaust administrative remedies because an attempt to exhaust would be futile. This is because he is currently at a non-BOP facility. The Government does not address this argument. The Court will assume he is not in BOP custody because the Government has not addressed the issue and thus appears to have conceded it. Further, this Court has previously adjudicated a case where the defendant sought compassionate release from the warden at Wyatt, who denied the request because Wyatt is not a BOP facility. United States v. Jepsen, 451 F. Supp. 3d 242, 243 (D. Conn. 2020). That defendant sought compassionate release from the BOP directly, which also denied the request because the defendant was not at a BOP facility. Id. The Court found the exhaustion requirements met. Id. at 245. Here, Mr. Paris is at Wyatt like the defendant in Jepsen. The defendant in Jepsen was unable to get a review of his request for compassionate release from the facility or from the BOP. The Court does not have a reason to believe that any efforts Mr. Paris would make would result in a different outcome. In other words, any effort made by Mr. Paris to seek a merit-based review of his request for compassionate release would be futile because he is at a non-BOP facility. The Court excuses the failure to exhaust administrative remedies because such efforts would have been futile.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has noted one additional Inmate COVID-related death, bringing the total such deaths to 266. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

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