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October 27, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 84 BOP facilities and 9 RRCs

Currently positive-testing inmates: 186 (down from 188) Currently positive-testing staff: 342 (down from 355) Recovered inmates currently in the BOP: 48,428 (unchanged) Recovered staff: 14,329 (up from 14,305)


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

Butner FCI: 32 (unchanged)

Houston FCI: 21 (unchanged)

McKean FCI: 21 (unchanged)


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 143,667 federal inmates in BOP-managed institutions and 14,034 in community-based facilities. Today's stats: Completed tests: 128,678 (unchanged) Positive tests: 55,326 (unchanged)


Total vaccine doses administered: 333,010 (unchanged)


Case Notes: Court reverses Mag rec of CR; debilitation; rehab; 924(c) amendments insufficient...


In U.S. v. RICHARD ALLEN SMITH, Defendant., No. 2:00-CR-07-1, 2022 WL 13919507 (N.D.W. Va. Oct. 21, 2022) (Kleeh, CJ), the court rejected the magistrate judge's Report and Recommendation that defendant be granted compassionate release, notwithstanding his debilitating illnesses, rehabilitation and the non-retroactive amendments to § 924(c) stacking, explaining: "Pending before the Court are multiple motions for compassionate release and a Report and Recommendation (“R&R”) by the Magistrate Judge that Defendant Richard Smith (“Smith”) be granted early release. For the reasons discussed herein, the Court REJECTS the R&R and DENIES the motions. Smith is incarcerated at FCI Hazelton with a projected release date of April 9, 2036. On May 11, 2001, Smith was convicted after a jury trial of eight counts of an Indictment charging him and others with distribution of crack cocaine in and around Keyser, West Virginia. … On March 14, 2002, Smith was sentenced to a period of incarceration of 646 months. On November 3, 2009, the Court reduced his sentence pursuant to Section 1B1.1 of the United States Sentencing Guidelines (“USSG”) to a new total sentence of 624 months. In May 2019, without Government opposition, the Court reduced Smith's sentence by 120 months pursuant to the First Step Act of 2018, entering an Amended Judgment and sentencing him to a period of incarceration of 504 months. … On November 25, 2020, United States Magistrate Judge Michael J. Aloi entered an R&R, recommending that the renewed motion for compassionate release be granted. … In Smith's January 2020 motion for compassionate release, he argued that he should be resentenced due to the First Step Act's clarification of the “stacking” provision in 18 U.S.C. § 924(c). Since the filing of that motion, it appears that the parties now agree that the amendments to § 924(c)(a)(C) are not retroactive. Smith (as described above) already received a sentence reduction under the First Step Act when the Court reduced his sentence from 624 months to 504 months. Still, Smith, by counsel, believes that the Court should take the statutory changes into consideration when analyzing whether compassionate release is appropriate. The Government disagrees. Throughout the numerous briefs that have been filed, Smith argues that extraordinary and compelling reasons for early release have been presented by the COVID-19 pandemic. Smith, who was 66 years old at the time he filed his renewed motion for compassionate release, argues that he suffers from coal workers' pneumonoconiosis (“Black Lung Disease”) resulting from his 18 years of service as a coal miner; COPD; emphysema; pre-diabetes; a cyst on his liver; and symptoms of “prolonged QT syndrome.” Further, he is totally disabled and a portion of his right lung has been removed. He argues that his health conditions put him at high risk of severe illness or death if exposed to COVID-19. … The Government argues that Smith is dangerous and the § 3553(a) factors weigh against his early release. It also argues that Smith has not been a model inmate; in 2018, he was disciplined twice for being “insolent.” The Government believes that the Court should not consider the First Step Act's changes to § 924(c)'s sentencing structure because Congress did not make those changes retroactive. On November 25, 2020, the Magistrate Judge entered an R&R recommending that the Court grant the renewed motion for compassionate release. The Magistrate Judge found that Smith's serious medical conditions, standing alone and in light of COVID-19, serve as extraordinary and compelling bases for compassionate release. He also found that Smith does not pose a danger to any other person or the community, considering his age, diminished physical health, and significant rehabilitative efforts while incarcerated. Finally, the Magistrate Judge found that the § 3553(a) factors weigh in favor of his release. He also found that the changes to § 924(c) were a valid consideration for the Court, noting that Smith “would have served the bulk of – or perhaps the entirety of – such a sentence had it been imposed under current standards.” … Even though there is no policy statement applicable to a defendant-filed motion for compassionate release, the Fourth Circuit has recognized that the Commission's guidance “remains helpful ... even when motions are filed by defendants.” McCoy, 981 F.3d at 282 n.7. The Commission set forth four categories of “extraordinary and compelling reasons” for sentence reduction in U.S.S.G. § 1B1.13. … Here, the Court finds that Smith has not made a showing of extraordinary and compelling circumstances. Smith has made it clear that risks associated with COVID-19 are the basis of his renewed motion. The Court acknowledges that at least one or more of Smith's conditions could put him at higher risk of serious illness or death should he contract COVID-19. Importantly, however, Smith has not shown that he is at a particularized risk of contracting the disease at FCI Hazelton. As of October 21, 2022, there are zero active inmate cases and zero active staff cases of COVID-19 at FCI Hazelton. … Even if extraordinary and compelling circumstances existed, the 18 U.S.C. § 3553(a) sentencing factors weigh against Smith's release. … The Court finds that the § 3553(a) factors weigh against Smith's early release. Releasing Smith from prison early would not serve the statutory purposes of sentencing. Specifically, releasing Smith would not reflect the seriousness of the offense conduct, promote respect for the law, deter criminal conduct, or protect the public from future crime. Fourteen years remain on his sentence. While the Court commends Smith's efforts at education and rehabilitation, these efforts do not outweigh the other factors. The Court declines Smith's invitation to find that Smith's sentence should be reduced based on the amendments to § 924(c). Congress specifically declined to make the changes retroactive. Even if the Court were to consider the changes to § 924(c) and apply them to Smith, they would not overcome the Court's finding that § 3553(a) factors weigh against a sentence reduction.”



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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