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September 2, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts: Currently positive-testing inmates: 528 (up from 512) Currently positive-testing staff: 492 (up from 490) Recovered inmates: 42,807 (down from 42,854) Recovered staff: 7,278 (up from 7,236)


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

Coleman II USP: 107 (unchanged)

San Diego MCC: 63 (down from 72)

Mendota FCI: 44 (up from 26)

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

Pollock USP: 38 (unchanged)

Oakdale I FCI: 22 (up from 21)

Beaumont USP: 19

System-wide testing results: Presently, BOP has 131,083 federal inmates in BOP-managed institutions and 14,466 in community-based facilities. Today's stats: Completed tests: 120,589 (up from 120,495) Positive tests: 42,838 (down from 42,886)

Total vaccine doses administered: 217,240

Case Note: When can a vaccinated defendant demonstrate extraordinary and compelling circumstances?


In U.S. v. Michael Deshone Mathews, 2021 WL 3883735 (E.D. Cal. Aug. 31, 2021) (Mueller, CJ), the court provides a wealth of data on the COVID-19 variants while explaining when a vaccinated defendant can show extraordinary and compelling circumstances: "If a defendant is vaccinated, as Mr. Mathews is here, this court has employed a rebuttable presumption that the risk of severe harm from COVID-19 is not an “extraordinary and compelling” reason under § 3582(c)(1)(A)(i). Id. at 5. A defendant can rebut this presumption by offering evidence of an elevated personal risk of severe harm despite the protections of vaccination. … Mr. Mathews has rebutted the presumption here by submitting Dr. Abdelghany's declarations. A few more details about Dr. Abdelghany's opinions are necessary to illuminate the court's reasoning. Dr. Abdelghany explains two scenarios in which people can be re-infected with COVID-19: (1) the loss of protective immunity after vaccination or (2) infection with a variant. Suppl. Abdelghany Decl. ¶ 6–7 (citing U.S. Ctrs. for Disease Control & Prevention, US Covid-19 Cases Caused by Variants (Apr. 10, 2021)& U.S. Ctrs. for Disease Control & Prevention, Tracking Variants (August 12, 2021)). These scenarios are not mutually exclusive; a person can both lose protective immunity and become infected with a variant. As for the first scenario, loss of immunity after vaccination, Dr. Abdelghany explained that data is now available beyond that originally gathered in clinical trials. … In both, the data cited in Dr. Abdelghany's supplemental declaration confirms vaccines are highly effective, but not perfect, protection against SARS-CoV-2 infections and severe COVID-19. … However, the second risk scenario described in Dr. Abdelghany's declaration, the risk of severe disease associated with coronavirus variants, is more difficult to assess. When this court last considered this question, other district courts had acknowledged that new and more dangerous variants might emerge but had concluded that vaccines “protect against infections from new coronavirus variants.” … A minority has expressed greater concern. An example from this group is United States v. Sherrod, No. 19-20139, 2021 WL 3473236 (E.D. Mich. Aug. 6, 2021). The court recognized district courts have “often, but not always” denied motions under § 3582(c)(1)(A) when fully vaccinated defendants have argued they were at risk of severe COVID-19. Id. at *4. It noted that even those courts recognized the “calculus might change if there were a shift in scientific consensus” and many orders invited defendants to renew their motions if “more information emerged[d] suggesting that the...vaccines cannot protect [the defendant]. … Dr. Abdelghany explains further in his declaration that variants “have been under intense investigation because of their potential for increased infectivity, to cause increased severity of disease, to escape monoclonal antibody treatments, and to evade and reduce the efficacy of current vaccines.” Suppl. Abdelghany Decl. ¶ 7. In Minnesota, where Mr. Mathews is incarcerated, the “alpha” variant is the most common, but the “beta” variant is also “spreading quickly.” Id. ¶ 8. Both the alpha and beta variants have a 50 percent increased risk of transmission. … Based on these studies, Dr. Abdelghany concludes Mr. Mathews remains at an “increased risk of SARS-CoV-2 infection..., especially given his current incarceration in Minnesota where the alpha variant—a virus with known ability to infect vaccinated patients—is the most common cause of COVID-19 disease.” … While these numbers are slim and Dr. Abdelghany's language is cautious, the court continues its practice of “err[ing] on the side of caution to avoid potentially lethal consequences.” Summerfield, 2021 WL 1517923, at *4. The court cannot ignore Dr. Abdelghany's unambiguous and uncontradicted opinion that Mr. Mathews faces an increased personal risk of infection by a variant. Mr. Mathews has thus demonstrated that he is at risk of infection by a variant.”


Death Watch: The BOP has identified a previous fatality, that Stacy Bonds 58, of FCI Butner (Low), who died on March 25, 2021. Inmate deaths remain at 248. Five of these inmates died while on home confinement. Staff deaths remain at 5.


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