Please ensure Javascript is enabled for purposes of website accessibility
 
Search

September 9, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 486 (down from 527) Currently positive-testing staff: 526 (up from 515) Recovered inmates: 42,873 (up from 42,857) Recovered staff: 7,353 (up from 7,335)


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

Coleman Low FCI: 74 (unchanged)

San Diego MCC: 64 (up from 63)

Mendota FCI: 47 (up from 46)

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

Pollock USP: 40 (unchanged)

Oakdale I FCI: 25 (up from 24)

Beaumont USP: 22 (up from 21)

System-wide testing results: Presently, BOP has 130,976 federal inmates in BOP-managed institutions and 14,86in community-based facilities. Today's stats: Completed tests: 120,837 (up from 120,825) Positive tests: 42,875 (down from 42,899)

Total vaccine doses administered: 219,710

Case Note: SDNY judge declines to impose issue exhaustion requirement on compassionate release applications...


In. U.S. v. GEORGE PAUL SALEMO, 2021 WL 4060354, at *1 (S.D.N.Y. Sept. 7, 2021) (Rakoff, J.), SDNY Judge Jed Rakoff declined to impose an issue exhaustion requirement on compassionate release motions, explaining “In 2011 … [t]he Court sentenced Salemo to 162 months of imprisonment with 3 years of supervised release. ECF 49. He is currently 77 years old and was incarcerated at the Federal Correctional Institution Fairton (“FCI Fairton”) for ten and a half years before being transferred to the Bronx Community Reentry Center, a halfway house, on May 24, 2021, where he currently resides. Salemo's scheduled release date is currently May 22, 2022. On March 5, 2020, while at FCI Fairton, Salemo submitted an application for compassionate release through his case manager. Mot. 4. On March 9, 2019, Salemo filed a pro se motion for compassionate release, which was denied. ECF Nos. 88, 89. More than thirty days later, on April 24, 2020, Salemo filed a second pro se motion for compassionate release, in which he argued that the pandemic posed significant risks to him given his health conditions. ECF Nos. 99, 101. On May 17, 2020, that motion was denied … Salemo appealed the decision and the Second Circuit granted the Government's motion to remand the case for reconsideration in light of United States v. Brooker, 976 F. 3d 228 (2d Cir. 2020) (Calebresi, J.) … The Government now argues that Salemo's motion is procedurally improper under Section 3582(c)’s exhaustion requirement because he has not submitted to the Bureau of Prisons (BOP) each of the arguments in the current iteration of his Motion for sentence reduction following remand from the Second Circuit. As explained below, the Court holds that this poses no procedural obstacle to reaching the merits of Salemo's Motion. Section 3582(c)(1)(A) does not expressly require a defendant to demonstrate administrative exhaustion on each issue he argues in a motion for sentence reduction, and there is no reason to judicially impose such a hurdle. One BOP denial is enough. … The Second Circuit, however, has not addressed whether 18 U.S.C. § 3582(c) requires a defendant not only to have exhausted the available BOP procedures but also to have exhausted those procedures with respect to each issue he raises. There is a split among the judges in this district, and among district courts nationwide, as to whether section 3582(c)(1)(A) requires issue exhaustion. See, e.g., United States v. Torres, 464 F. Supp. 3d 651, 655 (S.D.N.Y. 2020) (Stein, J.) (“[T]here is no indication whatsoever in the statutory text [of 18 U.S.C. § 3582(c)] that issue exhaustion is required.”); United States v. Gotti, 2020 WL 7706828, at *2 (S.D.N.Y. Dec. 29, 2020) (McMahon, J.) (“It is well-settled that a defendant must show administrative exhaustion with respect to the specific basis for relief upon which he is relying.”). The Government represents, however, that the majority of courts to have considered the issue have required issue exhaustion. Salemo responds that this is not a “third” motion but a continuance of his second motion, which was remanded by the Second Circuit for renewed consideration. Reply 2. He points out that this Court deemed his motion exhausted when it was initially decided and that there was no indication that the Second Circuit limited consideration on remand to “only those circumstances that existed ten months earlier.” Id. at 3. Finally, Salemo argues that ignoring the serious changes in circumstances since the initial motion for compassionate release was filed, including the prevalence of COVID-19 in prisons, Salemo contracting COVID-19, and the risks posed by the new COVID-19 variants, is a “meaningless exercise in service of an exhaustion requirement” that this Court has recognized is subject to judicial waiver.On consideration, the Court accordingly rejects the Government's invitation to inscribe an “issue-exhaustion” requirement on the sentence reduction statute. Any issue-exhaustion requirement would have to be inferred from the text and structure of the sentence modification statute. … Starting with the text, section 3582(c)(1)(A) contains no express requirement that each issue in a motion was previously presented to BOP. See id. Instead, it mandates that “the defendant has fully exhausted all administrative rights to appeal a failure of [BOP] to bring a motion on the defendants behalf or” have waited “30 days from receipt of such a request by the warden of the defendant's facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). The Second Circuit declined to impose an issue-exhaustion requirement for asylum claims on the basis of similar language in the Immigration and Nationality Act. See Lin Zhong v. United States DOJ, 480 F.3d 104, 121–22 (2d Cir. 2006). Nor does any applicable regulations purport to require the BOP to screen each argument before a motion may be filed in district court. See Torres, 464 F. Supp. 3d at 655-656. … As Torres explains, the “lengthy” BOP internal administrative process to screen sentence reduction applications has an inquisitorial, rather than an adversarial, structure.4 That BOP process is designed to assess the defendant's application for sentence modification using several sources, with the defendant's stated rationale only a jumping-off point. Nor does the district court's assessment of the section 3852(c)(1)(A) motion take the form of a review of the BOP process. Therefore, this Court holds that “a judicially created issue-exhaustion requirement is inappropriate,” Sims, 530 U.S. at 111, and a defendant may raise new issues in a motion for sentence modification so long as he has applied to BOP and either exhausted his administrative appeals of BOP's denial of that application or or waited for 30 days. … Salemo's medical records indicate that he refused the ophthalmological treatment due to the mandatory 21-day quarantine that would follow such visits because the quarantine period could interfere with other medical treatment he required. ECF 124 at 116–117 (medical records). The records further indicate that Salemo requested that such visits be postponed until the quarantine requirements were lifted. Id. … The Government argues that a lack of significant disciplinary infraction “does not establish that he has been rehabilitated,” and, even if it did, rehabilitation alone is not an extraordinary and compelling reason under 28 U.S.C. § 994(t). Gov. Letter 4. But that objection is, of course, irrelevant, since the Government does not dispute rehabilitation's relevance to the Court's sentence modification analysis and Salemo's Motion does not rely solely on rehabilitation. The Court therefore duly notes Salemo's exemplary record in prison and concludes that it weighs in his favor. Salemo also cites his preparation for re-entry, as he has begun looking for an apartment as well as work, and he will be eligible to receive Social Security and Medicare upon release. Mot. 8–9. The Government responds that an ambiguous search process and the citation of government benefits “is no plan at all.” Gov. Letter 4. The Court disagrees. Receipt of government benefits is relevant to assessing Salemo's plans for reentry. … Access to a baseline of economic resources and consistent medical care will foster a stable foundation for Salemo's life after prison, and therefore augurs a successful reentry. This is true whether his income and insurance come from an employer or from the state. … These ongoing risks, combined with Salemo's unusually difficult experience being imprisoned during the COVID-19 pandemic, therefore weigh in Salemo's favor.”


Death Watch: The BOP has tallied two new inmate COVID-19 fatalities, bringing the inmate death toll to 252. Five of these inmates died while on home confinement. Staff deaths remain at 5.


29 views0 comments