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September 9, 2020

Ugly details from federal defenders' latest fact sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders has just released this new two-page fact sheet dense with information and links on "The COVID-19 Crisis in Federal Detention."  I recommend the full document, and here are some of the details (absent the links):

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 4 times the general population, and causing deaths at nearly twice the national rate. BOP is “making it worse,” said Joe Rojas, the regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.”

There have now been 126 reported deaths of incarcerated individuals, an incalculable loss.  They were parents, siblings, and children.  They were us.  Some of their deaths were surely preventable.  BOP’s press releases reveal that the majority — 93 — were at higher risk of complications from COVID-19 and BOP knew it.  At least a quarter of those who have died in BOP’s care were seventy or older.  Last month, BOP told the Washington Post that at least 18 individuals died while their requests for compassionate release were pending.  To date, we have identified 19 individuals who died in BOP custody after filing — and in some cases, even after being granted — requests for release....

BOP and DOJ have ignored the tools Congress gave them to lower prison populations safely.  The bipartisan CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  But in response, AG Barr and BOP have issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  To date, BOP has approved for transfer to home confinement only 4.4% of the 174,923 who were in custody on February 20.  The DOJ OIG examined BOP’s response to COVID-19 at one of BOP’s hardest-hit facilities, Lompoc Federal Correctional Complex, and found that BOP’s use of home confinement at FCC Lompoc was “extremely limited.”  The Department of Justice (DOJ) has not released demographic data on the individuals BOP has approved for home confinement, despite congressional demands.  At a time when transparency is more important than ever, the federal incarceration system is a black box. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency.”

Thanks to the First Step Act of 2018, individuals no longer must depend on BOP to initiate a motion for compassionate release. Post-FSA, defendants may file a motion directly with the court 30 days after the warden’s receipt of a request.  But during the COVID-19 crisis, this 30-day delay, coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.  At FMC Carswell, a medical facility that houses the most medically vulnerable women in BOP, “fewer than 20 women” have reportedly received compassionate release.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

September 9, 2020 at 03:16 PM | Permalink


Compassionate release also depends on the willingness of the District Judge to re-sentence to time served. In many instances this is the reason for the lack of compassion.

Posted by: beth curtis | Sep 9, 2020 10:20:33 PM

Yep. The Northern District of Texas has about 70 published opinions on 3582 and fewer than a half dozen releases, mostly for those who probably qualify without Covid-19 and who have only months remaining on their sentences.

Posted by: Fat Bastard | Sep 10, 2020 9:40:02 PM

thanks for the link to the 2 page covid fact sheet-- can you tell me how to access the full report? I've looked unsuccessfully in the usual places

im a retired lawyer

Posted by: russell rains | Sep 21, 2020 3:51:31 PM

I am not sure there is a "full report" but there is a lot of related materials here:

Posted by: Doug B. | Sep 21, 2020 8:34:40 PM

many thanks

Posted by: Russell Rains | Sep 22, 2020 5:11:58 PM

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