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July 22, 2021
Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release
The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing). The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:
Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends. But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.
This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding). I suspect the final clause will garner considerable attention no matter how characterized. Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release. Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.
July 22, 2021 at 01:13 PM | Permalink
Comments
But what about the growing problem of "break-through cases", arising from the Uber-contagious Delta varient? Break-through cases occur when a fully vaccinated person gets COVID-19 anyway, because the virus has mutated. This is a growing and troublesome problem now, and will be just as much a problem inside Federal prisons as it is on the streets of America. The author of this opinion may yet have to eat his words.
Posted by: Jim Gormley | Jul 23, 2021 10:11:35 AM
