We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COVID IS LOVELIER, THE SECOND TIME AROUND…

The value of government blandishments has dropped substantially over the past few days, as prior assurances about the safety of the Johnson & Johnson vaccine morphed into a “pause” because some recipients were in the ICU with clotting blood. As one inmate, who watched a third of his unit get the J&J shot the day before the “pause,” told me, “I think this is the nail in the coffin for J&J, not many inmates will take it anymore here from the sound of it.”

I’m not judging J&J, which may or may not have triggered a severe reaction in two out of a million users. But the government’s willingness to speak with authority when it has no basis for the assertion is not an uncommon phenomenon. Take the U.S. Attorney in any of the 94-odd federal districts making up this great nation.

More than one federal prisoner who has already had COVID (and there are a lot of them) has moved for 18 USC § 3582(c)(1)(A)(i) compassionate release. In many cases, prisoners have filed for compassionate release and then gotten COVID while waiting for the judge to act.  For inmates whose compassionate release motions were not decided at the time they got sick, the government likes to argue that they are immune, or at least that if they get it again, their case would be no worse than the first time around.

Last week, a district court rejected the government’s evidence-free ipse dixit (a gift to posterity from Marcus Tullius Cicero which means, essentially, that “it’s so because I said it’s so”), and accepted an inmate’s expert opinion to the contrary.

Justin Groat filed for compassionate release. He had already had COVID-19, but he had a laundry list of comorbidities that could have made things worse, and would not help matters if he caught it again. The government argued he was immune, and he would be fine (without, of course, citing any basis for its claim, a classic ipse dixit.

But Justin responded that a number of district court decisions had held  a previous positive Covid-19 diagnosis does not block grant of a compassionate release motion  “if compelling and extraordinary reasons justify a reduced sentence.” He also a medical school professor’s opinion that “immunity seems to last approximately 90 days and that ‘reinfection with Covid-19 has been documented, with some individuals presenting with more severe disease than the first infection.”

The district court granted compassionate release, finding Justin’s evidence “persuasive” that COVID immunity only lasted about 90 days. “The Government has only offered the opinion of its counsel that Mr. Groat’s prior infection suggested he was safe as “amount[ing] to nothing more than impermissible ipse dixit… Because Mr. Groat is currently unvaccinated, exposed to many other inmates who are similarly unvaccinated, being guarded by substantial percentage of staff who (according to defense counsel) have also not been vaccinated, and because it is likely that he is capable of being reinfected, the court finds that Mr. Groat is at risk of being infected with Covid-19.”

Incidentally, over half of the BOP’s workforce has refused vaccination.

United States v. Groat, Case No 2:17cr104, 2021 U.S. Dist. LEXIS 65194 (D.Utah Apr 2, 2021)

– Thomas L. Root