We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ANTI-VAXXERS GET NO COMPASSION, 7TH CIRCUIT SAYS
District Courts have been struggling with what to do with prisoners seeking compassionate release under 18 USC § 3582(c)(1)(A)(i) because of COVID-19, now that vaccines are generally available. You might think all of this is akin to perfecting buggy whips, what with the COVID pandemic over with, but the virus has a way of sticking around like that dinner-party guest who just won’t leave.
The BOP numbers of sick inmates are climbing again, with 214 sick as of last night. More ominous: three weeks ago, the number of BOP institutions with COVID present had fallen to a 13-month low of 64. As of last night, it had shot up to 84. Something tells me COVID behind the fence is soon to become an issue again.
Other numbers you should know: 53.9% of federal prisoners had been vaccinated. A good number of those who have not taken the vaccine still have § 3582(c)(1)(A)(i) compassionate release motions pending. Last week, the 7th Circuit warned them that they may have nothing coming.
Brian Broadfield filed a compassionate release motion, claiming his medical conditions made him susceptible to COVID-19. His district court denied him, finding that a prior weapons conviction made him a danger to the community. That was error: Brian had no prior weapons conviction. But when he appealed, and asked the 7th Circuit to remand the case, the appeals court declined.
“A remand would be appropriate only if reconsideration could produce a decision in Broadfield’s favor,” the 7th said, “and it could not. When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America’s prisons, where people cannot engage in social distancing. Today, however, effective vaccines are available.”
Brian said he had refused to get vaccinated because he feared an allergic reaction, but he did not show he had ever had such a reaction before. Even if he had, the Circuit said, “the policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward.”
(An aside: That policy and $3.75 will get you a Starbucks frappe menu. Dr. Homer Venters – an epidemiologist who, among other positions, has been designated by the U.S. District Court for the Central District of California to inspect FCI Lompoc – reported to that Court that
[i]t is apparent that BOP has performed well in their efforts to secure, distribute and offer COVID-19 vaccine, a significant accomplishment… there appears little effort focused on engaging staff and incarcerated people about their questions or concerns regarding the vaccine. In speaking with the leadership, it was clear that they view the periodic, mass offering of the vaccine as more than adequate. They reported no efforts to identify and follow up with high-risk patients who refused vaccination, and stated several times that because those people would be re-offered again at a later time, in the same manner as before, that the process was adequate. This is consistent with the reports of patients themselves, many of whom reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterwards. The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients; ‘By taking time to listen to their concerns and answer their questions, we can help people become confident in their decision to be vaccinated.’ The approach of BOP Lompoc not only fails to engage with patients, it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.
[Note: Hyperlink to CDC guidance not in Dr. Venters’ statement – I added it]. In other words, any prisoner with questions about the vaccine had better not hope for any wise counsel from the quackery that is BOP Health Services. End of aside.)
The 7th concerned itself only with the policy statement, not with its execution. It ruled that “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.”
Ohio State law professor Doug Berman said in his Sentencing Law and Policy blog, “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.”
United States v, Broadfield, Case No 20-2906, 2021 US App LEXIS 21580 (7th Cir. July 21, 2021)
Second Report of Dr. Homer Venters, ECF 239, filed May 12, 2021, in Torres v. Milusnic, Case No. 20-cv-4450 (C.D.Cal.)
Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (, May 20, 2021)
Bureau of Prisons, COVID-19 Vaccine Guidance: Federal Bureau of Prisons Clinical Guidance (Jan. 22, 2021)
Sentencing Law and Policy, Seventh Circuit panel states (in dicta?) that vaccine availability “makes it impossible” for COVID risks to create eligibility for compassionate release (July 22, 2021)
– Thomas L. Root