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7TH CIRCUIT RAISES THE BAR (AGAIN) ON COVID COMPASSIONATE RELEASES

The 7th Circuit has already handed down the scientifically dubious holdings that a prisoner who has gotten the vaccine should not be allowed to take advantage of 18 USC § 3582(c)(1)(A)(i) compassionate release based on COVID dangers because “published data do not establish or imply an incremental risk for prisoners — either a risk of contracting the disease after vaccination or a risk of a severe outcome – if a vaccinated person does contract the disease” and that prisoners who have access to a vaccine cannot use the risk of COVID for compassionate release “unless they can demonstrate that they are medically unable to receive or benefit from the available vaccines.”

Last week, the Circuit went even further. Christopher Barbee appealed the denial of his compassionate release motion based on COVID risk factors and made a showing he remained at risk even after being vaxxed. Given the current number of breakthrough COVID cases in vaccinated people, it’s an argument that’s got some weight behind it.

But the 7th shot him down, holding that “although Barbee contends that he remains at risk as the COVID-19 situation continues to evolve, he has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released.”

So now prisoners in the 7th not only have to show prison is a dangerous place for COVID – and the stats say the COVID rate is four times the rate in prison than it is on the street, with one out of three BOP inmates having tested positive for COVID – but they have to show that home is much safer.

Home is not any safer than prison. That is, if you live at home with 150 other people in one big room and you have workers coming in from the community three times a day. But for anyone else, home being safer than prison is an argument that’s self-evident.

It doesn’t matter in the 7th Circuit. Call it ‘Circuit 1, Science 0,’

United States v. Barbee, Case No 21-1356 (7th Cir., Feb. 11, 2022)

Fort Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (Dec. 30, 2021)

– Thomas L. Root