Three Years of Hell: Responding to the Bureau of Prison’s Abysmal Failures in Preventing, Treating, and Reporting Covid.

Set for Sentencing podcast COVID_sm

March 19, 2023 is the 3-year anniversary of the first recorded Covid infection in the Federal Bureau of Prisons.  But the true story has not been told of the BOP’s failure to protect inmates and prevent the spread of the virus with all of its deadly, disastrous, and long-term consequences. 

Therefore, it is imperative that we continue to tell the story of BOP’s incompetence, indifference, and obfuscation.  We must step up our efforts to litigate (the ever-expanding) compassionate release elements, and credibly tell the story of the broken BOP at sentencing every chance we get. 

Warning:  This is a looong conversation.  That’s what happens when you get two lawyers in a room together, and throw some tequila into the mix.  But it’s jam packed with useful, actionable information.  So hang in there until the end!  Maybe listen to it on double speed 😊.




  • Data collection and reporting failures of the BOP that continue to undermine confidence and obfuscate the truth of what’s going on behind the walls;
  • Reluctance of inmates to self-report Covid Symptoms;
  • The unduly harsh punishment inmates face during Covid
  • Home confinement during the pandemic;
  • The coming wave of overcrowding that will fuel the BOP as covid nuclear reactors;
  • Covid deaths over three years compared to overall deaths in BOP over eighteen years; 
  • BOP clearly fudging numbers of Covid tests currently administered;
  • How the BOP is likely falling short on vaccines;
  • How most of the BOP is back to business as usual, operating as if the pandemic is over;
  • Why legislation designed to reduce the inmate population did not achieve its goal;
  • Practical advice for how to weaponize all of this information at sentencing;
  • How the sentencing commission is trying to broaden eligibility for compassionate release;
  • Compassionate release and long Covid;
  • A call to Judges to NULLIFY sentences until the BOP can prove it’s capable of caring for our clients;
  • Getting back to pre 1986 where the DEFAULT sanction in federal court was PROBATION.



OIG REPORT – Shortly after we recorded this, the Office of the Inspector General released it’s own evaluation of the BOP’s performance.  Suffice it to say, it was not a glowing review.

The big issues the OIG identified were:

• Serious failures in the BOP’s use of single-celling of inmates during COVID-19 modified operations; the BOP reported to the OIG that seven inmates died by suicide from March 2020 through April 2021 while housed in single-cell confinement in quarantine units related to COVID-19.

• The BOP should explore permanent facility modifications to help it more easily implement future infection control measures.

• The BOP Should Assess How It Can More Effectively Utilize Its Home Confinement Authorities. While the BOP transferred a substantial number of inmates from prisons to home confinement during the first few months of the pandemic, the BOP actually transferred fewer inmates during the first year of the pandemic than it had during the year immediately preceding the pandemic.

• The pandemic exacerbated the effects of preexisting BOP staffing shortages and strained staff morale, and we concluded that the BOP should improve how it communicates available staff support resources.

• We identified a significant deficiency in the BOP’s communication with inmates’ families regarding COVID-19 related serious illnesses.

• The BOP did not always provide clear guidance on staff and inmate use of healthcare protective equipment and compliance with healthcare safety guidance.


CDC WARNING OF MENTAL HEALTH ISSUES AND COVID:  Underlying Medical Conditions Associated with Higher Risk for Severe COVID-19: Information for Healthcare Professionals | CDC



I mentioned an earlier episode with Prison Consultant Maureen Baird, called, “Telling the Story of Prison at Sentencing.”  Here’s the link: Telling the Story of Prison at Sentencing – Doug Passon Law


Mark and I earlier did a deep dive into the “acquitted conduct” section of the guidelines and the seismic shift it could have on sentencing.  Here’s the link to that:

PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. – Doug Passon Law





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