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Law360 (June 1, 2020, 11:13 PM EDT) -- A Boston federal judge has refused to release a pharmacist connected to a deadly meningitis outbreak from prison on compassionate-release grounds related to the spread of the novel coronavirus inside prisons, saying there's nothing "extraordinary" about the man's situation.
U.S. District Judge Richard Stearns said that Gene Svirskiy, formerly a pharmacist at the defunct New England Compounding Center whose contaminated steroids sparked a deadly nationwide meningitis outbreak in 2012, does not qualify for a release under existing guidelines, and suggested his hands were tied in the decision.
Svirskiy had asked a court for compassionate release due to the well-documented spread of the virus inside prisons, a setting where social distancing is inherently difficult. Svirskiy is roughly 10 months through a 30-month sentence.
Beyond the pandemic, "no 'extraordinary and compelling' reason personal to Svirskiy is given (other than the fact that he is a male)," the judge said. There's also nothing about the prison where he now lives "that suggests a risk of infection greater by any degree of magnitude than that faced by the prison population in general or, for that matter, society at large," the judge said.
"Were this an issue of pretrial detention, I would regard Svirskiy as a prime candidate for release. But it is not," the judge said, and without anything "extraordinary" in Svirskiy's case, "the law does not give me the authority to order his release."
Prosecutors had told the judge in recent weeks that Svirskiy was in no more danger than any other prisoner.
Svirskiy has been pursuing the request for almost two months, originally petitioning Bureau of Prisons leadership at his prison, FMC Devens, on April 7 and being denied on April 30, according to prosecutors.
Svirskiy had worked in an NECC clean room compounding drugs and was not charged with making the steroids that caused the outbreak, which killed 64 people and infected almost 800 others with meningitis.
But prosecutors said he made drugs under unclean conditions and allowed expired and poorly tested drugs to be shipped to hospitals.
Svirskiy was convicted in late 2018 on 14 counts, including racketeering conspiracy, after being found guilty with four other former NECC employees after a nearly eight-week trial in 2018. A sixth defendant was acquitted.
At Svirskiy's May 2019 sentencing, Judge Stearns said that Svirskiy did not deserve as harsh a fate as former NECC owner Barry Cadden or head pharmacist Glenn Chin, who were sentenced to nine and eight years in prison, respectively. But Svirskiy nonetheless abused his role as a pharmacist and broke laws related to drug safety, the judge said.
A total of 13 former NECC employees either pled guilty or were convicted.
Representatives for the parties were not immediately available for comment Monday.
The government is represented by Amanda Strachan and Christopher Looney of the U.S. Attorney's Office for the District of Massachusetts.
Svirskiy is represented by Jeremy Sternberg and Christopher Iaquinto of Holland & Knight LLP.
The case is U.S. v. Cadden et al., case number 1:14-cr-10363, in the U.S. District Court for the District of Massachusetts.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
