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Prosectors to Stop Asking for Compassionate Release Waivers in Plea Agreement: NPR

Prosecutors asked that plea agreements include waivers of compassionate release motions before a recent NPR story shed light on the practice.

The Justice Department is ceasing a troubling practice after an NPR story shed light on it in February.  Plea agreements that waive the right to seek compassionate release may be coming to an end.

The Background:  Plea Agreements and Compassionate Release

Most people charged with a crime do not take their case to trial.  The overwhelming majority of those accused of criminal activity resolve their case in what is known as a "plea agreement."

What is Plea Agreement?

A plea agreement is a contract between the government and an accused person.  The defendant agrees to change their plea from "not guilty" to "guilty."  This saves the government from having to prepare for a trial.

Usually a plea agreement means that each side gives up something and gets something in return:  the defendant gives up the right to bring forth witnesses and evidence that might be in their favor as well as cross-examine the government's witnesses.   The government loses the chance to bring their case in front of a jury of people from the community and in some situations, foregoes the ability to bring forth information that may increase the statutory minimum that a person can receive.  In exchange the government can secure a conviction instead of going to trial when a conviction is not guaranteed.  The accused person may be able to get certain charges dismissed in exchange for their plea.

The parties can agree to waive the right to pursue future litigation as well; usually this means that the defendant is waiving the right to bring forth a direct appeal or a motion to vacate except under certain circumstances.

What is a Compassionate Release?

A compassionate release (or reduction in sentence under 18 USC 3582) is a way for an inmate to ask the judge to reduce their time in prison after they have been sentenced. Inmates have only been able to seek this remedy by themselves since 2018's FIRST STEP Act; prior to that the Bureau of Prisons was the only person who could seek release for an inmate and they rarely did so.  The reasons for seeking a compassionate release widely vary but most of the requests are because of extraordinary and compelling circumstances as that term is defined by the courts.  Compassionate release became a vital tool to protect inmates from COVID-19 in 2020.

NPR:  Prosecutors are Limiting Compassionate Release

A recent article by NPR has indicated that some prosecutors are writing compassionate release waivers in their plea agreements.  The result of this has had a chilling effect on the seeking of compassionate release:

Federal prosecutors have been seeking to limit defendants' rights to win compassionate release from prison in plea negotiations across the country, a practice that advocates say undermines the intent of Congress and produces cruel outcomes.

Two advocacy groups — Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers — asked Deputy Attorney General Lisa Monaco on Tuesday to prohibit U.S. attorneys from including the "pernicious" language in plea agreements.

In a copy of their letter exclusively provided to NPR, the groups said at least six jurisdictions around the nation are using the provisions, either barring defendants from filing any motions for early release because of extraordinary medical or family conditions or limiting them to only one such request and barring appeals.

"We understand that the Department of Justice has an interest in ensuring the finality of a sentence, but we fear that recent behavior by [U.S. attorney's offices] place the interest of efficiency and finality above anything else, including the person's life and their rights under law," said the letter from Kevin Ring of FAMM and Martin Sabelli of NACDL.


The impact of this can hardly be overstated: Inmates have only had a short while to have access to compassionate release through the courts.  During that same short time and immediately after congress and the president signed into law the FIRST STEP Act, prosecutors started limiting compassionate releases by holding the threats of trial and the increased sentencing over the heads of the accused.  The news is compounded by the pandemic and its effects:  inmates with preexisting conditions that could make them susceptible to serious illness or death from COVID-19 could be barred from seeking reductions in sentence because of these plea agreements.
Prosecutors have an enormous amount of power, even in plea agreements.  A person who would want to plea but would not want to engage in such a waiver would be required to plea without a plea agreement, which has its own dangers.

NPR: A Blanket Waiver over Compassionate Release Should not be Upheld

NPR has indicated that the prosecutors will end this practice:

The Justice Department is directing prosecutors to stop limiting defendants' ability to seek compassionate release in most federal plea agreements, after advocates criticized the practice as cruel and against the intent of Congress.

DOJ officials handed down the order a month after an NPR story detailed the practice, which curtailed peoples' ability to petition for release from prison because of severe illness or other extraordinary circumstances. That story drew the attention of Attorney General Merrick Garland who this week said it seemed "wrong" and pledged to fix the issue.

In a new letter, members of the U.S. Senate also expressed alarm at the waivers, which they said had been used in Arizona, Indiana, Ohio, Oklahoma, South Carolina, Tennessee, Massachusetts, Maryland, and Illinois.

"This is a particularly pernicious practice because 97 percent of convictions are obtained through plea agreements," said a new letter from Senator Brian Schatz (D-Hawaii) and 15 other lawmakers.


Deputy Attorney General Writes Memorandum

Deputy Attorney General Lisa Monaco has submitted a memorandum to all prosecutors with a change in department policy.  You can read the original letter here (our office) or here (DOJ).  Below is the text of the memorandum.



SUBJECT: Department Policy on Compassionate Release Waivers in Plea Agreements 

Since enactment ofthe First Step Act in 2018, the "compassionate release" statute codified at 18 U.S.C. 3582(c)(l)(A) has permitted defendants to file motions on their own behalf seeking compassionate release in district courts. Such motions can be an important mechanism for relief where a defendant establishes, for example, a serious medical condition or a pressing family caretaking need. 

In response to Congress' amendment of Section 3582(c)(l)(A) and the filing of compassionate release motions by defendants, particularly during the COVID-19 pandemic, U.S. Attorney's Offices in different districts have adopted different approaches to compassionate release in plea agreements. The majority of U.S. Attorneys' Offices do not seek waivers ofa defendant' s right to file a motion under Section 3582(c)(l)(A) in plea agreements, but some offices have done so. Courts that have confronted the issue have held that a defendant may generally waive the right to file such a motion. 

Nonetheless, in order to ensure a consistent practice across the Department, as well as an approach that accords with the statute, the relevant guidelines promulgated by the Sentencing Commission, and the interests ofjustice, the Department now issues the following guidance: As a general matter, plea agreements should not require broad waivers ofthe right to file a compassionate release motion under Section 3582(c)(l)(A). Specifically, prosecutors should not, as a part ofa plea agreement, require defendants to waive: (1) the general right to file a compassionate release motion; (2) the right to file a second or successive such motion; or (3) the right to appeal the denial ofa compassionate release. Ifa defendant has already entered a plea and his or her plea agreement included a waiver provision ofthe type just described, prosecutors should decline to enforce the waiver. 

Notwithstanding the above, there are select instances in which it may be permissible for a U.S. Attorney' s Office to include or seek to enforce a much narrower form of waiver. These exceptions are for: (1) district-wide waivers negotiated with local defenders' offices, provided that the negotiated waiver does not categorically preclude the defendant from filing a first or successive compassionate release motion; (2) waivers that limit the permissible bases for a motion to those set forth in Section 1 B 1.13 ofthe Sentencing Guidelines, until that provision is amended by the Sentencing Commission; and (3) in exceptionally rare cases such as certain terrorism and homicide cases, waivers negotiated with defense counsel, subject to the nondelegable approval by the U.S. Attorney. If offices have questions about these exceptions, they should consult with the Criminal Division. 

Notes on the DOJ Memorandum

  1.  Exception #1 seems troubling for the idea of limiting the number of compassionate release motions to what appears to be two.  As we have noted, compassionate release motions can be grated for a wide range of reasons:  no-longer applicable enhancements, stacked 924(c) motions, sick loved ones, and many other types of reasons. There may be many reasons that someone would have to come back to court in the future.  Limiting the amount of motions may prevent perceived abuses, but there will be many appropriate cases that will also be prevented from filing.
  2. Exception #2 makes it clear that the compassionate release loophole is rearing its ugly head again.  We certainly hope that the Biden Administration fills the empty spaces on the sentencing commission.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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