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California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision

The U.S. District Court for the Northern District of California rejected the plea agreement that required the defendant to waive his right to seek compassionate relief unless he exhausted all administrative rights of appeal for the Bureau of Prisons’ (“BOP”) failure to bring such a motion on his behalf.

The Court’s May 11, 2020, order began by asking, “Must a term of imprisonment be set in stone, no matter what happens after it is imposed?” It then posed a series of questions about what should occur if an “unforeseen tragedy,” such as “chronic illness, disability, or aging makes it impossible for the defendant to care for him or herself while incarcerated, terminal illness, and family tragedies that render the defendant the sole caretaker for an incapacitated partner or minor children.”

“What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?” the Court asked. It found that “Congress has provided one set of answers to these questions in the First Step Act of 2019,” but the “United States attorney’s office has very different answers in this case, for this defendant.”

At issue was the plea agreement offered to Allan Josue Funez Osorto, who was charged with conspiring to distribute controlled substances. That agreement required him to “not move the Court to modify my sentence under [18 U.S.C. Section] 3582(c)(1)(A)” until he fully exhausted administrative appeals for BOP’s failure to file such a motion on his behalf and the appeals are not finally resolved in 180 days.”

The Court noted that § 3582(c)(1)(A) allows a defendant to move the Court for compassionate release after fully exhausting all administrative appeals for BOP’s failure to file such a motion on his behalf or “the lapse of 30 days from the receipt of such request by the warden of the defendant’s facility.”

“[W]hile the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle,” wrote Judge Charles R. Breyer. The waiver is “unacceptable for two reasons. First, it undermines Congress’ intent in passing the First Step Act. Second, it is inhumane.”

The Court said “there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release.” It said the Government “has recently attempted to do exactly that in another case before this Court.”

A brief history of compassionate release from its creation by the Parole Reorganization Act of 1976 and BOP’s “dismal record” of applying the “extraordinary and compelling reasons” standard was detailed. An Inspector General report “found that in general the only requests given serious consideration were for inmates with life expectancies under twelve months.”

From 2006 to 2011, just 24 prisoners were granted compassionate release, and BOP did not approve a single non-medical request. In that time period, “twenty-eight defendants whose compassionate release requests had been approved by the Warden and Regional Director died waiting for the BOP Director to Act.” BOP’s lack of time standards upon which to act on a prisoner’s request are also a problem when one considers having to navigate its administrative appeals process.

“It was against this backdrop that Congress enacted the First Step Act’s amendments to § 3582(c)(1)(A),” wrote the Court. It said Congress made its intent clear, for the section’s amendment title was “Increasing the Use and Transparency of Compassionate Release.” While the eligibility standard went unchanged, the process to obtain it was altered to create circumstances upon which prisoners could bring the motion themselves.

Not only does the Plea Agreement neatly undo “Congress’s work,” “its effects are appallingly cruel,” the Court wrote. “Compassionate release matters” because it allows all concerned parties “to account for the tragically unforeseeable.” The Court cited several cases in which it received requests for early release from prisoners “who suffer from medical conditions that put them at high risk of death from COVID-19.”

It was noted that Funez Osorto could reject this term of the agreement if he wanted, but “he does so at his peril.” The Court noted the U.S. Attorney wields “enormous power” that creates a “Faustian choice [that] is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.” The Court went on to muse: “Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?”

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Related legal case

United States v. Osorto



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