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Federal Prosecutors Directed to Stop Obtaining Compassionate Release Waivers From Defendants During Plea Agreements and to Not Enforce Previously Obtained Waivers

by Harold Hempstead

On March 11, 2022, the Deputy Attorney General of the U.S. Department of Justice (“DOJ”) issued a Memorandum directing federal prosecutors to stop the practice of requiring defendants, as part of their plea agreement, to waive their rights to pursue compassionate release under 18 U.S.C. § 3582 (c)(l)(A).

The compassionate release statute allows a defendant in the Federal Bureau of Prisons to seek early release for “extraordinary and compelling circumstances,” like a terminal diagnosis or the death of the sole caretaker for their children.

Since the 2018 enactment of the First Step Act, prosecutors have adopted different approaches to requiring defendants, as part of their plea agreements to waive their right to pursue compassionate release after their incarceration.

According to the advocacy groups, Families Against Mandatory Minimum (“FAMM”) and the National Association of Criminal Defense Lawyers (“NACDL”), federal prosecutors in at least six jurisdictions across the nation are requiring defendants in plea agreements to either waive their right to file a motion for compassionate release or agree to file only one such request and prohibiting the filing of an appeal if their request is denied.

Shanna Rifkin, the deputy general counsel of FAMM commented, “Individuals pleading guilty cannot know if their future holds a terminal medical condition, the death of the sole caregiver for their children, among many other tragic circumstances.”

Senior U.S. District Judge Charles Breyer, who is also the brother of retiring Supreme Court Justice Stephen Breyer, called the practice of limiting compassionate release “unconscionable” and “inhumane.”

U.S. Attorney General Merrick Garland told NPR in a March 10, 2022, interview that he read a report by the news agency about prosecutors requiring defendants in plea agreements to waive their right to seek compassionate release, it is wrong, and the DOJ is going to be issuing new policies to prevent the practice.

The following day, the Deputy Attorney General issued a Memorandum to all federal prosecutors setting forth the “Department policy on compassionate release waivers in plea agreements.”

The Memorandum states that prosecutors should not require defendants, as part of a plea agreement, to waive: (1) their right to file a motion for compassionate release; (2) their right to pursue a second or successive motion; or (3) their right to file an appeal. The Memorandum also directs prosecutors to not enforce waivers of the foregoing type that defendants previously agreed to as part of a plea agreement.

The Memorandum also states, that “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: (1) districtwide 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 basis for a motion to those set forth in Section 181.13 of the Sentencing Guidelines, until that provision is amended by the Sentencing Commission; and (3) in the exceptionally rare cases such as certain terrorism and homicide cases, waivers negotiated with defense counsel, subject to the non-delegable approval by the U.S. Attorney.” 




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