Prosecutors in the federal Northern District of California — which encompasses most of the San Francisco Bay Area — have amended the controversial practice of requiring that defendants agree not to seek compassionate release from prison as part of a plea deal, according to the local U.S. Attorney, additional information available here.
Some federal prosecutors across the United States have routinely required that in plea agreements, defendants either agree not to seek compassionate release in the event they become terminally ill while in prison, or delay making such a request for several months. It is a practice that has come under fire amidst the COVID-19 pandemic. In United States v. Funez Osorto, No. 19-cr-00381-CRB-4 (N.D Cal. May 11, 2020), one federal district judge called it "appallingly cruel" and rejected a pending plea deal until a six-month delay for compassionate release motions was removed. The Court wondered why the provision was included in plea agreements:
Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion? Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner. Inspector General Report at 49–50. And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities. Id. at 45–48. The waiver of compassionate release is senseless.
In his decision, the judge cited other cases where government prosecutors had opposed compassionate releases that he granted over their objections. One of those was that of Michael Gerard Trent who was serving a 54-month sentence. Trent was already scheduled to be released on December 14, 2020, and had served nearly 90% of his sentence. In April, Trent filed a motion for Compassionate Release amid the COVID-19 outbreak stating that he was 65 years old, diabetic, HIV-positive, and someone with substantial underlying medical conditions. Prosecutors opposed Trent’s motion stating that Trent waived his rights to ask for compassionate release in his plea agreement and had not properly exhausted his administrative remedies in the Bureau of Prisons. On April 9, the Court ordered Trent's release.
"The Court has received requests for early release from multiple defendants who suffer from medical conditions that put them at high risk of death from COVID-19," the federal judge wrote in his order dismissing a plea deal for a man charged with a drug offense. "When these men were sentenced, nobody could have predicted that a relatively brief term of imprisonment could be rendered a death sentence by an unprecedented pandemic." In response to that Court's mid-May order, Northern California U.S. Attorney David Anderson wrote that his office has removed the compassionate release waiver "from all pending plea offers including the plea agreement questioned by the Court in this case."