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 (article available here).
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.
"In a justice system where pleading guilty is highly incentivized and defendants generally do not have leverage to push back against prosecutors, including terms in a plea agreement that require a defendant to relinquish his right to seek a review of his sentence under 'extraordinary and compelling' circumstances appears unduly coercive," the Senators wrote.
The new directive, signed by Deputy Attorney General Lisa Monaco, said that the majority of U.S. attorneys have not been requiring defendants to waive their rights to ask for compassionate release. Still, she said, making the change apply nationally is important as a matter of consistency and "in the interests of justice."
"As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion," Monaco wrote in a memo dated March 11. Monaco added that if defendants had already entered a plea, prosecutors should "decline to enforce the waiver." Notwithstanding the new policy directive, the memo recognized "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 expeceptions 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.
Federal courts granted release to a quarter of the 7,000 people who applied for release in fiscal year 2020, according to a new report from the U.S. Sentencing Commission.