« Vera Institute of Justice issues new guidance brief urging action to respond to coronavirus in correctional facilties | Main | "Helping People Transition from Incarceration to Society During a Pandemic" »

May 12, 2020

Judge Breyer rejects plea agreement seeking to restrict defendant's statutory authority to pursue compassionate release

Amidst my review of the many federal sentence reductions under § 3582(c)(1)(A) that appear each day on Westlaw, a notable new opinion emerged from a notable judicial author.  Specifically, US District Judge Charles Breyer yesterday issued a 10-page "Order rejecting plea agreement" in US v. Funez Osorto, No. 19-cr-00381-CRB-4 (ND Cal. May 12, 20202) (available here).  For sentencing fans, Judge Breyer is notable in part because he is one of only two remaining active US Sentencing Commissioners (others might also think it notable that he is Justice Stephen Breyer's brother).  And the Funez Osorto opinion is notable for its rejection of a plea agreement based on a provision that is especially relevant in these pandemic days. 

I recommend the full Funez Osorto opinion, and here is a small taste including its start and finish:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed?  Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences?  What if the defendant’s children are effectively orphaned by the death of their other parent?  What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it?  What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?  What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?  When should a court be able to consider such events and revise a previously imposed sentence accordingly?  How difficult should it be for a defendant to request this type of relief?

Congress has provided one set of answers to these questions, in the First Step Act ..... The United States attorney’s office has very different answers in this case, for this defendant.  Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement....

The point is this: while the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle. It is far narrower than the avenues to relief provided by § 3582(c)(1)(A), and too narrow to provide meaningful relief in many of the circumstances that would render Funez Osorto eligible for relief.  And there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release. It has recently attempted to do exactly that in another case before this Court.  That result is unacceptable for two reasons.  First, it undermines Congress’s intent in passing the First Step Act.  Second, it is inhumane....

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.  See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010).  As to terms such as this one, plea agreements are contracts of adhesion.  The Government offers the defendant a deal, and the defendant can take it or leave it.  Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”).  If he leaves it, he does so at his peril.  And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.  See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940).  Now imagine the choice the Government has put Funez Osorto to.  All that power — and the all too immediate consequences of opposing it — weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass.  That Faustian choice 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.

That leaves only one question, which is why?  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.

Judge Breyer asks a lot of good questions throughout this great opinion, but the final one seems to me to be depressingly easy to answer. He asks: "Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?".  The answer, as I see it, is that so many prosecutors get so accustomed to exercising their tremendous discretion in this way that it now seems to be a professional expectation.

May 12, 2020 at 01:55 PM | Permalink


The plea agreement that Judge Breyer rejects here, because it requires the defendant to waive his right to seek compassionate release, reminds me of a kind of plea agreement that the Kentucky Supreme Court has also found unConstitutional and unethical. There is a 1965 Kentucky Court of Appeals case (the Kentucky Supreme Court was not created until 1975, in a judicial reorganization) that overturns a defendant's sentence (following a jury trial) to banishment from the county where he was convicted. See, "Weigand v. Commonwealth", 397 S.W.2d 780 (Ky. 1965). Despite that opinion, prosecutors in Kentucky persisted for decades in including banishment clauses in plea agreements, by believing that this is a right that the defendant can waive by entering into the contractual plea agreement. Finally, about 2018, the Kentucky Supreme Court decided a case where they held that the punishment of banishment is not a waivable term, and can never be a part of the defendant's sentence, whether following a trial or as part of a plea agreement. That term is just as egregious, if not more so, that asking a defendant to waive his right to seek compassionate release.

Posted by: James Gormley | May 12, 2020 4:27:17 PM

The Kentucky Supreme Court's later decision about banishment clauses in plea agreements is Q. M., a child under eighteen v. Commonwealth of Kentucky", 459 S.W.3d 360 (Ky. 2015). Despite this clear authority, some eastern Kentucky prosecutors still try to get defendants to agree in plea agreements to banishment from the county or from the entire state of Kentucky for a period of years, in lieu of incarceration. Just unconscionable.

Posted by: James Gormley | May 12, 2020 6:44:17 PM

The judge asked questions we have asked for years now. Seems like my husband Federal Public Defender in DC is stalling to put his motion in. He got his case at the peak of the pandemic and still has not filed a motion. It still feels good to see them get released (prisoners).

Posted by: Confidential | May 12, 2020 9:05:17 PM

Do you know of this new form they are giving prisoners in FCI Petersburg Medium saying that the form is the OFFICIAL form to request compassionate release no other method is valid according to the Warden at FCI Petersburg.

Posted by: Private | May 13, 2020 8:47:58 PM

That Warden at FCI - Petersburg, Virginia is not an attorney.

Posted by: James Gormley | May 14, 2020 3:41:35 PM

Right. He is a &%*hole the inhumane conditions at that place is unreal!

Posted by: Private | May 15, 2020 10:05:26 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB