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March 13, 2022

New DOJ memo says plea agreements should generally not require waivers of compassionate release rights

In this post last month, I spotlighted the news report that some federal prosecutors had been seeking to limit defendants' statutory rights to ever seek a sentence reduction or compassionate release under Section 3582(c)(l)(A).  This new NPR piece, headlined "Justice Department ends limiting compassionate release in plea deals after NPR story," reports on the encouraging news that Main Justice has a new directive on this matter to rein in this problematic practice.  Here are the basics:

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.

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.  "This is a particularly pernicious practice because 97 percent of convictions are obtained through plea agreements," said a new letter from Senator Brian Schatz (D-Hawaii) and 15 other lawmakers....

The lawmakers want the Justice Department to share how many people have signed federal plea deals that include those waivers. For now, they're relying on a few stories of people across the country.  One 65-year-old man in Arizona fought for months to withdraw his guilty plea after realizing it included limits to his ability to seek compassionate release. In another case, in northern California, Senior U.S. District Judge Charles Breyer called the limits "unconscionable" and "inhumane."

The new directive, obtained by NPR and 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."  The Justice Department memo said there are "select instances" where prosecutors still may ask for a "much narrower" waiver, such as "exceptionally rare" terrorism and homicide cases.

The two-page DOJ memo to all federal prosecutors, dated March 11, 2022, is available at this link, and here is its key paragraph: 

In order to ensure a consistent practice across the Department, as well as an approach that accords with the statute, the relevant guidelines promulgated by the Sentencing Commission, and the interests of justice, the Department now issues the following guidance: As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion under Section 3582(c)(l)(A). Specifically, prosecutors should not, as a part of a plea agreement, require defendants to waive: (1) the general right to file a compassionate release motion; (2) the right to file a second or successive such motion; or (3) the right to appeal the denial of a compassionate release.  If a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver.

Prior related posts:

March 13, 2022 at 10:12 PM | Permalink


It seems potentially appropriate to allow at least partial waiver of specified potential grounds in some cases where the potential ground is known and the Government has agreed to a sentencing discount on that basis. Stated differently, a defendant should either get consideration at the time of sentencing or at the time a CR motion is filed but should not be able to double dip.

Say the 30-year-old defendant has heart failure and a reduced life expectancy of ten years, so the Government is willing to recommend seven years instead of the Guidelines fifteen. The Government can't later get the sentencing discount changed if the LE estimate proves to be badly off, so it doesn't seem inequitable to hold the Defendant to it (or for the Government not to agree to a discount due to the LE estimate).

Posted by: Jason | Mar 14, 2022 2:02:53 PM

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