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.
"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 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.
Kevin Ring, president of the prisoner advocacy group FAMM, which alerted DOJ officials to the practice, said he was "mostly pleased" with the change.
"It will stop federal prosecutors from demanding that all defendants who plead guilty give up their right to seek compassionate release, even when they are terminally ill," Ring noted. "That sort of coercion is grotesque and doesn't improve public safety. We are grateful the Department moved quickly to stop that."
But, Ring said, he's concerned the memo authorizes prosecutors to negotiate "narrower" waivers, which would require defendants to give up some rights under circumstances that most appeals courts now recognize as extraordinary or compelling. For instance, he said, judges released a person who needed to take care of a dying parent, and others in prison whose medical care there was deemed dangerous. But they may have had to stay in prison under the narrower waivers.
Compassionate release became crucial lifeline for many during pandemic
The compassionate release program has become a crucial lifeline for people in prison during the coronavirus pandemic, even if the petitions are still granted rarely.
Federal judges 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. The Commission said that was a twelve-fold increase from the prior year. Judges cited health concerns about COVID-19 in the vast majority of their release decisions.
The Federal Bureau of Prisons rarely grants prisoners' requests, so Congress made it easier to apply directly to a federal judge for compassionate release as part of the bipartisan First Step Act in 2018.
Breyer, the senior district judge and Acting Chairman of the Sentencing Commission, said the report is the result of an extensive research effort. And he once again called on the Biden Administration to fill several vacancies on the panel, which has been blocked from updating sentencing guidelines because it lacks enough members to operate.
"This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release," Breyer added.
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