Spotlighting the ugly problem of federal prosecutors seeking waivers of future statutory rights to seek compassionate release

In this post a couple of years ago, I flagged an opinion by US District Judge Charles Breyer in US v. Funez Osorto, 445 F. Supp. 3d 103 (N.D. Cal. 2020), in which he rejected a plea agreement based on a provision that sought to dramatically limit the defendants’ statutory rights to pursue future compassionate release motions.  Today I see this new NPR article discussing complaints about this practice, and here are excerpts:

Federal prosecutors have been seeking to limit defendants’ rights to win compassionate release from prison in plea negotiations across the country, a practice that advocates say undermines the intent of Congress and produces cruel outcomes.

Two advocacy groups — Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers — asked Deputy Attorney General Lisa Monaco on Tuesday to prohibit U.S. attorneys from including the “pernicious” language in plea agreements.

In a copy of their letter exclusively provided to NPR, the groups said at least six jurisdictions around the nation are using the provisions, either barring defendants from filing any motions for early release because of extraordinary medical or family conditions or limiting them to only one such request and barring appeals….

The Justice Department had no comment on the advocates’ letter.

Compassionate release is designed to give people in prison facing extraordinary or compelling circumstances a way to seek early release.  The Bureau of Prisons rarely approved such requests, so in 2018 Congress gave prisoners the ability to petition a federal court for freedom, under the First Step Act. More than 4,000 people have used that provision to win release….

Well over 90% of federal prosecutions end in guilty pleas, so the language in plea agreements carries enormous impact. “Individuals pleading guilty cannot know if their future holds a terminal medical condition, the death of the sole caregiver for their children, among many other tragic circumstances,” said Shanna Rifkin, deputy general counsel of FAMM.

I have long thought that nearly all appeals waivers, as well as related collateral review waivers, are legally problematic and ought to generally be considered void as against public policy.  Though a criminal defendant trying to secure some remedy or release through an appeal or release motion is obviously the one most directly impacted by any and all possible future litigation over his sentence, the public also has a significant interest in a sentencing system that functions without significant error and that does not spend money on incarceration ineffectively and inefficiently.  Appeal waivers insulate all sorts of potentially significant sentencing errors from scrutiny and review, and waivers of other release or collateral motions can block efforts by prisoners to soundly and properly use existing legal mechanism to secure review of potentially excessive or unnecessary prison terms.

Congress amended the procedures for sentence reduction motions known as compassionate release through the FIRST STEP Act of 2018 precisely because it concluded that the executive branch in the form of BOP and DOJ could no long be trusted to be good stewards of this important sentence-review mechanism.  The amended process gives defendants, after seeking BOP support for a motion, the statutory to bring a motion directly to the judiciary.  Any efforts by the executive branch to reclaim sole authority over such motions though plea provisions runs directly contrary to what Congress duly provided in law as the new policy and procedure for these matters.  Consequently, such waivers should be, in my view, deemed unenforceable and void as against the public policy enacted by Congress via FIRST STEP.