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.