DOJ issues guidance against US Attorneys requiring Defendants to waive their right to file for Compassionate Release as part of their plea agreement.

The Federal Docket

March 10, 2022

Last month, NPR published a story regarding a common practice in some U.S. Attorney’s Offices of requiring a defendant who is negotiating a plea deal to waive his or her right to file a motion for a sentence reduction or compassionate release in the future. In some jurisdictions, defendants who wish to negotiate a plea agreement with the government must waive their right to ever file a motion for a sentence reduction. In others, they agree to only file one, and without the ability to appeal if they lose. Recently, however, Attorney General Garland has stated that the Department of Justice will be issuing new guidance soon ending this practice.

That guidance was issued March 11, 2020. In part it states:
“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.”

The practice was widely criticized by different advocacy groups as undermining Congress’s intent behind the First Step Act, which for the first time allowed inmates to file motions for sentence reductions, and producing cruel outcomes. After all, motions for compassionate release are often based on medical conditions or family circumstances that don’t come up until after the defendant has started their sentence. A defendant who developed terminal cancer may not be able to ask for release based on a waiver they signed years ago when they pleaded guilty and were healthy.

Click here to read the DOJ memo.

Click here to read FAMM’s statement regarding the DOJ’s recent change of position.

Click here to read the NPR article.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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