Coronavirus brings change in compassionate release requests

Bay Area federal judge has called former practice ‘appallingly cruel’

Prosecutors in the federal Northern California District, which encompasses most of the Bay Area, have amended the practice of requiring that criminal defendants agree not to seek compassionate release from prison as part of a plea deal, according to the local U.S. Attorney.

For years, federal prosecutors across the United States have routinely required that defendants who want to settle their cases either agree not to seek compassionate release in the event they become terminally ill while in prison or delay making such a request for several months.

It is a longstanding practice that has come under fire amidst the COVID-19 pandemic. In mid-May, one federal judge in California called it “appallingly cruel” and rejected a pending plea deal until a six-month delay for compassionate release motions was removed.

“The Court has received requests for early release from multiple defendants who suffer from medical conditions that put them at high risk of death from COVID-19,” U.S. District Judge Charles Breyer wrote in his order dismissing a plea deal for a man charged with a drug offense. “When these men were sentenced, nobody could have predicted that a relatively brief term of imprisonment could be rendered a death sen

tence by an unprecedented pandemic.”

In response to Breyer’s mid-May order, Northern California U.S. Attorney David Anderson wrote that his office has removed the compassionate release waiver “from all pending plea offers including the plea agreement questioned by the Court in this case.” Federal prosecutors only had the waiver in place to ensure only “motions with the most potential

merit” would go forward, he wrote.

A spokesman for Anderson’s office said a 30-day delay may be imposed, in lieu of six-month waiting periods. Since March, federal judges in Northern California have heard 200 compassionate release motions, according to the local U.S. Attorney’s office.

In a response to Anderson issued May 28, Breyer questioned why — given that prosecutors can argue against a compassionate release based on the merits of the motion — a waiver would still be necessary.

“The Court can think of

only one answer,” he wrote. “If the Government doubts that it will prevail on the merits, waiver gives it an ace in the hole.”

To be granted a compassionate release, petitioners must show an “extraordinary and compelling reason” for why their sentence should be cut short, including terminal illness, substantial mental deterioration or a family emergency on the outside. Courts have been split on whether a higher risk to COVID-19 qualifies; when federal judges have ruled against a release, they’ve often required the petitioner to

prove their federal prison is less qualified to treat them than an outside hospital if they test positive for the virus, according to a DOJ memo.

Until last year, when Congress passed the First Step Act, anyone who wanted a compassionate release had to apply for one through the prison system. Now such motions can be heard in front of a federal judge, but the First Step Act still allows for waivers or delays to be built into plea deals.

In the pre-COVID-19 era, compassionate release waivers were an afterthought.

The pandemic has put them in the forefront, as the Bureau of Prisons continues to release thousands in an effort to prevent the spread of the virus in federal jails and prisons. So far, 116 federal inmates have died from the virus, and there have been nearly 12,000 tests. Roughly 7,600 people have been released from prisons to home detention, according to BOP data.

Those who have already agreed to the waiver, and either come down with a terminal illness or have pre-existing conditions that put them at risk to die

from COVID-19, are faced with a dilemma: take their chances in prison, or apply for a release and risk federal prosecutors arguing that they’ve forfeited their plea deals, which typically include a more lenient sentence.

Tens of thousands of people are charged with federal crimes each year (80,000 in 2018, for instance). Of those, roughly 90% accept a plea deal, while only 2% are taken to trial, according to a study by the Pew Research Center.