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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.

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.

"We understand that the Department of Justice has an interest in ensuring the finality of a sentence, but we fear that recent behavior by [U.S. attorney's offices] place the interest of efficiency and finality above anything else, including the person's life and their rights under law," said the letter from Kevin Ring of FAMM and Martin Sabelli of NACDL.

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."

"What if the defendant's children are effectively orphaned by the death of their other parent? What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it? What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?" Breyer wrote.

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

Congress created way to petition federal court for compassionate release in 2018

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.

Ring, of FAMM, said the Justice Department's limits on compassionate release are "disgusting."

"I am sure responding to lots of compassionate release motions can be a nuisance for prosecutors, but trust me, that's nothing compared to battling a deadly disease in prison during a global pandemic," he said.

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.

Part of the problem: The Sentencing Commission lacks a quorum

The advocates said the situation is even more fraught legally because the Sentencing Commission, a federal body that sets advisory guidelines for punishment in federal cases, has been all but unable to operate. There are six vacancies on the panel, with only Breyer in place as acting chairman. The commission has lacked a quorum for three years.

Among the work on its to-do list: defining what amounts to "extraordinary and compelling circumstances" that might merit an early release from prison.

The paralysis at the commission  has grown so acute that Supreme Court Justice Sonia Sotomayor, joined by Justice Amy Coney Barrett, referenced it last month.

"I hope in the near future the Commission will be able to resume its important function in our criminal justice system," Sotomayor wrote.

Breyer, the brother of retiring Supreme Court Justice Stephen Breyer, responded with his own plea for action from the Biden administration last month.


"It is critical that the White House nominate and the Senate confirm enough commissioners to allow the Commission to resume its important statutory function of updating the guidelines to address new policies, circuit conflicts, and changes in law," he said in a statement. "It is particularly frustrating that the Commission has been unable to implement significant changes made by the First Step Act of 2018, including changes to the procedures by which an offender can seek compassionate release."


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Carrie Johnson

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The Justice Department has been limiting the ability of people in prison to apply for compassionate release. Advocates say that flouts Congress and is cruel.

The U.S. is limiting compassionate release in plea deals. Many say that's cruel

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