Criminal Justice

Federal Judge Calls Plea Bargain Deals That Limit Compassionate Release 'Appallingly Cruel'

Congress expanded compassionate release to allow inmates to petition judges, but federal prosecutors tried to use plea bargain agreements to subvert reforms, the judge says.


A federal judge in San Francisco criticized federal prosecutors on Monday for including language in a plea bargain that sharply narrowed the defendant's rights to request compassionate release under recent criminal justice reforms passed by Congress, calling the proposed deal "appallingly cruel," "unconscionable," and "inhumane."

Judge Charles Breyer of the U.S. District Court for the Northern District of California rejected a proposed plea agreement between the U.S. Attorney's Office for Northern California and defendant Allan Josue Funez Osorto, who is facing federal drug charges. Breyer found that the plea agreement's language subverted the provisions of the FIRST STEP Act, which was passed by Congress in late 2018.

"Although Congressional intent alone would be sufficient reason to reject the Plea Agreement, there is another reason that the compassionate release waiver renders it unacceptable," Breyer wrote. "Plainly put, its effects are appallingly cruel."

Compassionate release is a policy within the Bureau of Prisons (BOP) that allows inmates who are terminally ill, disabled, or who have unforeseen family tragedies to petition for early release. However, the BOP's petition process was arbitrary, inscrutable, and interminable. Between 2014 and 2018, at least 81 federal inmates died while waiting for the government to review their applications. To fix this problem, Congress expanded compassionate release under the FIRST STEP Act, giving inmates the ability to petition judges for release if the BOP ignored their request for more than 30 days.

This judicial escape hatch has become even more important in recent months. In an effort to alleviate potentially deadly outbreaks of COVID-19, Attorney General William Barr directed the BOP to use compassionate release and other methods to get elderly and at-risk inmates out of federal prisons.

Osorto's plea agreement would have required him to waive his right to petition a judge for compassionate release after 30 days of BOP inaction. Instead, he would have to exhaust his administrative remedies through the BOP ("no mean task," Judge Breyer noted) or wait 180 days.

"What's worse—that this is a disgusting use of prosecutorial power? Or that it's completely unsurprising?" says Kevin Ring, president of the criminal justice group FAMM, which has advocated for expanded compassionate release for many years. "These types of abuses will not end until more judges do what Judge Breyer did here and call them out."

U.S. Attorney for the Northern District of California David Anderson told that his office changed the waiver language last week after hearing from local defense attorneys:

"We are working hard to protect the community one case at a time. Nothing in the record suggests this defendant Funez Osorto is particularly at any unusual health risk," Anderson said. Anderson said that in older cases, where the office had negotiated a full waiver of compassionate release, the office has allowed prisoners to bring compassionate release motions "where we thought such a waiver would be fair to the defendant." 

Breyer noted in his order that federal prosecutors had recently used similar waivers to oppose compassionate release petitions filed in his court.

"That result is unacceptable for two reasons," Breyer wrote. "First, it undermines Congress's intent in passing the First Step Act. Second, it is inhumane."

Noting the BOP's "dismal record" on compassionate release, the judge concluded that "because this waiver provision undermines Congressional intent and is an unconscionable application of a federal prosecutor's enormous power to set the terms of a plea agreement, the Court cannot approve of the proposed Plea Agreement in this case."

So far, 49 federal inmates have died of complications from COVID-19. More than 3,300 inmates and 250 BOP staff are infected, according to the latest numbers from the BOP. Those deaths include a woman who was sent to federal prison for a nonviolent drug crime while in her third trimester of pregnancy.

Although Attorney General Barr ordered the BOP to identify and release at-risk inmates, advocacy groups and family members of inmates say confusing rule changes, resistance from prison wardens, and a generally slow process have hamstrung the federal government's efforts. In many cases, inmates were told they had been approved to go home, put in pre-release quarantine, and then abruptly told they were no longer eligible and sent back.

In a letter to Congress yesterday, a group of federal public defenders warned that the Department of Justice (DOJ) and the BOP "have made little use of these authorities to reduce prison populations and enable social distancing."

"Despite repeated Congressional directives that DOJ use compassionate release expansively during this crisis," the federal defenders wrote, "BOP facilities have refused to accept or review compassionate release requests and prosecutors have adopted a nearly default opposition to release."

NEXT: No, 68 Percent of Americans Did Not Say They Would Avoid 'Normal Life' Until There's a Coronavirus Vaccine

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I wonder what would happen if someone who cared more about justice than winning became a prosecutor? I’m thinking they’d probably be forced out of the job, like cops who respect the law.

    1. >>someone who cared more about justice than winning became a prosecutor

      impossible in this universe.

    2. We elect our local prosecutors -but obviously not the federal ones – and recently, at least locally, we’ve elected a couple who campaigned on reform-oriented platforms. I think it’s very difficult on them, for several reasons.

      1. People who don’t care as much about winning don’t do well in the political landscape, so you really only get people who have a strong desire for winning in the field of candidates.

      2. Even the reform-minded prosecutors still have to work within a system that isn’t necessarily reform-minded. The city prosecutor here has faced enormous resistance from the police (union, anyway), for instance. Some of it is justified and some of it is not.

      3. Your political opponents will use your losses in court, or in some cases, your refusal to bring charges, against you. In the media, in political campaigns, etc. You’ll be tarred as ‘soft on crime’. If you’re letting people out of prison early, or not sending them there in the first place, they’ll attack you for that too. If the crime rate goes up it’s your fault for not keeping criminals in jail. If it goes down, that’s only because you’re not prosecuting them, obviously.

      1. Very well put. And it’s also extremely maddening. The whole “tough on crime” shtick is mostly bullshit anyways. Prosecutors aren’t super heroes. They don’t crimes from happening. They’re job is try to lock up the bad guys (it should be to seek justice, but we know that’s not what happens). Presumably, most the extremely egregious crimes aren’t that hard to prosecute. Plus, most people take pleas anyways.

        What pisses me off is all the borderline cases that they overcharge to force people to plead guilty to shit they’re not guilty of. Most people don’t want to risk a trial – even when innocent. Where is the societal benefit to locking up people who may be innocent, or locking up nonviolent offenders?

        I imagine a lot of these issues would go away if we ended the war on drugs, but then the police would actually have try solve real crimes…

  2. Who wants to be labeled as a “soft on crime” politician? Why not just say you hate babies, baseball, and apple pie?

  3. BOP facilities have refused to accept or review compassionate release requests and prosecutors have adopted a nearly default opposition to release.

    Defy the law and you go to prison. Unless…

  4. Did the guy get fewer years in jail (or some other consideration) in exchange for waiving his right to petition for compassionate release? If so then what’s the issue?

Please to post comments

Comments are closed.