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 Waiving Your Right To Compassionate Release? 

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Michael Santos

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Criminal justice advocacy groups have asked the Department of Justice (DOJ) to stop federal prosecutors around the country from including compassionate release waivers in plea deals. 

People in the middle of federal plea negotiations should be aware that this may come up in their case and deserves special attention.


The Federal Bureau of Prisons (BOP) is notorious for routinely denying people’s compassionate release requests, even those with significant health risks during a global pandemic.

However, under the First Step Act of 2018, when a prison warden denies or fails to act on a compassionate release request within 30 days, people have the right to ask a federal judge to review their request for compassionate release. In addition, it is no longer only up to the BOP to file a compassionate release motion.

Significantly, people do not have to exhaust administrative remedies,   which can take many months, before involving a federal court. 

What is federal compassionate release?

A compassionate release qualifies federal prisoners for early release from prison when they present extraordinary or compelling circumstances that the court could not have reasonably foreseen at the time of sentencing.

See below for more information:

Interplay Between Compassionate Release And CARES Act Early Release to Home Confinement

Since COVID-19, people refer to early release to home confinement under the CARES Act as “compassionate release.” 

However, many people in prison who do not qualify for CARES Act release to home confinement can still apply for compassionate release under the laws pre-existing the pandemic.

Traditional compassionate release is one of two ways that federal prisoners have sought an early release from prison during the pandemic. 

It is available to people who may not qualify for early release to home confinement under the CARES Act. For example, CARES Act early release to home confinement requires a PATTERN score of minimum or low, or the approval of the prison warden. 

As shown below, the process for traditional compassionate release–which amounts to a sentence reduction– is not as simple, and the BOP is extremely close-fisted in granting. In the year before COVID, 1,735 federal prisoners applied for compassionate release, and the BOP approved a mere 55 requests.

The US Sentencing Commission’s Grounds For Compassionate Release

For traditional compassionate release, the US Sentencing Commission recognizes four broad scenarios in which compassionate release may apply: medical, age, family circumstances, or other extraordinary and compelling situations.

1. Medical Condition
People in prison may qualify for compassionate release if they have:

• A terminal illness which will lead to the end of life, even if there is not a specific prognosis of life expectancy; OR
• A physical or mental condition: That substantially diminishes the prisoner’s ability to provide self-care in prison;
• From which the prisoner is not expected to recover; and The condition should be a Serious medical or mental health condition;
• Serious functional or cognitive impairment; or Deteriorating physical or mental health conditions due to the aging process. 

2. Age
People in prison may qualify for compassionate release if they are:

• At least 65 years old; 
• Experiencing serious deterioration in physical or mental health due to age; and 
• Have served at least 10 years or 75 percent of the sentence, whichever is less. 
3. Family Circumstances
People in prison may qualify for compassionate release if they experience
• The death or incapacitation of the caregiver of their minor child(ren), or • Incapacitation of their spouse or registered partner, for whom they are the only available caregiver.
4. Other ReasonsPeople in prison may qualify for compassionate release if the Director of the BOP finds that they are facing extraordinary and compelling reasons other than, or in combination with, issues of age, medical or family circumstances.


The BOP’s Grounds For Compassionate Release

The BOP, which overwhelmingly fails to grant people compassionate release, has its own grounds. The BOP’s grounds are more narrow than the grounds encouraged by the Sentencing Commission.

Traditionally, the BOP recognizes 5 specific grounds for compassionate release and does not include any allowance for “other extraordinary or compelling” circumstances:

1. Specified medical circumstances
People may qualify for compassionate release on this ground if they:

• Have a “terminal medical condition” defined as “a terminal, incurable disease and a life expectancy of 18 months or less;” or 
• Have a “debilitated medical condition,” defined as “having an incurable, progressive illness or having suffered a debilitating injury from which they will not recover,”

The Person must be:

• Is completely disabled, meaning the prisoner cannot carry on any self-care and is totally confined to a bed or chair; or
• Is capable of only limited self-care and is confined to a bed or chair more than 50 percent of waking hours.

2. Elderly Inmates with certain medical conditions
People may qualify for compassionate release on this ground if they:

• At least 65 years old; 
• Suffer from chronic or serious medical conditions related to the aging process;
• Are experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility;
• Are not promised substantial improvement to their mental or physical condition based on conventional treatment; and
• Have served at least 50 percent of the sentence.
3. Other Elderly Inmates
People in prison may qualify for compassionate release if they experience
• which covers people who are at least 65 years old and have served the greater of 75 percent of their sentence or 10 years, whichever is greater.
4. Incapacitation of Child Caregiver, as specified by BOP
People may qualify for compassionate release on this ground if:
• The family member caregiver of their child(ren) has died or become incapacitated due to severe injury or illness that makes them incapable of caring for the child(ren);

• The BOP decides that the person’s release is in the best interests of the child(ren);

• Their biological or adopted child(ren) are under age 18; and

• They are the only family member capable of caring for the child(ren).
5. Incapacitation of a Spouse, as specified by BOP
People may qualify for compassionate release on this ground if:
• Their spouse or registered partner is totally confined to a bed or chair and cannot carry on any self-care or has a severe cognitive deficit; and
• They are the only available caregiver for the spouse or registered partner.


The BOP’s Failure to File For Compassionate Release

To no one’s surprise, the BOP rarely files compassionate release motions on behalf of federal prisoners. It also follows much narrower grounds for compassionate release than those from the US Sentencing Commission.

In an effort to expand the review of cases for compassionate release the First Step Act now allows federal prisoners to take their requests to a federal judge as soon as 30 days after asking the BOP first.

The Marshall Project recently gathered sobering statistics about the BOP and compassionate release. Their reports are based on data the BOP sent to Congress in September 2021. A few of the most salient facts are published at: PLN: Federal BOP Overwhelmingly Denies Compassionate Release:

  • In 2019, pre-pandemic, 1,735 federal prisoners applied for compassionate release. 
  • The BOP approved 55 requests, an approval rate of a little over 2%.
  • During the first three months of the COVID-19 pandemic, the BOP rejected or ignored 98% of compassionate release requests.
  • Out of 31,000 requests for compassionate release in the wake of COVID-19, the BOP had approved just 36 compassionate release requests, which represents an approval rate of 0.1%. 
  • BOP data produced for Congress shows that through Fall 2021, there had been 3,221 compassionate releases secured since COVID began and 99% of them were granted by federal judges over the objection of the BOP. 
  • Of the 256 federal prisoners who died of COVID, 35 were awaiting a decision on their early release paperwork.

Some of the reasons the BOP gives for rejecting the overwhelming majority of prisoner requests for compassionate release, even during a pandemic, are: 

  • opposition from prosecutors, 
  • the lack of a release plan, or 
  • severity of the offense and not wanting to minimize the prisoners’ offense. 

Since the First Step Act, prisoners can bring their request to a federal court once the BOP ignores them or denies their request. 

Waiver of Compassionate Release in Plea Deals 

The number of compassionate release motions flooding the courts during the pandemic is no surprise. Presumably overwhelmed, 

Federal prosecutors across the United States are now regularly asking criminal defendants to limit or altogether waive their rights to compassionate release as part of the plea deal. 

Of course, prosecutors often force people entering into plea deals to waive other important rights, such as the right to appeal. Prosecutors claim that waiving the right to appeal, for example, fosters finality and saves resources for everyone involved. However, a compassionate release opportunity is for unforeseen circumstances, so people have no idea what they are waiving at the time of the plea bargain. 

The impact of this practice could be extraordinary. Over 90% of federal cases result in guilty pleas. If compassionate release waivers became as commonplace as the waiver of appeal rights, let’s say, what would be left of traditional compassionate release?

In essence, as a condition of getting a reasonable plea deal, prosecutors expect people to agree to serve a prison term with limited or no opportunity to ask a court for help should their circumstances unexpectedly change for the worse. 

Criminal reform advocates are rightly sounding the alarm about this practice, which undermines the intent of Congress. In particular, two criminal justice reform advocacy groups — FAMM (Families Against Mandatory Minimums) and the NACDL (National Association of Criminal Defense Lawyers) — have asked Deputy Attorney General Lisa Monaco to ban US attorneys from seeking such a waiver. 

FAMM’s and NACDL’s joint letter indicates that at least 6 US Attorney’s Offices around the country are including these waiver provisions in plea agreements.

These provisions will bar defendants from filing motions for compassionate release, or limit defendants to file only one compassionate release request during incarceration with no appeals. 

Simply put, what legitimate interest does the waiver serve? Does the government’s interest in an efficient and final resolution of criminal cases give them the right to curtail people’s fundamental human rights?

“We understand that the Department of Justice has an interest in ensuring the finality of a sentence, but we fear that recent behavior by [federal prosecutors] place the interest of efficiency and finality above anything else, including the person’s life and their rights under law,” says the letter from FAMM and NACDL to DOJ.

What’s more, many people do not realize that these provisions are in their plea agreements! NPR National Justice Correspondent Carrie Johnson shares the case of a 65-year-old man in Arizona who did not realize at first that his guilty plea limited his ability to seek compassionate release. The man fought for months to withdraw his guilty plea after realizing there this, which is not easy to do in federal court. 

Another case in northern California was before Senior US District Judge Breyer Charles, who called such limitations or waivers “unconscionable” and “inhumane.” 

Judge Breyer specifically noted:

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?” 

We hope that the DOJ will respond to the letter from FAMM and NACDL by banning this practice, which serves no legitimate countervailing purpose. FAMM representative Kevin Ring shares the perspective of people in prison and their families:

 “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,” Ring said.

And FAMM Deputy General Counsel Shanna Rifkin added: 

“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.” 


The BOP can be extremely unreasonable when it comes to early release programs, especially compassionate release. In response, Congress gave federal prisoners the right to petition a federal court for compassionate release under the First Step Act. 

Today, people facing extraordinary or compelling circumstances while incarcerated have a process outside the BOP to seek early release. They should not have to waive the right to avail themselves of that process when negotiating a plea deal.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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