DOJ Prohibits Compassionate Release Waivers in Federal Plea Agreements

March 16, 2022
The enactment of the First Step Act (FSA) in 2018, opened new and available avenues for federal inmates to seek a compassionate release from federal prison. There are many reasons upon which a federal inmate can seek a compassionate release but one of the newly changed reasons is demonstrating “extraordinary and compelling reasons” and the inmate does not have to wait for the Bureau to file it on their behalf. The inmate can file it themselves after a denied request form their warden or not receiving a response after 30 days. However, since the enactment of the FSA, many federal districts have included a provision in their proposed plea agreements requiring defendants to waive their ability to file a request for a compassionate release as a condition to entering into a plea agreement. Once one of these plea agreements passed our desk, we were frankly appalled. It would mean that if an otherwise healthy inmate signed the agreement but developed a terminal illness in the future and while still in prison, they would be barred from even asking the court for a compassionate release. Thankfully, last week, the Department of Justice issued a memorandum prohibiting such a practice and informed all federal prosecutors that they should not seek enforcement of this waiver for any agreement already signed.