U.S. District Judge Charles Breyer of the Northern District of California (Photo: Jason Doiy/ALM)

A federal judge in San Francisco has called out the local federal prosecutor's office for asking a criminal defendant to narrow the conditions in which he can ask for compassionate release from prison as part of plea agreement.

U.S. District Judge Charles Breyer, in an order issued Monday, called the move, which would push back by at least five months the length of time before the defendant could move for compassionate release, "inhumane," "appallingly cruel," and "senseless."

"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," Breyer wrote.

Breyer's decision comes after the First Step Act of 2019, a criminal justice bill with broad bipartisan support that expanded prisoners' avenues for compassionate release from the federal system, was signed into law by President Donald Trump last year. The law amended 18 U.S.C. §3582(c)(1)(A) to allow those seeking compassionate release to petition courts directly 30 days after the warden of the defendant's facility failed to act on such a request.

But in the case of Allan Josue Funez Osorto, a man facing federal drug charges, prosecutors from the U.S. Attorney's Office for the Northern District of California, excluded the 30-day language from the plea agreement. 

"I agree not to move the Court to modify my sentence under 3582(c)(1)(A) until I have fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring such a motion on my behalf, unless the BOP has not finally resolved my appeal within 180 days of my request despite my seeking review within ten days of each decision," Funez Osorto's agreement said.

That language, Breyer wrote, would seem to require Funez Osorto to complete at least one appeal plus a year and a half of inaction by the Bureau of Prisons, rather than 30 days. The judge wrote that such a wait could be "devastating" to a person with a terminal illness or with children left uncared for. Those are circumstances which the U.S. Sentencing Commission, a policy body where Breyer has served as vice chairman and a member, has found to be "extraordinary and compelling reasons" and warranted compassionate release.  

"Current circumstances put the point in excruciatingly sharp relief," wrote Breyer of the COVID-19 pandemic. "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," wrote the judge, noting that he had granted three such requests. 

Breyer, pointing out that plea agreements are often drafted by prosecutor's offices with a take-it-or-leave-it policy, said that he would not approve a plea bargain signing away the defendant's ability to come to court asking for compassionate release earlier, if necessary. 

"Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?" the judge wrote

David Anderson, U.S. attorney for the Northern District of California, said in a phone interview Monday that the office had "at virtually the same time" as Funez Osorto's plea hearing last week adjusted language in its standard plea agreement to reflect the 30-day exhaustion requirement after being approached by local defense attorneys about the issue. 

"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." 

Adam Gasner, Funez Osorto's defense attorney in San Francisco, said in an email that his client is set for sentencing in a few weeks, and he is working to exclude the waiver. 

"It is a classic clash of viewpoints between the Judicial and Executive branch of our government," Gasner said. "I see Judge Breyer expressing extreme disapproval of limiting any rights of a defendant in what is now a life-and-death situation. The evidence is clear that our prisons are being infected quickly with COVID-19 and all efforts need to be made to allow prisoners to bring a motion to be released without administrative delay and red tape."