![handle is hein.journals/gljon113 and id is 1 raw text is:
Compassionless Plea Bargaining
JIJUAN A. COOK, III*
Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure
the validity of a defendant's change of plea decision. Rather than engage in colloquies that are
sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical
details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.
While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions,
comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.
Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that
threatened to engulf the Biden Administration's Department ofJustice into an unfortunate and arguably
embarrassing controversy.
In December 2018, President Donald Trump signed into law the First Step Act. Designed primarily to
address the nation's mass incarceration crisis, one ofits more overlooked features was a provision that
addressed sentencing modification. Commonly referred to as compassionate release, the Act sought to
ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary
life circumstance. During the COVID-19 pandemic, as the virus spread rapidly through correctional
facilities, compassionate release requests predictably skyrocketed and so did the workload offederal
prosecutors tasked to respond to these motions. As a result, many U.S. Attorney's Offices included
provisions in plea agreements requiring defendants to forgo their compassionate release rights under the
Act in exchange for the concessions offered by the government. A brewing controversy ensued, with
critics, including the National Association of Criminal Defense Lawyers, arguing that the government
was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in
the absence of a full awareness of the attendant consequences. In response, Attorney General Merrick
Garland discontinued the practice in March 2022. However, the reprieve is likely to be short-lived, as
future attorneys general will almost certainly resuscitate the practice.
The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the
compassionate release context, can even be fatal. This Article explains why federal change of plea
hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's
guilty plea and offers a proposalfor reform.
INTRODUCTION
The point is this: While the plea agreement leaves open a path to compassionate release, it is hardly
wider than the eye of a needle. . . . [I]t is inhumane. . . . [I]ts effects are appallingly cruel. . . . The waiver
of compassionate release is senseless.
Senior Judge Charles R. Breyer, Northern District of Californial
* Samuel T. Dell Professor of Law, University of Florida Levin College of Law. I would like to thank Merritt
McAlister, Dean of the University of Florida Levin College of Law, and Laura Rosenbury, former Dean of the
University of Florida Levin College of Law, for their financial support. I would also like to thank many faculty
members at the University of Florida Levin College of Law, including, but not limited to, Professors E. Lea
Johnston, Elizabeth Lear, Charlene Luke, Tracey Maclin, John Stinneford, Amy Stein, and Michael Wolf, for their
valuable insights and recommendations. In addition, I would like to extend my thanks to Professors Russell Covey,
Nirej Sekhon, Lauren Sudeall, and Tanya Washington for their many helpful insights. Finally, I want to thank my
outstanding research assistants, Molly Laughlin and Richmond Wrinkle, for their tireless efforts and invaluable
contributions to this project. This Article is dedicated to my late father, Julian A. Cook, Jr., a former United States
District Judge for the Eastern District of Michigan and a proud alumnus of the Georgetown University Law Center
('57). On numerous occasions we discussed the federal guilty plea hearing process and bandied about ideas](ViewImageLocal?handle=hein.journals/gljon113&div=1&collection=&method=preview&ext=.png&size=3)
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