Compassionate release

Compassionate release is a process by which inmates in criminal justice systems may be eligible for immediate early release on grounds of “particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing”.^[1] Compassionate release procedures, which are also known as medical release, medical parole, medical furlough and humanitarian parole, can be mandated by the courts or by internal corrections authorities. Unlike parole, compassionate release is not based on a prisoner's behavior or sentencing, but on medical or humanitarian changes in the prisoner's situation, and is found in the US both federally and in the laws of thirty-nine states. With the skyrocketing of prison populations following the mandatory minimum sentencing laws introduced in the 1990s many people have called for the expanded use of compassionate release as a "safety valve" to relieve overcrowded prison systems and reduce pressure on government budgets as well as to ease suffering of inmates and their families.^[2][3][4][5] Some states have recently expanded their own forms of compassionate release, as can be seen in New York’s changes to its medical parole laws to include both the terminally ill and chronically ill inmates in the absence of a prognosis of imminent death, although this has not necessarily resulted in more releases.

Many who are eligible for compassionate release on grounds of terminal illness and who have applications pending die in prison before their cases are processed due to case backlogs and narrow interpretation of the law.^[6] The issue of where and how to best deliver end of life care has been compounded by the sheer numbers now incarcerated in the United States, as well as by the aging of the prison population. ^{[3][5][6][7][8]}

Request process

Obtaining a compassionate release for a prison inmate is a process that varies from state to state but generally involves petitioning the warden or court to the effect that the subject is terminally ill and would benefit from obtaining aid outside of the prison system, or is otherwise eligible under the relevant law.

Compassionate release is most often granted to inmates with terminal illnesses that cause life expectancies of time periods less than between six and eighteen months, depending on the jurisdiction.^[9][7][10] Other allowable causes for compassionate release may be medical but non-terminal, such as incurable debilitating mental or physical conditions that prevent inmate self-care or a combination of advanced age and irreversible age-related conditions that prevent functioning in a prison setting.

Grounds for compassionate release may also be familial, although not all jurisdictions offer this option. Under Federal law inmates may be released to care for a minor child or debilitated spouse in the absence of other family caregivers. This is intended to be subsequent to the death or debilitation of the child’s primary caregiver in the former case or the finding of permanent mental or physical disability of the spouse in the latter. While there are clear advantages to the individual in this type of release, there are many procedural obstacles to this type of petition which lead to it rarely being granted.

Federal laws governing compassionate release include 18 U.S.C. 3582(c)1(A), which came into effect on 1 November 1987 and governs those whose offenses occurred since it was enacted, and 18 U.S.C. 4205(g), the previous version, which still controls release of inmates who were convicted of offenses that occurred on or prior to that date.^[9] States that offer compassionate release each have their own laws governing eligibility, and it may differ from the federal versions both in the requirements for eligibility and in the type of release that can be granted, for example medical parole rather than resentencing.

Arguments

Debate as to the relative merits of compassionate release is ongoing, and major arguments are presented below.

Proponents

Arguments for expansion of compassionate release programs generally address the benefit to terminally ill prisoners as well as cost savings to the state. Terminal illness which requires special care or treatment is a major concern for prison inmates who may be unable to access the same type or quality of care in prison as they would outside of an institutional setting. These illnesses can further shorten the lifespan of the individual while he or she is in prison, a setting that already has poorer health outcomes and a lower life expectancy than the general population.^[11] The Bureau of Prisons estimates that the United States would save $5.8 million per year by releasing 100 people on compassionate release per year,^[12][13] and overcrowding would be lessened. Those who are approved for compassionate release have a lower tendency to recommit crime,^[8] which is attributed to those being released being in extremely poor health, as well as possibly due to the careful screening process inmates go through for risk of recidivism before approval for compassionate release can be granted.

Opponents

Compassionate release relies on good faith, requiring that the released inmates do not continue committing crimes after they have been released; while many of these criminals are in very poor health, some are not incapacitated, and their reintroduction into society puts them back into a setting where they would be free to commit crimes. A questionnaire study by Jennifer Boothby and Lorraine Overduin on attitudes towards compassionate release suggested that the general public have negative attitudes towards the compassionate release of prisoners.^[14] This suggests that the community’s negative attitudes toward compassionately released prisoners could be an obstacle to those seeking an expansion of this type of resentencing, and that there is a negative attitude in communities over mingling with those convicted of crimes meriting time potentially up to life sentences. Another argument against compassionate release is fairness and concern over justice for time served; for those that were placed in prison justifiably, the question arises of how long they should be forced to serve for their crimes before they are allowed renewed access to their community for health and support, and state and federal laws generally stipulate guidelines that address minimum proportions of sentences that must be served prior to eligibility for compassionate release.

The process of obtaining compassionate release on medical grounds has been criticized in multiple states for being highly subjective on a case-by-case basis, relying heavily on specific doctors' opinions and for not having sufficiently clear-cut guidelines as to what defines a patient as being eligible for compassionate release.^[6] This often results in calls for reform, fueled by statistics regarding the rate of compassionate release and the illnesses of the patients who do not receive it.^[15]

Implementation

How to most equitably and safely implement compassionate release is a topic of great importance for inmates in the United States and for those concerned about the ballooning of government spending and overcrowding in the penal system. Deciding how to implement compassionate release law requires looking at both sides of the picture—the applicant for release, and their community. The current compassionate release system lacks consistency among the states, which vary significantly over details such as the life expectancy that warrants compassionate release (a detail that can vary from between 6 to 12 months and take 65 days to determine in court).^[12] Such discrepancies create major variations in the decisions that govern individual cases and make it difficult to create an overarching compassionate release legislation in any state or country, undermining the principle of equal status under the law.

Another major roadblock to the implementation of compassionate release is its reliance on medical trial. Because the criteria for medically based petitions for compassionate release is, by necessity, dependent on medicine and doctors, individual medical professionals have an inordinate amount of power in determining each compassionate release case.^[16] Because of the high degree of variation among individual medical professionals, the high variation that is translated into each decision is a major issue in many of the current compassionate release systems. The inconsistency of current systems of compassionate release is a common flaw that hinders increased use of compassionate release.

Other options

For prisoners suffering from terminal illnesses, alternative options include programs that distribute health materials and segregation of affected individuals ^[17] and expanded hospice programs. Hospice programs within the prisons have been used, although this does not address the humanitarian aspect of allowing inmates to die with dignity among family and friends, and the issue of cost to the state still looms large. Specialized medical care in a prison setting is difficult to achieve and is a costly proposition. With the prison population aging and in poorer health than the general population, as previously mentioned, cost may become a prohibitive factor, increasing the attraction of compassionate release where possible.

For non-medical cases such as care for a family member in the absence of other available parties, practical alternatives are difficult to identify. A minor child or disabled spouse for whom no other caregiver is available is likely to end up as a ward of the courts or in institutional care if the compassionate release request is not granted.

In 2009, Corrections systems with compassionate release procedures include the United States Federal Bureau of Prisons (often known as the BOP),^[18] Scotland, England and Wales, China,^[19] France, New Zealand and 36 of the 50 U.S. state prison systems.^[20]

Compassionate release by country

New Zealand

The New Zealand legal system allows compassionate release for terminal illness or pregnancy, but there are only a small number of applications each year.^[21]

United Kingdom

England and Wales

On August 6, 2009, it was announced that Ronnie Biggs, the last surviving member of the group of men responsible for perpetrating Britain's Great Train Robbery (1963) had been released on compassionate grounds.^[22]

Scotland

The Scottish legal system permits compassionate release for terminal illness. There are only a few applications per year, and most are granted. A prominent case was that of Abdelbaset al-Megrahi, released on 20 August 2009 because of prostate cancer.^[23]

United States

In the Federal Bureau of Prisons, inmates file a petition for Compassionate release with the warden. As previously mentioned, the inmate may only initiate a request "when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing."^[24]

In 2013, the terminally ill Herman Wallace was released from Angola Prison to spend the rest of his life in a personal care home. He died a few days later.

Also in 2013, Lynne Stewart was released with terminal cancer and other health problems. On December 31, 2013 Stewart was ordered released from federal prison by Judge John Koeltl on the grounds that her advanced cancer allowed her less than eighteen months to live. The courts ruled that “her medical condition was "terminal and incurable" and cited the "relatively limited risk" of recidivism and danger to the community from her release”.^[25] Stewart, a defense attorney known for defending poor and unpopular clients, had been convicted and sentenced to ten years in prison for passing messages from a client to his supporters in violation of legal agreements governing his trial. She was 74 years old at the time of her release from the Federal Medical Center Carswell in Texas where she had been held,^[26] and had served just over four years of her sentence. Her supporters included human rights activists including Archbishop Desmond Tutu,^[27] although due to the nature of her conviction for aiding an accused terrorist there was also a measure of controversy, and the vocal criticism of opponents such as conservative blogger Michelle Malkin^[27] also raised the profile of her case. Arguably, as a non-violent elderly woman with multiple health problems including advanced cancer, Stewart poses little or no risk to the community when released into the care of her family.

References