Compassionate Release: A Broken System

“Compassionate release is a program through which some eligible, seriously ill prisoners are able to die outside prison before sentence completion. The program functions on 2 premises: It is ethically and legally justifiable to release a subset of prisoners with life-limiting illnesses, and the financial costs to society of continuing to incarcerate such persons outweigh the benefits…Compassionate release is a matter of federal statute under the Sentencing Reform Act of 1984, and now all but 5 states have some mechanism through which dying prisoners seek release…Compassionate release was established under the premise that change in health status may alter justification for incarceration…[and was] designed to address correctional costs…Indeed, the average annual costs for health care, protective transportation, and guards for 21 seriously ill prisoners in California exceed $1.97 million per prisoner.”[i]

According to the Human Rights Watch, “between 2007 and 2010, the number of sentenced state and federal prisoners age 65 or older increased by 63 percent, while the overall population of sentenced prisoners grew only 0.7 percent in the same period.” “Life in prison can challenge anyone, but it can be particularly hard for people whose bodies and minds are being whittled away by age. Prisons in the United States contain an ever growing number of aging men and women who cannot readily climb stairs, haul themselves to the top bunk, or walk long distances to meals or the pill line; whose old bones suffer from thin mattresses and winter’s cold; who need wheelchairs, walkers, canes, portable oxygen, and hearing aids; who cannot get dressed, go to the bathroom, or  bathe  without  help; and who are incontinent, forgetful, suffering chronic illnesses, extremely ill, and dying.”[ii]

CAP worked this past legislative session to fix Hawai`i’s broken medical release (compassionate release) program by advocating for SB 2248. This bill was not a bleeding heart measure. It addressed a humane and practical issue that Hawai`i must face. The bill contained very explicit conditions as to who would be eligible; and eligible individuals would be supervised on parole. Under the bill, no on who poses a risk to public safety would be eligible. The bill made it all the way to conference committee and was killed at the eleventh hour with no explanation.

This week, the Ninth Circuit Blog shared the story of federal prisoner Phillip Smith, calling attention to the underutilization of the compassionate release program by the federal government’s Bureau of Prisons (BOP). Smith contacted the Federal Public Defenders Office for the District of Oregon “because, even though he had been diagnosed with a terminal illness, the Bureau of Prisoners refused to allow his sentencing judge to decide whether to grant a motion to reduce his sentence and let him die at home.” [iii]

Under 18 U.S.C. §3582, also known as The Second Look Statute, the “sentencing judge has the authority to reduce the federal sentence at any time based on ‘extraordinary and compelling reasons’” with consideration of numerous factors, including community safety.[iv] The Sentencing Commission, as assigned by Congress, defined “extraordinary and compelling reasons” to include when “the defendant is suffering from a terminal illness.” U.S.S.G. §1B1.13. The BOP files the second look motion and if the sentencing judge decides that a reduced sentence is just, the prisoner can be released to supervision in the community.

In a video of Smith’s story, Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon, explains that the BOP’s compassionate release program has two “basic flaws”: 1) the BOP “doesn’t follow the law on the wide range of factors that deserve a second look motion”; and 2) the BOP “substitutes itself for the judge, refusing to file a motion unless the agency believes the motion should be granted.”[v] Sady further explains that of the over 200,000 federal prisoners, hundreds die of natural causes each year; and between 2009 to 2011, BOP only filed fifty-five second look motions. “In about 15% of the cases where a motion is requested, the prisoner dies before BOP makes its final decision.”[vi] Smith was told by the institution that he could make a request for compassionate release, but that his first request would be denied – “that’s procedure…the first one is always turned down.” Sady explains that “second look re-sentencing is not only humane for inmates – the family is able to gather, support and grieve.”

Smith’s story illustrates the shortcomings of the federal compassionate release program due to flaws in the implementation of the second look statute by the BOP. Although the second look statute applies only to federal prisoners, states have their own compassionate release laws that similarly contain procedural flaws which create barriers for inmates and lead to underutilization of the programs.

SB 2248 aimed to improve Hawaii’s medical release program. The bill contained provisions in line with recommendations made by a study published in the Annals of Internal Medicine, the Journal of the American College of Physicians. This study, Balancing Punishment and Compassion for Seriously Ill Prisoners, took a comprehensive look at compassionate release programs across the country. It looked at programs’ problematic processes and “medical-related flaws.” The researchers concluded that “at a minimum, the new guidelines should embrace evidenced-based principles and a transparent process that includes assignment of an advocate to help navigate the process and represent incapacitated prisoners, a fast-track option for evaluation of rapidly dying prisoners, and a well-described and well-disseminated application procedure.”

 Hawaii’s Current Compassionate Release Policy

Hawai’i’s Department of Public Safety‘s statistics show that medical release have been granted sparingly in Hawai’i. From 2009 – 2011 (3 years):

  • 37 Compassionate Releases were Recommended
  • 22 Compassionate Releases were Approved
  • 14 Actual Compassionate Releases were Granted

[i] BA Williams, RL Sudore, R Greifinger, and RS Morrison. Balancing Punishment and Compassion for Seriously III Prisoners. Ann Intern Med. 2011;155:122-126.

[ii] OLD BEHIND BARS The Aging Prison Population in the United States, January 2012, http://www.hrw.org/ sites / default/files/reports/ usprisons0112webwcover  O.pdf

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