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".
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 regular
parole
Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
, compassionate release is not based on a prisoner's behaviour or sentencing, but on medical or humanitarian changes in the prisoner's situation.
Request Process
Obtaining a compassionate release for a
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
inmate is a process that varies from country to country (and sometimes even within countries) 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 illness
Terminal illness or end-stage disease is a disease that cannot be cured or adequately treated and is expected to result in the death of the patient. This term is more commonly used for progressive diseases such as cancer, dementia or advanced h ...
es that cause life expectancies of less than six or eighteen months, depending on the
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
.
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. Prisoners with illnesses such as Alzheimer's would be considered eligible for release.
Grounds for compassionate release may also be familial, although not all
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
s offer this option. Under
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
Federal law for example 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 after 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.
Arguments
Debate as to the relative merits of compassionate release is ongoing, and major arguments are presented below.
Proponents
Arguments for the 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
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
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.
The
Bureau of Prisons
The Federal Bureau of Prisons (BOP) is a United States federal law enforcement agency under the Department of Justice that is responsible for the care, custody, and control of incarcerated individuals who have committed federal crimes; that i ...
estimates that the United States would save $5.8 million per year by releasing 100 people on compassionate release per year,
["The Federal Bureau of Prisons’ Compassionate Release Program."]
/ref> and overcrowding would be lessened. Those who are approved for compassionate release have a lower tendency to recommit crime,[O'Meara, Gregory. "Compassion and the Public Interest: Wisconsin's New Compassionate Release Legislation." Federal Sentencing Reporter 23.1 (2010): 33-38. Print.] which is attributed to those being released being in extremely poor health, and 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 has negative attitudes towards the compassionate release of prisoners, based on responses from 163 undergraduate students in an introductory psychology course.[Boothby, Jennifer, and Lorraine Overduin. "Attitudes Regarding the Compassionate Release of Terminally Ill Offenders." The Prison Journal 87.4 (2007): 408-15. Print.] This suggests that negative attitudes toward compassionately released prisoners, and attitudes towards prisoners themselves, could be an obstacle to those seeking an expansion of this type of resentencing and that there is a negative attitude in midwestern university undergraduates 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
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
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 before 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. 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.
Implementation
A major roadblock to the implementation of compassionate release is its reliance on medical trials. Because the criteria for medically based petitions for compassionate release are, by necessity, dependent on medicine and doctors, individual medical professionals have an inordinate amount of power in determining each compassionate release case. 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 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
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
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.
As of 2009, Corrections
In criminal justice, particularly in North America, correction, corrections, and correctional, are umbrella terms describing a variety of functions typically carried out by government agencies, and involving the punishment, treatment, and s ...
systems with compassionate release procedures included the United States Federal Bureau of Prisons
The Federal Bureau of Prisons (BOP) is a United States federal law enforcement agency under the Department of Justice that is responsible for the care, custody, and control of incarcerated individuals who have committed federal crimes; that i ...
(often known as the BOP), Scotland, England and Wales, China, France, New Zealand and 36 of the 50 U.S. state prison systems.
By country
New Zealand
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
legislation includes a provision for prisoners to apply for compassionate release from prison. Section 41 of the Parole Act 2002 provides that the Parole board A parole board is a panel of people who decide whether an offender should be released from prison on parole after serving at least a minimum portion of their sentence as prescribed by the sentencing judge. Parole boards are used in many jurisdiction ...
may, on referral by the chairperson, direct that an offender be released on compassionate release on either of the following grounds: (a) the offender has given birth to a child or (b) the offender is seriously ill and is unlikely to recover. The Department of Corrections is not responsible for decisions regarding compassionate release of prisoners. When a prisoner is seriously ill and unlikely to recover, an application will be made to the New Zealand Parole Board where an independent decision will be made. All prisoners in New Zealand are eligible for compassionate release. The length of a sentence or eligibility for parole are not factors that will affect the prisoner's ability to apply for compassionate release.
In November 2016, a high-profile prisoner, Vicki Ravana Letele was granted compassionate release from prison. Letele was sentenced to three years and two months for ten charges of dishonestly using a document. The application for compassionate release was based on Letele's diagnosis of metastatic cancer. Her illness was terminal with a life expectancy of 6 months. The chairman of the Parole Board, Hon J W Gendall initially declined Letele's release on compassionate grounds, citing that "it is quite often the case that prisoners contract or are diagnosed with serious illness but if they can be adequately treated and managed in prison and death is not imminent that compassionate release is not appropriate. It is not the case that family and others may reasonably believe that the prisoner should be in the care of his/her family at such difficult times."
The serving Prime Minister of New Zealand in 2016, Sir John Key, voiced his opinion on the Letele case following widespread public outcry and protest. Key stated that "I would have thought we were a pretty compassionate country. We do need to take on board the criminal activity that the person’s undertaken but I don’t think we want to see people dying in prison if, on compassionate grounds, it’s reasonable they be returned home." Initial conflicting views between the Ministry of Justice and the Parole Board were resolved on 10 November 2016, when the Parole Board under s41(3) of the Parole Act 2002 ordered the compassionate release of Letele. The decision factored in that there was no offending history, the prison security classification was low and Letele was seriously ill and unlikely to recover.
In the last financial year of 2015/2016, seven prisoners were released on compassionate grounds, all cases determined on the basis that they were seriously ill and unlikely to recover. Figures from the years 2006 – 2013 revealed a total of twenty-five applications, with three of those declined. The application process for compassionate release can be difficult to achieve on time, which is one of the reasons that very few applications are received.[Kerryn Lum "Palliative care behind bars: the New Zealand prison hospice experience" (2004) 17.3-4 Journal of pain and palliative care pharmacotherapy 131 at 135.] Other reasons include the likelihood of a prisoner dying in prison before an application is approved, and an absence of reasonable and available support from family if a prisoner is released from prison. Furthermore, long-stay prisoners may not wish to be released; the prison may be regarded as home and fellow inmates as family.
Human rights approach
In practice, the Parole Board only releases prisoners on compassionate release if they are seriously ill and unlikely to recover. However, the Act also provides for compassionate release of a prisoner when they have given birth to a child. Prison management first assesses the prisoner's suitability, taking into account security classification, the welfare of the prisoner and the child, and the views of the Ministry for Vulnerable Children Oranga Tamariki (formerly Child Youth and Family). A report is then submitted to the Parole Board. However, the establishment of mother and baby units in prisons has made this provision practically void. The reason it has not been removed from the Act is that it would violate New Zealand's International Human Rights obligations and be in contravention of s19 of the Bill of Rights Act; Freedom from Discrimination, if it were not available.[Sandra Goudie "Sentencing and Parole Reform Bill – Initial Briefing" (29 April 2009) at 8/ref> Comparatively, compassionate release is based on underlying principles of human dignity. Dignity in this sense refers to the right of a human being to have inherent equal and inalienable rights to achieve social progress and better standards of living. Preventing the release of seriously ill prisoners would undeniably violate their human dignity.
The 2004 review of Human Rights in New Zealand stated that the vulnerability of people in detention was one of New Zealand's most pressing human rights issues. The United Nations Convention on the Rights of the Child ]United Nations Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Con ...
(UNCROC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the relevant conventions concerning compassionate release. In practice, the Department of Corrections supports a child's contact with parents who are in prison when it is in the best interests of the child. Prisoners are encouraged to have positive relationships with their children so they can better reintegrate on release.[Ministry of Social Development United Nations Convention on the Rights of the Child: Fifth Periodic Report by the Government of New Zealand (2015)] These principles uphold New Zealand's obligations under Article 9 of UNCROC: Separation from Parents, and includes several programs including ‘Mothers with Babies Units’, ‘Mothers and Bonding Facilities’ and importantly, ‘Prison Activities Centres’ that teach fathers parenting skills.
Similarly, under New Zealand's obligations in Article 12 of CEDAW improvements were made in women's correctional facilities to include ‘Mothers with Babies Units’ allowing mothers to keep their children with them in prison up until the age of two, where it was previously 9 months. The aim of this is to achieve a reduction in re-offending for women and increase their children's life chances.[Ministry of Social Development United Nations Convention on the Elimination of all Forms of Discrimination against Women: Eighth Periodic Report by the Government of New Zealand (2016)] Compassionate release must be available to prisoners following the birth of a child to meet the obligations that are specified in these conventions. In practice, the incorporation of units that enable a relationship between a mother and child in prison is consistent with the obligations that New Zealand has in the context of international human rights. This explains the apparent non-existence of compassionate release on the ground that a prisoner has given birth.
United Kingdom
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
and Wales
Wales ( cy, Cymru ) is a country that is part of the United Kingdom. It is bordered by England to the east, the Irish Sea to the north and west, the Celtic Sea to the south west and the Bristol Channel to the south. It had a population in ...
England and Wales allow applications for early release on compassionate grounds for prisoners serving determinate or indeterminate sentences.[HM Prison Service Prison Service Order 6000 Parole, Release and Recall (31 March 2005) at 2/ref> Three general principles are applied during the decision-making process: the safety of the public, new information not available to the court, and whether there was a specific purpose for the early release. The Crime (Sentences) Act 1997 s10 provides that the Secretary of State may at any time release a prisoner if they are satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. Compassionate release will be considered where the prisoner is terminally ill, bedridden or severely incapacitated. Where terminal illness is the case, no specific timescale is strictly followed, however, a life expectancy of three months or less is suggested.]
Prisoners serving determinate sentences are also eligible for compassionate release based on tragic family circumstances. Prisoners serving indeterminate sentences are excluded from this provision and are subject to further restricting criteria in an application for compassionate release based on terminal illness. They will be assessed on the risk of re-offending, particularly of a sexual or violent nature, whether further imprisonment would reduce their life expectancy, whether adequate arrangements are available outside prison, and whether early release will provide some significant benefit to their family. Where conditions are self-induced, such as a hunger strike or refusal of treatment, an application may be declined.
The aging prison population
The rates of death from natural causes have doubled in eight years, with 199 deaths occurring in prison in 2016. The age of the prison population is rising because of a shift in major sentencing trends; prison terms are increasingly longer for the older population. The Prison Reform Trust called for a review of the current compassionate release process, commenting on the difficulty that a medical professional will have diagnosing a three-month life expectancy. The Trust recommended that a one-year life expectancy be sufficient for an application for compassionate release from prison. The former Deputy Director of the Trust observed that older prisoners who are terminally ill are unlikely to pose a risk to the public. He believed that a range of options should be considered, including compassionate release to ensure that people spend their last days with dignity.[Tamsin Snow "Should dying prisoners be given their freedom for a more dignified end?"(2009) 23 Health and Medical Collection 12 at 13]
High-profile cases such as the release of Reggie Kray
Ronald Kray (24 October 193317 March 1995) and Reginald Kray (24 October 19331 October 2000) were identical twin brothers, gangsters and convicted criminals. They were the foremost perpetrators of organised crime in the East End of London, Engl ...
in 2000 and Ronnie Briggs in 2009 raised issues regarding the term ‘compassionate release’. The idea that compassion should be exercised with prisoners was a concept that did not reconcile with popular societal views. Costs associated with medical care for the elderly and terminally ill was noted, with acceptance of the costs that are incurred by sending prison guards to hospital and providing palliative care within the prison environment. However, early release is largely deemed to be socially incompatible.
Human rights of older persons
Compassionate release is founded on a humanitarian concern for the dying, and practical reasons such as high costs or the inability to care adequately for such persons in prison.[Wiebke Bretschneider et al "The collision of care and punishment: Ageing prisoners’ view on compassionate release" (2017) 19 Punishment and Society 5 at 11] Prison is generally deemed unsuitable for compassionate end-of-life care due to its punitive purpose. End-of-life care exists in prisons in England and Wales, however, the adequacy of the care has been challenged, as the opposing goals of security and compassionate care are said to be mutually exclusive. In May 2016, the Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a po ...
European Committee on Crime Problems issued a white paper on prison overcrowding. The paper addressed the root causes of prison overcrowding and supports the wide application for early release for seriously ill and aged prisoners on compassionate grounds.
A 2011 report to the UN Secretary-General
The secretary-general of the United Nations (UNSG or SG) is the chief administrative officer of the United Nations and head of the United Nations Secretariat, one of the six principal organs of the United Nations.
The role of the secretary- ...
highlighted the difficulties with the aging population, particularly regarding the long-term care of the elderly. This is made worse by the lack of legal framework to monitor human rights violations in long-term care facilities. Dying and suffering are not part of a prisoner's punishment. Human rights recommendations for aging prisoners An aging offender or an elderly offender is an individual over the age of 55 who breaks the law or is in prison. The numbers of elderly individuals breaking the law and being placed in prison is increasing, and presents a number of problems for corr ...
advocate that necessary changes should be made to adapt to the older prisoner's physical and mental health. If changes cannot be adequately implemented, then compassionate release of the prisoner should be considered in order not to violate Article 3 on inhumane and degrading treatment of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
.
;Scotland
Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
The Scottish legal system permits compassionate release for terminal illnesses. There are only a few applications per year, and most are granted. A prominent case was that of Abdelbaset al-Megrahi
Abdelbaset Ali Mohmed al-Megrahi ( ar, عبد الباسط محمد علي المقرحي, ; 1 April 1952 – 20 May 2012) was a Libyan who was head of security for Libyan Arab Airlines, director of the Centre for Strategic Studies in Tripoli, Li ...
, released on 20 August 2009 because of prostate cancer.
United States
In the United States, forms of compassionate release are found both federally and in the laws of thirty-nine states. With the rapid increase in prison populations following the introduction of mandatory minimum sentencing laws 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 the suffering of inmates and their families. Some states have recently expanded their 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
Terminal illness or end-stage disease is a disease that cannot be cured or adequately treated and is expected to result in the death of the patient. This term is more commonly used for progressive diseases such as cancer, dementia or advanced h ...
and who have applications pending die in prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, corre ...
before their cases are processed due to case backlogs and narrow interpretation of the law. The issue of where and how to best deliver end-of-life care has been compounded by the sheer number of prisoners now incarcerated in the United States, as well as by the aging of the prison population.
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 offences occurred since it was enacted, and 18 U.S.C. 4205(g), the previous version, which still controls the release of inmates who were convicted of offences that occurred on or before that date. States that offer compassionate release each have their 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.
To seek compassionate release, federal inmates must file a petition with the warden. Compassionate release is only granted "when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing."
U.S. cases
In 2013, the terminally ill Herman Wallace was released from Angola Prison
The Louisiana State Penitentiary (known as Angola, and nicknamed the "Alcatraz of the South", "The Angola Plantation" and "The Farm"Sutton, Keith "Catfish".Out There: Angola angling. ''ESPN Outdoors''. May 31, 2006. Retrieved on August 25, 2010. ...
to spend the rest of his life in a personal care home. He died a few days later.
Lynne Stewart
Lynne Irene Stewart (October 8, 1939 – March 7, 2017) was an American defense attorney who was known for representing controversial, famous defendants. She herself was convicted on charges of conspiracy and providing material support to terro ...
, a criminal defence attorney was convicted of passing messages from imprisoned terrorist Omar Abdel-Rahman
Sheikh Omar Abdel-Rahman ( ar, عمر عبد الرحمن), (ʾUmar ʾAbd ar-Raḥmān; 3 May 1938 – 18 February 2017), commonly known in the United States as "The Blind Sheikh", was a blind Egyptian Islamist militant who served a life sent ...
(the "Blind Sheikh") to his followers in al-Jama'a al-Islamiyya
( ar, الجماعة الإسلامية, "the Islamic Group"; also transliterated El Gama'a El Islamiyya; also called "Islamic Groups" and transliterated Gamaat Islamiya, al Jamaat al Islamiya, is an Egyptian Sunni Islamist movement, and ...
. Judge John Koeltl
John George Koeltl (; born October 25, 1945) is a United States district judge of the United States District Court for the Southern District of New York in Manhattan.
Education
Koeltl was born in New York City. He graduated from Regis High Scho ...
sentenced Stewart to ten years in prison, but on December 31, 2013, Koeltl ordered Stewart released from federal prison due to her terminal breast cancer. Koeltl cited the incurable nature of Stewart's disease and the "relatively limited risk" of recidivism and danger to the community upon release. She was 74 years old at the time of her release from the Federal Medical Center Carswell in Texas where she had been held and had served just over four years of her sentence. Stewart died in March 2017.[Joseph P. Fried]
Lynne Stewart, Lawyer Imprisoned in Terrorism Case, Dies at 77
The ''New York Times'' (March 7, 2017).
Variation among states
Different states have various policies on the compassionate release system, varying on details such as the life expectancy required to warrant compassionate release.
References
External links
HRC Rights of People who are Detained
Human Rights and Prisons
Prison Reform Trust Older People in Prison
{{DEFAULTSORT:Compassionate Release
Prisons
Penal imprisonment
Penal system in the United States
Parole