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Families Against Mandatory Minimums: Everywhere and Nowhere -- Compassionate Release in the States, 2018

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Everywhere
and Nowhere
Compassionate Release in the States
By Mary Price

June 2018
1

About the Author

Mary Price is general counsel of Families Against Mandatory Minimums
(FAMM). She directs the FAMM Litigation Project and advocates for reform
of federal sentencing and corrections law and policy before Congress, the U.S.
Sentencing Commission, the Bureau of Prisons, and the Department of Justice.
She is a special advisor to the American Bar Association Criminal Justice Section
(ABA CJS) Council, co-chairs the ABA CJS Sentencing Committee, served on
the ABA’s Task Force on the Reform of Federal Sentencing for Economic Crimes,
and was a founder of Clemency Project 2014, serving on its Steering, Screening,
and Resource Committees. Previously, she was a member of the Practitioners’
Advisory Group to the U.S. Sentencing Commission.

Dedication

We dedicate this report to the many people who have shared with us their
struggles to help imprisoned loved ones secure compassionate release. Their
perseverance and courage in the face of barriers, misinformation, indifference,
and even hostility inspired us to write this report.

2

Acknowledgements
This report would not have been possible without the talented and creative
contributions of Julie Clark. She brought her engaging writing style and great
ideas for organization to editing it. She also researched and wrote the 51 memos
(50 states plus the District of Columbia) on which it is based. Her dedication to
uncovering every single compassionate release statute and rule, as well as her skill
in breaking down very complex information into clear and easy to understand
parts, have ensured that this work will be a resource to those who need it most.
The scholarship and advocacy of Dr. Brie Williams, professor of medicine at the
University of California San Francisco, have elevated the issue of compassionate
release in the medical community and beyond. Miriam Krinsky, founder and
executive director of Fair and Just Prosecution, works with prosecutors to
promote a justice system grounded in fairness, equity, compassion, and fiscal
responsibility. We are grateful to both for their close read and thoughtful
suggestions. We also thank the law firm of Crowell & Moring, which provided
research assistance.
FAMM President Kevin Ring, Director of Communications Rabiah Burks, and
communications staff members Enrique Huaiquil, Donna Cuipylo, Ann Espuelas,
Sonora Bostian-Posner, and Lani Prunés were generous with ideas, edits, and
support.
The report was designed by Sheldon Sneed Designs.

3

Contents

5 6

INTRODUCTION

THIS REPORT

State compassionate
release programs make
sense for many reasons.
Yet how this area of our
justice system works—or
doesn’t—is unclear. This
report aims to finally
make sense of it all.

7

FAMM’S VALUES

We hear from prisoners and
families about the trauma, pain,
and frustration they endure
going through the compassionate
release process. Our abiding
commitment to providing them
accurate and timely information
is among the FAMM values that
inform this report.

8

THE NEED FOR COMPASSIOANTE
RELEASE

Aging, sick, and dying prisoners
present unique challenges to prison
systems poorly equipped to meet
them. As prisoners age or experience
declining health, their threat to
public safety lessens, as do some of
the justifications for continuing to
hold them behind bars.

12 13

WHAT WE DID, WHAT WE FOUND

We present the questions that
directed our state-by-state
research, including how states
choose who qualifies, who
decides, and what happens next,
as well as an overview of our
findings.

16

BEST COMPASSIONATE
RELEASE PRACTICES

4

We discuss the best features
of compassionate release
programs, including family
notification and involvement,
clear rules, and sensible time
frames.

BARRIERS TO
COMPASSIONATE RELEASE

We found many obstacles
to compassionate release,
including confusing rules and
unrealistic time frames. We
present examples of the most
widespread barriers.

20 27

CONCLUSION &
RECOMMENDATIONS

Our analysis yielded ways to
improve the process that could
have far-reaching benefits.

STATE BY STATE

A handy chart to help
families, prisoners,
lawmakers, and advocates
easily interpret the basics
of compassionate release
programs in each state.

Everywhere and Nowhere: Compassionate Release in the States

Introduction

W

hen prison officials finally allowed Lynn Atkinson
to visit her brother after she hadn’t seen him for
quite a while, she was horrified. He was dying
of cancer and had shrunk to about 90 pounds.
“He was handcuffed to the bed and his legs were
shackled,” Lynn says. “I’ll never forget it walking in there. I was just like, ‘Oh my god, this is a
horror show.’ Where do they think he’s going? He
can’t even walk.”
Bernard “Bernie” Mulka was serving a sentence
of 16 years in a Connecticut state prison for two
bank robberies. He was 11 years into his sentence
when he learned of his terminal diagnosis. Lynn
heard from his nursing staff that he could be
eligible for release, and she wanted to bring him
home to die.
She wasn’t aware of any official process, so she just
started writing and calling, trying to get someone’s attention. “I was writing letters to the governor, letter after letter. I can’t tell you the letters I
wrote, and nobody ever responded,” Lynn says.
Luckily, one of her co-workers talked to her
brother, a lawyer at Robinson & Cole. The firm
took up Bernie’s cause. In December of 2013, Bernie’s lawyers made a formal request for his release.
Lynn did what she could to help, while also trying
to keep track of her brother’s health. “I would call
the prison to check on him, because by now he
was really, really sick, unable to walk, and they’d

be like, ‘You know what? We’re busy.’ Click. They
would hang up on me.” After he was transferred
to the prison hospital, she was not allowed to visit
him. In January 2014, the Connecticut Board of
Pardons and Paroles officially denied Bernie’s
request for release.
The lawyers continued to try every avenue of possible legal relief. Eventually they obtained a court
hearing. Everyone in the courtroom, including
Lynn, fell silent as Bernie was rolled in. He could
barely sit up in his wheelchair and could not even
stay alert throughout the proceeding. The following day, Lynn was finally allowed to visit Bernie,
and, a few days later, his attorneys called Lynn to
tell her that Bernie would be released. Soon after,
he died at his father’s house, Lynn by his side. To
this day, she is not sure by what process he was
released.
Lynn is grateful that her brother made it home to
die, but she hasn’t been able to shake her anger
about the process. “I am a pretty strong person,
but this really almost broke me. People shouldn’t
have to go through this. It can really affect you
when your family is dying in prison and there’s
nothing you can do. I think that’s the worst feeling
I’ve ever had, worse than anything else. He’s going
to die, he’ll be dead in a few months anyway, so
why can’t he just come home? It’s not just inhumane for the person who’s in jail and experiencing
it—but even more for the family. That’s not right.”

5

Everywhere and Nowhere: Compassionate Release in the States

We believe that
shedding light on state
compassionate release
policies and programs
is the first step to
improving them.

Why Compassionate Release?
Compassionate release allows prisoners facing imminent death, advancing age, or debilitating medical conditions to secure early release when those
developments diminish the need for or morality of
continued imprisonment. At FAMM, we routinely
hear from prisoners and their loved ones seeking
information about how to secure compassionate
release. We have listened to heart-wrenching stories of families like Lynn and Bernie’s trying to help
sick and dying prisoners navigate an absurdly complicated and confusing process for release. They
do not understand how to ask for compassionate
release or interpret eligibility criteria. They encounter walls of silence and endure lengthy delays. Most
are turned down.
FAMM has worked for many years to bring attention and reform to this area of our justice system.
With Human Rights Watch, we co-authored “The
Answer Is No,” a comprehensive report in 2012
on the failings of the federal compassionate release system.1 The following year, the U.S. Justice
Department’s independent watchdog released a
sharply critical report of the program.2 These accounts and advocacy by FAMM and others led the
Bureau of Prisons and the U.S. Sentencing Commission to promote reforms to the federal system.3
Bills pending in Congress as of June 2018 would
make further improvements to federal compassionate release policies. 4

This report

6

Now we want to bring attention and spur improvements to state compassionate release programs.
Our review found that many are so complicated

and confusing that trying to navigate them can be
overwhelming for the very people they ought to
help. We often found ourselves struggling to make
sense of incomplete, inconsistent, and at times
even incoherent guidelines and rules. We can only
imagine what it must be like for men and women
in prison who are dying or living with serious
medical conditions, or for their families trying to
help from the outside.
We believe that shedding light on state compassionate release policies and programs is the first
step to improving them.
This report and the 51 state memos accompanying it are our contribution to the people for whom
compassionate release is designed. We set out to
unpack and describe every state’s publicly available
compassionate release rules so that prisoners and
their supporters will have one place to visit where
they can learn about eligibility criteria, application
procedures, needed documentation, and decisionmaking steps. We hope that providing this material
will empower people with accurate information
and improve their chances of success.
We also hope that the light our work casts will help
improve compassionate release programs. This report details a number of barriers to compassionate
release. It also includes a section on best practices.
We want this information to encourage policy
advocates and state lawmakers to take a close look
at compassionate release rules and improve their
design, guidance, and ease of use. To that end, we
close the report with a comprehensive set of recommendations.

Everywhere and Nowhere: Compassionate Release in the States

FAMM’s values
FAMM brings a set of beliefs to our review.

	 • Compassionate release rules should be easy to
	understand.
	
	

• Eligibility criteria should be informed
by evidence.

	
	
	

• Every prisoner should be evaluated in a timely
and fair manner and released when he or
she meets the criteria.

	
	
	
	

• Every prisoner should be considered on his
or her merits and not automatically excluded
based on the crime committed or the amount
of time left to serve.

	
	
	

• Help should be available to prisoners
and their loved ones, if needed, to apply
for compassionate release.

	
	
	
	

• Prisoners should be kept advised as the
request is considered and assisted in preparing
to leave prison with comprehensive
release planning.

	
	
	
	
	
	

• Finally, compassionate release in every state
should be transparent to the fullest extent
possible. This means well-designed reporting
requirements that ensure that lawmakers and
the public know whether these programs
are used as intended.

Another note of introduction: While the term
“compassionate release” is used often in the
literature about programs allowing early release or
parole for prisoners who are, for example, seriously
ill or elderly, readers of this report will find that
very few states name the programs “compassionate
release.” But we do.

FAMM was first introduced to compassionate
release by prisoners and their families struggling to
use it. They would write or call our office desperate
for information. While researching and writing this
report, we were struck time and again at the sheer
complexity and bureaucratic barriers in most state
programs. Some programs are carefully crafted to
provide for a comprehensive review and a correct
outcome. Others are written like an afterthought.
But only a handful require that officials tell
prisoners that compassionate release exists, much
less how to apply for it. Just a few programs
require that prisoners waiting for decisions be
kept updated about where things stand. Most
include procedures that result in lengthy delays
while officials evaluate whether the prisoner meets
unclear or confusing eligibility criteria or deserves
to be released.
“Compassion” is defined as the sympathetic
consciousness of others’ distress together with a
desire to alleviate it. Every program we studied
would benefit from taking a compassion-based
look at what it means for a prisoner and his or her
loved ones to go through the process in light of
the barriers and complexity we found. Doing so
could help ensure that programs are attentive to
the needs and challenges faced by the individuals
seeking to use them and that the application
process itself does not inflict unnecessary distress
or suffering.
We call these programs “compassionate release”
so that the human experience is foremost in our
minds and those of our readers.

7

Everywhere and Nowhere: Compassionate Release in the States

By 2030, prisons will
house over 400,000
prisoners who will be
55 and older, making
up nearly one-third
of the population.

States have compassionate release
programs but rarely use them.
FAMM has long believed that compassionate release
is necessary when a prisoner’s condition changes so
much that continued incarceration can no longer be
justified in light of the purposes of punishment or the
principles of human dignity. Compassionate release
is called for when prisoners become terminally ill,
elderly, or very sick or incapacitated and unable to care
for themselves.
A broad and diverse group of organizations and individuals support compassionate release. They span the
ideological spectrum and work in the areas of criminal
justice, health care, human rights, law, and religion.5
The U.S. Congress adopted the federal compassionate
release program in 1984 to give judges the authority to
reduce a sentence for prisoners who develop “extraordinary and compelling circumstances,” such as the
onset of terminal illness.6

8

States also provide for early release. We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure early

release when circumstances such as imminent death
or significant illness lessen the need for, or morality of, their imprisonment. But we were dismayed to
discover that despite the widespread existence of these
programs, very few prisoners receive compassionate
release. This is tragic, because the case for expanded
compassionate release is so strong.

The need for compassionate release

A number of well-documented reasons support a
robust use of early release. Among them is the cost of
housing, accommodating, and providing medical care
for aging prisoners, prisoners who are ill or suffering
from a significant and limiting disability, and prisoners
nearing the end of their lives. These prisoners present
unique challenges to prison systems poorly equipped
to meet them. As prisoners age or experience declining
health, their threat to public safety lessens, as do some
of the justifications for continuing to hold them behind
bars.

Everywhere and Nowhere: Compassionate Release in the States

Continued from previous page

Graying of prisons

Mandatory prison sentences and truthin-sentencing laws mean that more
people are serving prison terms, and
that those terms are longer and cannot easily be shortened.7 State prison
populations increased 55 percent
between 1993 and 2013.8 The proportion of prisoners 55 years old and
older increased 400 percent in that
same period.9 These older prisoners
made up 11.3 percent of the state and
federal prison population at the end
of 2016,10 an increase of more than 8
percent from 2003.11 While state prison
populations are finally falling, the same
cannot be said for their elderly populations.12 By 2030 prisons will house
more than 400,000 individuals who
will be 55 and older, making up nearly
one-third of the population.13

Cost of care

Elderly prisoners and those with
complicated or age-related medical
conditions are expensive to care for

and house. Estimates are that older
prisoners cost between three to nine
times more per prisoner to incarcerate
than younger ones.14 From 1976 (when
the Supreme Court ruled that prisoners must have access to an appropriate
level of medical care) to 2013, prison
spending increased 10 times, with
medical-care spending making up fully
10 percent of the $77 billion price tag
that year.15 Experts relate that the rising
cost of state prison health care is due
largely to the growing population of
older prisoners with disabilities and
chronic medical conditions.16 Medical
care alone consumed one fifth of state
prison expenditures in 2015, and treating chronic conditions is a growing
concern in light of the graying of state
prison populations.17
Prisons face many challenges when
trying to meet the special needs of
older prisoners and those who are ill or
have severe disabilities. This community requires targeted supports, such as
Continued on next page

MEDICAL PRISON CARE
SPENDING INCREASED

10X

FROM 1976 TO 2013

9

Everywhere and Nowhere: Compassionate Release in the States

Continued from previous page

Older offenders
who do
recidivate do
so later in
the follow-up
period, do so
less frequently,
and had
less serious
recidivism
offenses
on average.”

10

ramps, lower bunks, and grab bars.18
Many prisons are quite old, with aging
and poorly designed buildings causing
health and safety problems for prisoners.19 Some prisons aim to provide
programming for older prisoners and
assistance with self-care such as bathing, dressing, eating, and walking.20 In
some jurisdictions, fellow prisoners
help those facing barriers getting to pill
lines, medical appointments, meals,
and even in and out of beds and wheelchairs.21
Prisoners nearing death present additional challenges, ranging from managing prisoners’ pain to ensuring their
final days are spent in relative physical,
spiritual, and emotional peace. Some
systems use prisoners as hospice aides
for fellow prisoners facing the end
of life. 22 Families also suffer when a
loved one in prison is suffering. In our
experience, prisons do a poor job of
providing families information about
dying prisoners, much less frequent
opportunities and time to visit with
and support them in their final days.

Public safety

Caring for older prisoners and those
with serious health conditions is
expensive, and will likely become
more expensive in the years to come.
Leaving prison affords them access to
community-based health care or endof-life supports at a fraction of the cost
incurred behind bars.23 State criminal
justice systems can use those savings to
protect the public rather than spending criminal justice funds to warehouse
elderly and dying men and women
behind bars.
Prisoners who are older, those who are
experiencing serious medical, cognitive, or mental health conditions, and
those with terminal illnesses are not
only among the most costly to care
for; they are also the least likely to be
rearrested or returned to prison.24 A
Department of Justice review of federal
prisoners who received compassionate release found their recidivism rate
to be 3.1 percent, a tiny number when
compared with recidivism of full-term

Everywhere and Nowhere: Compassionate Release in the States

prisoners.25 A recent study of all federal
prisoners released in 2005 who were
followed for eight years found that
nearly 50 percent were rearrested and
30 percent returned to prison.26 According to the U.S. Sentencing Commission, as people grow older, their
risk of committing crimes drops. An
eight-year study found that 13.4 percent of prisoners who were 65 years old
or older when released were rearrested,
compared with 65.4 percent of those
released prior to age 21,27 and stated
that “[o]lder offenders who do recidivate do so later in the follow-up period,
do so less frequently, and had less serious recidivism offenses on average.”28
The list of reasons for keeping men
and women behind bars shortens as
age and chronic or terminal conditions
impose increasing physical limitations
and emotional burdens on them. The
classic rationales for imprisonment are
punishment, rehabilitation, protection
of the public, and deterrence. However,
“[t]hese justifications may be substantially undermined for prisoners who
are too ill or cognitively impaired to be

aware of punishment, too sick to participate in rehabilitation, or too functionally compromised to pose a risk to
public safety.”29
Prisons are not set up to allow for personal integrity for individuals nearing
death or enduring extreme medical
conditions. Even dying prisoners are
shackled and frequently denied family bedside visits. Prisons are by nature
and design poorly suited to address
individual needs for familial contact,
the settling and restoration of relationships, and the personal warmth and
support that is taken for granted by
people outside prison. Medical ethicists
call this patient-centered care. Prisons
cannot provide it.30
We believe that prisoners facing death
and those enduring chronic or debilitating conditions are entitled to the
emotional, physical, and spiritual dignity that the non-incarcerated expect.
Withholding those supports does nothing to advance public safety or meet
the purposes of punishment.

The list of
reasons for
keeping men and
women behind
bars shortens as
age and chronic
or terminal
conditions
impose
increasing
physical
limitations
and emotional
burdens on
them.”
11

Everywhere and Nowhere: Compassionate Release in the States

This Report:

What we did, what we found
Our research

Given the strong case for compassionate release, we wanted to learn more
about whether states were using such
release programs. We launched an
in-depth examination of compassionate release rules in all 50 states and the
District of Columbia. Our research
included an exhaustive review of legislation, agency regulations and policies, and to a lesser extent, handbooks,
FAQs, statistical reports, and news
accounts.
The fruits of this research can be found
in the detailed memos on our website,
www.famm.org. For each state, we
attempted to answer the following
questions:

We found that
49 states and
the District
of Columbia
provide one or
more forms of
compassionate
release.”

	
	

• Who is eligible for early release	 	
due to illness or advanced age?

	
	

• How do individuals in prison
or others acting for them apply?

	
	

• What documentation must
be provided?

	
	

• Who decides whether to grant
compassionate release and how?

	
	

• What happens after someone
is released?

	 • Does the state keep records
	 on the number of compassionate
	releases?

An overview of our findings

While the details of our research are in
the individual state memos, here are
some of our most significant findings.

12

We found that 49 states and the
District of Columbia provide one
or more forms of compassionate
release. Only Iowa has no specific
compassionate release law or
regulation. Several other states, such

as Illinois and Michigan, technically
have programs in place, but provide
no detailed rules or guidance on
implementing them.
We also learned that states use different
methods with different names to
carry out what we consider to be
compassionate release. These include
medical and geriatric parole, shortand long-term medical furloughs,
suspension or reduction of sentences,
and executive clemency on medical
grounds. Many states have in place
more than one of these means.
Most states recognize terminal illness
and severe medical conditions as
grounds for release. A majority require
that a prisoner’s condition be so poor
that he or she will pose no threat to
public safety. Many states provide
compassionate release to prisoners
when they reach a certain age and have
served some minimum portion of their
sentence. A few states consider the cost
or difficulty of caring for prisoners who
are very ill or dying. A handful of states
cite humanitarian grounds.
The processes states use to decide if
a prisoner is eligible for release range
from straightforward to very complex.
Many programs have multiple layers of
review, which consume precious time
for prisoners with worsening health or
facing imminent death.
Only 13 states are required by state
law to keep track of and report
compassionate release statistics,
with very few of them making that
information public.
Most importantly, we learned that
while compassionate release programs
are widespread, very few individuals,
on the whole, benefit.31 How few?
Pennsylvania, for example, is not

Everywhere and Nowhere: Compassionate Release in the States
required to report statistics, but a
2015 news article stated that only nine
prisoners were granted compassionate
release between 2009 and 2015.32 In
Kansas, which has detailed eligibility
criteria and process rules, just seven
individuals received compassionate
release between 2009 and 2016.33 In
New Jersey, medical parole has been
granted no more than two times a year
since 2010.34
Dozens of states across the country
have been passing sentencing and
prison reforms over the past 10 years
in an effort to safely reduce their prison
populations and save money. The
very small number of prisoners who
have received compassionate release
suggests that this avenue for reducing
the number of high-cost, low-risk
prisoners is sorely underused.

BARRIERS TO
COMPASSIONATE
RELEASE

Given the widespread availability of
compassionate release, we wanted to
understand why it is so infrequently
used. Besides the difficulty for
prisoners and their families of finding
out about and understanding the
conditions and requirements of these
programs, we found other obstacles to
compassionate release. Among them:
	

• Strict or vague eligibility

	requirements;
	

• Categorical exclusions;

	 • Missing or contradictory
	guidance;
	
	

• Complex and time-consuming
review processes; and

	

• Unrealistic time frames

Most of the programs we studied
presented multiple barriers to
compassionate release. We discuss each
type of barrier below.

Strict or vague eligibility
requirements

In many states a prisoner only qualifies
for compassionate release if diagnosed
with a medical condition that results
in debilitation or incapacitation
severe enough to prevent him or her
from committing a crime or posing
a danger to the community. For
example, New York provides for early
release of prisoners with a “significant
debilitating illness,” as long as their
condition is so incapacitating that
there is a reasonable probability they
pose no threat to society.35 While that
may strike some as harsh, it is at least
grounded in keeping the community
safe — an acceptable purpose of
sentencing.
In contrast, we were struck by the
number of states that use eligibility
criteria that seem unduly, and
even cruelly, restrictive. California
prisoners cannot secure medical
parole unless they are permanently
medically incapacitated, unable
to perform “activities of daily
living” such as breathing, eating or
eliminating, and require constant,
round-the-clock care.36 Georgia’s
medical reprieve mechanism is only
available to prisoners who are “entirely
incapacitated” and who are “reasonably
expected” to die within 12 months.37
In Mississippi, a conditional medical
release requires that the prisoner be
“bedridden.”38
Some requirements are so vague
or undefined that they can be
misinterpreted. Prison staff or
decision-makers may fail to identify
eligible prisoners because they do not
understand the criteria themselves. For
example, Montana requires that to be
eligible, a non-terminal prisoner must
need “extensive medical attention.”39
We could find nothing explaining what
Montana considers “extensive.” New
Continued on next page

The very small
number of
prisoners who
have received
compassionate
release suggests
that this avenue
for reducing
the number of
high-cost, lowrisk prisoners
is sorely
underused.”
13

Everywhere and Nowhere: Compassionate Release in the States
Continued from previous page

Hampshire will consider release of
incapacitated or terminally ill prisoners
only if the cost of their medical care is
“excessive,”40 without explaining what
constitutes “excessive.” In Missouri, a
prisoner can be granted medical parole
if confinement “will necessarily greatly
endanger or shorten the offender’s
life.”41 Rhode Island permits severely
ill prisoners with no chance of recovery
early release, but only if the state will
otherwise incur “exorbitant expenses”
for their care, but the state’s rules fail to
define “exorbitant.”42

Categorical exclusions

We found a
number of
states providing
little if any
policy guidance
or procedures
that prison staff,
corrections
officials, or final
decision-makers
could use to
implement
compassionate
release.”
14

Many states categorically exclude
certain kinds of prisoners from
consideration. For example, Alaska
forbids medical parole to prisoners
convicted of sexual assault or abuse.43
New Jersey has a lengthy list of crimes
that prevent a prisoner from being
qualified for medical parole.44 South
Carolina and a number of other states
will not consider prisoners who are
sentenced to life without parole or
death for compassionate release.45
Louisiana regulations forbid release of
prisoners with contagious diseases,46
and Maine only considers prisoners
in minimum security.47 A handful
of states deny release, even to dying
prisoners, until they have served a
minimum portion of their sentence.
For example, Indiana will not consider
terminally ill prisoners for a temporary
leave due to terminal illness unless
they are within seven and a half years
of their release date.48

Missing or contradictory
guidance

We found a number of states
providing little if any policy guidance
or procedures that prison staff,
corrections officials, or final decisionmakers could use to implement
compassionate release. In other cases,

we came across outdated policies
or regulations starkly at odds with
statutory provisions. We believe
outdated or inconsistent rules and
procedures prevent prisoners and their
advocates from seeking compassionate
release. These problems also frustrate
corrections staff and other decisionmakers from pursuing compassionate
release in individual cases.
Arizona, for example, requires
prisoners seeking release to be facing
“imminent death,” but provides
three different definitions of what is
imminent — within three months,
four months, or six months of
death, depending on the authority.49
Maryland’s medical parole statute lists
criteria that are different from those
listed in the regulation intended to
implement it.50 Michigan has medical
parole but in name only. The program
is described in a mere two sentences
and there are no accompanying
policies, rules, or guidance of any
kind.51
This lack of information denies
medical staff and corrections, parole,
and/or executive officials the standards
and procedures they need to do their
work. They are likely to fill the gap
with subjective interpretations and
standards, or, lacking guidance, fail
to act at all. For example, Georgia
has a medical reprieve program for
prisoners who are within 12 months
of death.52 There are, however, no
rules or regulations explaining how
the Department of Corrections is
supposed to approve, process, or
refer eligible prisoners to the Georgia
Board of Pardons and Paroles, which
is the decision-maker, for medical
reprieves.53 Attempts to streamline
requests so that they go directly
from prisoners to the Board have not
appeared to fix the problems; between
2011 and 2016, 14 prisoners died
awaiting review and another 16 died

Everywhere and Nowhere: Compassionate Release in the States
awaiting release after they had been
approved.54

do not. A lack of time frames means
delays are inevitable.

One reason the statutory criteria is too
restrictive or poorly designed is that
most state legislatures have not used
medical professionals to help define
conditions such as “terminal illness”
or “permanent incapacitation.”55 For
example, it is well-known in medical
circles that the accuracy of predictions
about when a person will die is very
limited.56 Relying on 30- to 60-day
end-of-life predictions, or using any
time frame for that matter, ignores
the fact that physicians hesitate to
make such forecasts and might err
on the side of time frames that are
unrealistically long. Some doctors are
reluctant to predict life spans and so
simply do not.57 Medical eligibility
criteria designed without the assistance
of medical professionals are inexact
and even counterproductive.

Ohio is among the most extreme
examples. The state has established two
early release mechanisms: (1) judicial
release for medically incapacitated
or terminally ill prisoners (those
within 12 months of death), and (2)
administrative release for prisoners
facing imminent death (within six
months).58 However, those facing
imminent death cannot apply for
administrative release until they have
exhausted the judicial release process.59
Worse, the judicial release process can
be slow, requiring certification that the
prisoner is medically eligible from the
prison’s chief medical officer.60 When
denied, the prisoner must reapply to
an administrative release process that
is an even more confusing maze of
hurdles and hoops for dying prisoners
and their families to navigate, with no
time frames or right to appeal.61

Complex and time-consuming review processes

While some states provide little
to no guidance for those seeking
compassionate release, other states
have unnecessarily complex release
procedures. These burdensome
requirements have negative
consequences. Gathering multiple
diagnoses and institutional reports
and checking and double-checking
release plans take time, which
many individuals who are eligible
for compassionate release simply
do not have. The requirement that
a recommendation clear multiple
decision-makers means the process can
bog down when a request languishes
on the desk of a busy corrections
official. Documentation requirements
can be seen as a waste of time by
medical workers, as it take hours to
fill out paperwork during which they
could be caring for prisoners. Some
programs provide deadlines to help
move applications forward, but most

The state of Washington also subjects
prisoners to multiple reviews and
approval stages for its Extraordinary
Medical Placement program.62 The
Health Service Department must
make findings ranging from whether
the prisoner is seriously ill to whether
the prisoner poses a low threat to
the community and has funding and
community support if released.63
Documentation is gathered, and
the case is referred to four different
offices, two for additional investigation
and evaluations and two to meet
notice requirements.64 The request
must clear several additional hurdles
before it makes it to the Secretary of
Corrections, in whose hands rests
the final decision.65 The prisoner can
be denied at almost every step of the
process, and there are no required time
frames.

Some programs
provide
deadlines to
help move
applications
forward, but
most do not.
A lack of time
frames means
delays are
inevitable.”

Unrealistic time frames

A handful of states that provide early
Continued on next page

15

Everywhere and Nowhere: Compassionate Release in the States
Continued from previous page

release to terminally ill prisoners
undercut the authority by requiring a
prognosis of only 30 to 60 days. Given
that compassionate release review
processes can eat up weeks or months,
it is virtually impossible for a prisoner
with a short time to live to survive long
enough to hear the decision.

Given that
compassionate
release review
processes can
eat up weeks
or months,
it is virtually
impossible for
a prisoner with
a short time to
live to survive
long enough
to hear the
decision.”
16

Kansas is one of the most extreme
examples. To be eligible for Terminal
Medical Release, a prisoner’s death
must be expected within 30 days.66
A “unit team” in the prison initially
evaluates the request, which then
proceeds to a complicated vetting
process. Reviews are conducted by
officials at seven different levels in the
Department of Corrections before
reaching the Prisoner Review Board
for a decision.67 Annual reports from
these two agencies do not include
how many people facing death were
released; however, news accounts
indicate that only two people secured
early release for medical reasons
between 2011 and 2016. It was not
reported whether either of those were
for a terminal condition.68

BEST
COMPASSIONATE
RELEASE
PRACTICES

Nearly every program we studied
includes barriers that limit prisoners
seeking compassionate release. But
many, including those programs with
barriers, also include features that we
consider useful and well-constructed.
These features are worth highlighting
here for policymakers trying to
improve their state programs, with this
caveat: Some of the positive features
highlighted below are undermined by
program flaws in the very same state.

Identifying individuals
eligible for release	
One of our chief concerns about
compassionate release programs is
that most prisoners do not even realize
these mechanisms exist, much less
know how to begin the process of
applying and being considered. We
were encouraged to find states that
actively identify and provide initial
support to prisoners. Alabama requires
that applications and release forms be
provided to all correctional medical
care providers and made available
at every institution so they can be
distributed to prisoners.69 Similarly,
New Mexico corrections staff must
provide all individuals over age 65, and
thus potentially eligible for geriatric
parole, with a copy of the policy and
forms each year. In addition, that same
information is provided to all prisoners
when they arrive on a geriatric or longterm care unit.70
While many states require that
applications be initiated by corrections
staff, a few states direct staff to actively
seek prisoners who might qualify. In
North Carolina, facilities housing
acute and long-term care patients are
required to identify on a quarterly
basis prisoners who match the
compassionate release medical and
age criteria.71 In California,72 prison
doctors are directed to identify and
recommend individuals who might
meet the medical parole eligibility
criteria.

Involving families

Some states do a good job of making it
possible for families to be involved in
the compassionate release application
process or in helping prisoners plan for
early release. This kind of participation
can help officials identify eligible
prisoners and the resources they will
need in the community should they be

Everywhere and Nowhere: Compassionate Release in the States
released.
Quite a few states permit family
members to begin the application
process themselves. In Connecticut, a
family member’s request for a medical
diagnosis to determine if the prisoner
is eligible triggers the application
process.73 In North Carolina, families
can begin the process by directly
applying on the prisoner’s behalf
to the appropriate office.74 Idaho
allows family members to help with
developing release plans for prisoners
seeking medical parole, though it is
up to the family member to tell the
Deputy Warden of their interest in
helping.75
California is alone among the states
in providing family notification, once
authorities have identified a prisoner
as potentially eligible for its Recall of
Sentence due to terminal illness or
permanent incapacitation. Within
48 hours of learning of the prisoner’s
condition, the warden must notify
the prisoner about the recall process
and arrange for a family member or
other representative to be advised of
the process and updated about the
loved one’s medical condition and
prognosis.76

Clear, commonsense, or
objective eligibility criteria
We found that some states have clear
and objective eligibility criteria. At
least 17 states, for example, provide
for geriatric parole, using age —
combined in some states with timeserved requirements — as eligibility
indicators. These include Texas (65
years old),77 California (at least 60
years old with 25 years served),78 and
Virginia (at least 60 years old with 10
years served or 65 years old with five
years served).79

Some states link criteria to
commonsense considerations, such
as the inability to provide appropriate
medical or long-term care in a prison
setting. Hawaii 80 considers whether
the prisoner’s condition requires
treatment or a level of care that cannot
be provided in a prison setting, as does
Wyoming.81
We were also impressed with the
handful of states that assess whether
continued incarceration defeats the
purposes of punishment, in the context
of their state’s compassionate release
program. Oregon evaluates whether
it would be cruel or inhumane to keep
the individual in prison.82 Rhode
Island states that “[m]edical parole
is made available for humanitarian
reasons and to alleviate exorbitant
medical expenses associated with
inmates whose chronic and incurable
illness render their incarceration nonpunitive and non-rehabilitative.”83
Hawaii similarly addresses the
purposes of punishment head-on,
allowing medical release for prisoners
too ill or cognitively impaired to
participate in rehabilitation and/or to
be aware of punishment.84
While we believe Ohio’s many-layered
evaluation and decision-making
processes likely hinder compassionate
release, we found that the eligibility
criteria of their program is broad and
for the most part easily evaluated.
For example, it provides for release of
“medically incapacitated” prisoners
who have any diagnosable medical
condition (including dementia and
cognitive disabilities); who cannot
do things such as feeding or dressing
themselves without significant
assistance; are so affected that prison
“offers no additional restriction”;
and who are unlikely to noticeably
improve. 85
Continued on next page

We were also
impressed with
the handful
of states that
assess whether
continued
incarceration
defeats the
purposes of
punishment,
in the context
of their state’s
compassionate
release
program.”

17

Everywhere and Nowhere: Compassionate Release in the States
Continued from previous page

Reasonable time frames
and processes	
While many states’ lengthy processes
for compassionate release based on
terminal illness can mean the grant
comes after a prisoner has already
died, other states wisely allow the
process to follow on a more reasonable
schedule. South Carolina prisoners
can begin the process if they are
expected to die within two years,86
while South Dakota,87 the District of
Columbia,88 and Vermont 89 do not
require a prognosis of death within any
specific time frame when considering
compassionate release for prisoners
who are terminally ill.90

It is important
that the prisoner
have assistance
with applying for
benefits early in
the compassionate
release process,
especially
considering the
complexity of
navigating eligibility
for public benefits
and the limitations
that all prisoners,
especially those who
are struggling with a
serious or terminal
illness, face
in doing so.”
18

Several states have well-defined
deadlines and clear steps for staff and
officials to complete assessments,
review recommendations, and make
decisions. This clarity is especially
important in the cases of prisoners
who are nearing the end of life and
for anyone else whose incarceration
is more burdensome due to age or
illness. California lays out time frames
within which assessments, reviews,
and recommendations must occur for
medical parole cases. The expectations
and steps taken seem clearly set out
and specific and, because they are
time-limited, may keep cases from
languishing without action.91
Minnesota has a relatively well-defined
documentation and assessment process
(again with deadlines), and while there
are a series of reviews, roles appear
thoughtfully designed and clear.92
The entire process, including the
ultimate decision, takes place within
the Department of Corrections.93 That
said, the Minnesota program appears
better on paper than in practice; only
seven people were granted Conditional
Medical Release in 2016.94

Representation
Given the complexity of rules and
criteria, we were surprised to see
how few systems allow for or provide
counsel for prisoners, including
prisoners who must go before a parole
board. A very few states allow lawyers
to represent prisoners in release
proceedings before a parole board or
judge. Alaska allows petitioners to
be represented by counsel, but at the
prisoner’s expense.95 In Arkansas,
clemency applicants may have a
representative before the Parole
Board.96 In Rhode Island, the public
defender’s office can represent
prisoners seeking Medical Parole.97

Supportive release planning
Slightly more than half the states
require release plans for prisoners
granted compassionate release. Some
states even prohibit compassionate
release unless there is a detailed
discharge plan and it can be
determined that the prisoner’s health
care costs and needs will be met.
Despite those requirements, only a
handful of states provide support
and assistance in developing these
plans. Given that prisoners who are
seriously ill or elderly will need to
secure housing, health care, Medicaid,
and other public benefits, assistance
with release planning is essential. It
is important that the prisoner have
assistance with applying for benefits
early in the compassionate release
process, especially considering the
complexity of navigating eligibility for
public benefits and the limitations that
all prisoners, especially those who are
struggling with a serious or terminal
illness, face in doing so.
Minnesota appears to provide excellent
resources and supports to prisoners
on this front, even before they are
identified for release. Release planning

Everywhere and Nowhere: Compassionate Release in the States
begins as soon as the Department of
Corrections identifies a prisoner as
potentially eligible, and specialized
release planners and caseworkers put
all the pieces in place. This includes
arranging for the prisoner to be preassessed by county social services,
applying to community placement
facilities, coordinating the request so
that the individual’s medical needs are
considered, and applying for Medicaid
and other health care funding.98 North
Carolina provides a social worker who
begins comprehensive release planning
within 45 days of the prisoner’s
Medical Release request.99 The social
worker meets with the prisoner and
develops a “comprehensive, viable and
appropriate” release plan, including
medical treatment, identifying who will
provide it, and locating and applying
for financial resources.100 New York
begins the process once a prisoner has
been recommended for Medical Parole
by the Department of Corrections and
Community Supervision.101 New York
policy also provides for comprehensive
support once the release decision has
been made, ensuring that records and
transportation arrangements are in
place.102

Right to reapply
The majority of states do not provide
prisoners denied compassionate release
a means to appeal the denial. Given
how few people are released by state
prisons and the fact that mistakes of
fact or judgment are inevitable, the
right to appeal should be guaranteed.
At best, a prisoner may reapply after a
set time.
Alaska permits prisoners denied
Special Medical Parole to seek
reconsideration within 30 days of the
decision and sets specific grounds for
reconsideration.103 The Board must
rule within 60 days and may grant a
new hearing.104 Rhode Island allows
a prisoner to reapply after 60 days of a

rejection if he or she can demonstrate
a material change in circumstances.105
Similarly, Delaware waives the normal
waiting period of one year in the case
of serious medical illness.106

Tracking and reporting
outcomes
More than half of the states do not
track or collect any data on how
many people apply for and receive
compassionate release. We believe
that if lawmakers were aware of how
few people are granted compassionate
release they might be moved to
examine why and act to improve the
programs. Knowing who asks for
compassionate release, who is denied,
and why and how those requests are
decided is essential to improving
outcomes so that, for example, more
eligible prisoners are released and
terminally ill prisoners get expedited
reviews.
Thirteen states have a statutory or
regulatory reporting requirement for
their compassionate release programs.
They include New Mexico, which
requires that the Parole Board provide
annual reports to the legislature about
how many people apply for release, the
grounds on which they rely, reasons for
denials, and the number of prisoners
who must return to prison and why
they are returned.107 New York also
has comprehensive reporting rules and
makes Medical Parole data available
on the Department of Corrections and
Community Supervision website.108
Massachusetts’ new Medical Parole
law requires an annual report detailing
the numbers of prisoners applying,
including the race and ethnicity of each
applicant; the number of prisoners
granted Medical Parole, and the race
and ethnicity of each; the nature of the
illness of each applicant; the number of
prisoners denied Medical Parole, the
Continued on next page

The majority
of states do
not provide
prisoners
denied
compassionate
release a means
to appeal the
denial.”

19

Everywhere and Nowhere: Compassionate Release in the States
Continued from previous page

reason for the denials, and the race and
ethnicity of each prisoner denied; and
the number of prisoners released who
have been returned to Department
custody and the reason for each
prisoner’s return.109
In addition, eight states publish some
publicly available data on the numbers
of individuals granted compassionate
release even though they are not
required by law to do so. Colorado and
Florida are particularly noteworthy in
the comprehensiveness of the data they
collect and make available online.

CONCLUSION

It’s time to
bring utility,
efficiency,
and above all
humanity into
a process that
should reflect
foundational
principles of
mercy and
justice.”

20

We opened this report with the story
of Bernie Mulka, the prisoner who was
dying shackled to a prison bed. What
he and his family endured to secure
his compassionate release is all too
familiar. That he was released is not;
compassionate release grants are the
exception rather than the rule.
We set out to write the state memos
on which this report is based to give
families like the Mulkas accurate
information about compassionate
release. Prisoners do not know that
a program exists, much less who is
eligible. They do not know how to
apply or how decisions are made.
They do not know when to expect to
receive the ultimate decision, or by
what means. In many cases prisoners
are literally running out of time to
find the information they need to be
effective advocates for release. They
and their families know very little
about a program that has profound
implications for all of them.
This project was designed to give them
that information.
Unpacking state laws and regulations
challenged us. In researching state
programs, we found many problems
with compassionate release besides the
paucity of information for prisoners.
While compassionate release is nearly
universal, it is underused. We believe
that is due, in part, to poor design.
For example, the criteria by which a

prisoner’s application is granted or
not is often not informed by medical
knowledge and is unduly strict. Stated
rules do not give sufficient guidance to
staff and officials, and time frames are
so unrealistic that prisoners die waiting
for decisions that come too late.
Meanwhile, we also found programs
in some states with commendable
features, such as family notification,
well-defined criteria, and clear
directions to decision-makers with
realistic time frames.
Providing cohesive and concise
information about compassionate
release programs as we have done here
is critical to improving those programs.
We hope the state memos included will
spur lawmakers, prison officials, and
parole authorities to critically examine
compassionate release programs and
take steps toward improvement.
We have compiled recommendations
that draw on the best and worst
features of state programs. Our list
addresses several aspects of the
process, from eligibility to release
planning and transparency.
Above all, we hope that these
recommendations help policymakers
approach the task of improving early
release programs with compassion,
recognizing that the prisoners for
whom the programs are designed
often face the very real, human, and
daunting challenges of extreme illness,
age, disability, or impending death.
It’s time to bring utility, efficiency, and
above all humanity into a process that
should reflect foundational principles
of mercy and justice.

RECOMMENDATIONS
Enact Compassionate
Release Policies in All
States
	
	
	
	
	

1. Pass or amend legislation
guaranteeing compassionate release
on the basis of serious medical
conditions, terminal illness, and
advanced age.

Everywhere and Nowhere: Compassionate Release in the States
	
	
	

2. Enact, amend, or update agency
rules so that they are consistent
with compassionate release laws.

	 12. Train corrections staff to underst
	 and eligibility criteria for compassionate
	release.

	
	
	

3. Replace uncertain, inconsistent,
or confusing rules and policies
with effective, clear policies.

	
	
	

Ensure That Eligibility Criteria
Is Fair and Just
	
	
	
	

4. Guarantee that all eligible prisoners
are considered for compassionate
release, notwithstanding their crime,
sentence, or amount of time left to serve.

	 5. Remove unduly strict, cruel,
	 or otherwise unwarranted eligibility
	requirements.
	
	
	
	

6. Base medical, end-of-life,
and geriatric criteria on evidence
and best practices, with input from
medical experts.

13. Teach staff how to identify eligible
prisoners and make it their duty
to do so.

	 14. Keep prisoners, family members,
	 and advocates informed at each stage
	 of the assessment and decision-making
	process.
	 15. Designate and train staff as family
	 liaisons to coordinate with family
	members.

Provide Assistance With
Post-Release Planning
	
	
	
	
	
	
	

16. Assign dedicated staff to assist
ill and elderly prisoners with pre-and
post-release planning, including
applying for public assistance, veterans’
benefits, housing and medical facility
placements, Medicaid and/or Medicare,
and other supports.

7. Establish time frames within which
document-gathering, assessment,
and decision-making must occur
that are realistic, provide sufficient time
to develop informed decisions, and are
sensitive to the need for expedited
review in the case of terminal illness.

	
	
	

17. Allow attorneys to apply
for compassionate release on behalf
of prisoners.

	
	
	
	

18. Ensure the right to counsel
for all compassionate release
proceedings, including appeals
and revocations.

Publicize Compassionate
Release Programs and Policies

	
	
	

19. Provide the right to appeal denials
or the right to reapply following
a denial.

Establish Deadlines to Keep
Applications Moving
	
	
	
	
	
	
	

	
	
	
	
	

8. Provide information about
compassionate release options to each
entering prisoner; ensure prison
handbooks include a section that clearly
explains eligibility and application.

	
	
	

9. Make sure prison law libraries have
easy-to-find information and
application forms.

	
	
	

10. Provide readily accessible
information on relevant state
agency websites.

	
	
	
	

11. Involve families in identifying
eligible prisoners and providing
support, such as in coordinating
release planning.

Require Data Collection
and Reporting
	
	
	
	
	
	
	

20. Require all agencies involved
in compassionate release to provide
annual data—including demographic
information—on applications,
approvals, denials, and revocations, 	
including reasons for denials
and revocations.

	
	
	

21. Establish measures of success
and report on how well states meet
these measures.

21

Notes
1

Human Rights Watch & Families Against Mandatory Minimums, The Answer Is No: Too Little Compassionate Release in US Federal Prisons (Nov. 30, 2012), https://famm.org/wp-content/uploads/TheAnswer-is-No-compassionate-release.pdf.
2
Office of the Inspector General, U.S. Dep’t of Justice, The Federal Bureau of Prisons’ Compassionate
Release Program (Apr. 2013), https://oig.justice.gov/reports/2013/e1306.pdf.
3

The Bureau of Prisons expanded eligibility for federal compassionate release in 2015. See Bureau of
Prisons, Program Statement 5050.49, Compassionate Release, Reduction in Sentence: Procedures for
Implementation of §§ 3582(c)(1)(A) and 4205(g), (Mar. 25, 2015), https://www.bop.gov/policy/progstat/5050_049_CN-1.pdf.; see also Press Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission
Approves Significant Changes to the Federal Sentencing Guidelines (Apr. 15, 2016), https://www.ussc.gov/
about/news/press-releases/april-15-2016.
4

See, e.g., H.R. 5682, The First Step Act, 115th Cong., § 403, (as passed by the House of Representatives,
May 24, 2018), https://www.congress.gov/115/bills/hr5682/BILLS-115hr5682ih.pdf.
5

See Campaign for Compassionate Release at https://famm.org/our-work/compassionate-release/; see
also Campaign for Compassionate Release Principles at https://famm.org/wp-content/uploads/SignatoryStatement-Comp-Rel-.pdf.
6

See 18 U.S.C. § 3582 (c) (1) (A); see also The Answer Is No: Too Little Compassionate Release in US
Federal Prisons, supra note 1.
7

George Pro & Miesha Marzell, Medical Parole and Aging Prisoners: A Qualitative Study, 23 J. of Correctional Health Care 162, 162 (2017), https://www.ncbi.nlm.nih.gov/pubmed/28358232.
8

E. Ann Carson & William J. Sabol, U.S. Dep’t of Justice/Bureau of Justice Statistics, Aging of the State
Prison Population, 1993-2013, at 1 (May 2016), https://www.bjs.gov/content/pub/pdf/aspp9313.pdf.
9

Id.

10

E. Ann Carson, U.S. Dep’t of Justice/Bureau of Justice Statistics, Prisoners in 2016 at 15, Table 9 (Jan.
2018), https://www.bjs.gov/content/pub/pdf/p16.pdf.
11

Carson & Sabol, supra note 8, at 2, Table 1.

12

Carson, supra note 10, at 1.

13

Pro & Marzell, supra note 7, at 162.

14

Cyrus Ahalt et al., Paying the Price: The Pressing Need for Quality, Cost, and Outcomes Data to Improve
Correctional Heath Care for Older Prisoners, 61 J. of the Am. Geriatrics Society 2013, 2014 (2013), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC3984258/.
15

Id. at 2013.

16

Id. See also Pew Center on the States, One in 100: Behind Bars in America 2008 at 11-12 (2008), http://
www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2008/one20in20100pdf.pdf; see also Pro &
Marzell, supra note 7, at 162, 163.
17

Pew Charitable Trusts, Prison Health Care: Costs and Quality 23 (Oct. 2017), http://www.pewtrusts.
org/~/media/assets/2017/10/sfh_prison_health_care_costs_and_quality_final.pdf.
18

Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States 48-52 (Jan.
2012) (discussing steps prisons take to house older prisoners), https://www.hrw.org/sites/default/files/
reports/usprisons0112webwcover_0.pdf.

22

Notes
19

Joe Russo et al., Caring for Those in Custody: Identifying High-Priority Needs to Reduce Mortality
in Correctional Facilities 1 (Rand Corporation, 2017), https://www.rand.org/pubs/research_reports/
RR1967.html.
20

Nat’l Ass’n of Area Agencies on Aging, Supporting America’s Aging Prisoner Population: Opportunities and Challenges for Area Agencies on Aging 5 (Feb. 2017), https://www.n4a.org/Files/n4a_
AgingPrisoners_23Feb2017REV%20(2).pdf.
21

See, e.g., Steven Berry et al., The Gold Coats - An Exceptional Standard of Care: A Collaborative Guide
to Caring for the Cognitively Impaired Behind Bars 4-5, 31-32 (2016) (describing a California State
prison program in which healthy prisoners care for those with dementia).
22

Kristin G. Cloyes et al., Caring to Learn, Learning to Care: Inmate Hospice Volunteers and the Delivery of
Prison End-of-Life Care, 23 J. Correctional Health Care 43-55 (Jan. 2017), https://www.ncbi.nlm.nih.gov/
pubmed/28100141.
23

Brie Williams et al., For Seriously Ill Prisoners, Consider Evidence-Based Compassionate Release
Policies, Health Affairs Blog, Health Affairs (Feb. 2017), https://www.healthaffairs.org/do/10.1377/
hblog20170206.058614/full/.
24

See KiDeuk Kim & Bryce Peterson, Aging Behind Bars: Trends and Implications of Graying Prisoners in
the Federal Prison System 21-22 (Washington DC: Urban Institute, 2014), https://www.urban.org/sites/
default/files/publication/33801/413222-Aging-Behind-Bars-Trends-and-Implications-of-Graying-Prisoners-in-the-Federal-Prison-System.PDF; see also Office of the Inspector General, U.S. Dep’t of Justice, The
Impact of an Aging Inmate Population on the Federal Bureau of Prisons 38-41 (Feb. 2016), https://oig.
justice.gov/reports/2015/e1505.pdf.
25

Office of the Inspector General, U.S. Dep’t of Justice, supra note 2, at 49-51.

26

U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A Comprehensive Overview 15
(Mar. 2016), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf.
27

U.S. Sentencing Comm’n, The Effects of Aging on Recidivism Among Federal Offenders 22 (Dec.
2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf.
28

Id.

29

Brie A. Williams et al., Balancing Punishment and Compassion for Seriously Ill Prisoners, 155 Ann. Intern. Med. 122, 122 (July 19, 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3163454/.
30

Andreas Mitchell & Brie Williams, Compassionate Release Policy Reform: Physicians as Advocates for Human Dignity, 19 AMA J. of Ethics 854, 856 (Sept. 2017), https://www.ncbi.nlm.nih.gov/
pubmed/28905726.
31

Mitchell & Williams, supra note 30, at 854, 855; see also Pro & Marzell, supra note 7, at 162, 163.

32

Jeffrey Benzing, Prison release rarely an option for dying state inmates, Public Source, June 14, 2015,
http://publicsource.org/prison-release-rarely-an-option-for-dying-state-inmates/.
33

The annual reports are available on the Kansas Department of Corrections website at https://www.doc.
ks.gov/publications/publications/Reports.
34

Nicole Leonard, State assemblymen pass health bills on medical parole, disability and more, Press of Atlantic City, Aug. 6, 2017, http://www.pressofatlanticcity.com/news/state-assemblymen-pass-health-billson-medical-parole-disability-and/article_d06634da-3d26-5ced-8e21-abc6e3df21b4.html.

23

Notes
35

N.Y. Exec. Law § 259-s (1) (a); New York Department of Corrections and Community Supervision
Directive 4304, § II.
36

Cal. Penal Code 3550 § (a); Cal. Code Regs. tit. 15, § 3359.1 (a) (1).

37

Ga. Code Ann. §§ 42-9-43 (b) (1) (A) and (b) (2); Conn. Gen. Stat. §§ 54-131b and 54-131c.

38

Miss. Code Ann. § 47-7-4.

39

Mont. Code Ann. §§ 46-23-210 (1) (c) (i) and (ii); Montana Department of Corrections Policy Directive 4.6.7, § IV.A.1.d.
40

N.H. Rev. Stat. Ann. § 651-A:10-a.I (b); New Hampshire Department of Corrections Policy and Procedure Directive 6.13 (2017).
41

Mo. Rev. Stat. § 217.250; Missouri Department of Corrections Board of Probation and Parole, Procedures Governing the Granting of Paroles and Conditional Releases (2017), § 23.A (1).
42

R.I. Gen. Laws §§ 13-8.1-3 (a) and (c) (6), as modified in House Bill 5128, signed and effective on September 28, 2017, http://webserver.rilin.state.ri.us/BillText/BillText17/HouseText17/H5128A.pdf.
43

Alaska Stat. § 33.16.085 (a) (1), referencing Alaska Stat. §§ 11.41.410-.425 and 11.41.434-.438.

44

N.J. Rev. Stat. § 30:4-123.51c-1 (a) (3); N.J. Admin. Code § 10A:71-3.53 (b); New Jersey State Parole
Board, The Parole Book: A Handbook on Parole Procedures for Adult and Young Adult Inmates (5th Edition), Appendix 10, § B.
45

Letter to Kela E. Thomas, Director, Department of Probation, Parole and Pardon Services, from Brendan McDonald, Assistant Attorney General, Aug. 24, 2015, http://2hsvz0l74ah31vgcm16peuy12tz.wpengine.netdna-cdn.com/wp-content/uploads/2015/08/00733624.pdf.
46

Louisiana Department of Public Safety and Corrections Policy HC-06, § 7.

47

See Me. Rev. Stat. Ann. tit.34-A, § 3036-A.2.D.

48

Indiana Department of Correction Manual of Policies and Procedures Policy 02-04-104 § IV-E (2014).
Compare Ariz. Dep’t of Corrections, Dep’t Order Manual (2017), Chapter 1000-Releases/Community
Supervision, Dep’t Order 1002-Inmate Release Eligibility System, § 1.11.3, Definitions at 43, https://corrections.az.gov/sites/default/files/policies/1000/1002-effective_041017.pdf, with Ariz. Board of Executive
Clemency, Frequently Asked Questions, https://boec.az.gov/helpful-information/frequently-asked-questions; Arizona Board of Executive Clemency, Commutation of Sentence Application, at 2, https://boec.
az.gov/sites/default/files/documents/files/Commutation%20Application%202017%20Rev%20May%20
2017.pdf and Ariz. Board of Executive Clemency, Pardon Application, at 1, accessed at https://boec.
az.gov/sites/default/files/documents/files/2017%20Pardon%20Application.pdf.
49

50

Compare Md. Code Ann., Corr. Servs. § 7-309(b) with Md. Code Regs. § 12.02.09.04.

51

Mich. Comp. Laws § 791.235 (10) (2016).

52

Ga. Code. Ann. § 42-9-43(b) (1) (B).

53

Ga. Comp. R. & Regs. 475-3-.10 (1) (a).

54

Associated Press, High Costs, Not Human Rights, Forces Georgia to Release Its Sickest Prisoners, Prison
Legal News, Aug. 23, 2016, https://www.prisonlegalnews.org/news/2016/aug/23/high-costs-not-humanrights-forces-georgia-release-its-sickest-prisoners/.
55

24

Rebecca Silber et al., Aging Out: Using Compassionate Release to Address the Growth of Aging and Infirm
Prison Populations 9 (Dec. 2017), https://storage.googleapis.com/vera-web-assets/downloads/Publications/compassionate-release-aging-infirm-prison-populations/legacy_downloads/Using-CompassionateRelease-to-Address-the-Growth-of-Aging-and-Infirm-Prison-Populations%E2%80%94Full-Report.pdf.

Notes
56

Brie Williams et al., supra note 23, at 6.

57

Id.

58

Ohio Rev. Code § 2967.05.

59

Ohio Dep’t of Rehabilitation and Correction (DRC) R. 66-ILL-01§ VI.A. The Ohio statute governing
Release as if on Parole does not require this extra step.
60

Ohio Rev. Code § 2929.20 (N).

61

Ohio DRC Rule 66-ILL-01 § VI.

62

Wash. Rev. Code § 9.94A.728 (1) (c); State of Washington Department of Corrections Policy
350.270-Extraordinary Medical Placement.
63

State of Washington Department of Corrections Policy 350.270 §§ III.A.1 - 4.

64

Id.

65

Id. at § V.A.

66

Kan. Stat. Ann. § 22-3729 (a) (2); Kansas Department of Corrections, Internal Management Policies
and Procedures 11-110-Application for Release of Functionally Incapacitated Inmates or Release Pending
Imminent Death (2011).
67

Id.

68

Adam Stewart, Compassionate release: A law allowed an inmate with cancer to spend last days with family, Hutchinson News, Jul. 20, 2016, http://www.hutchnews.com/5ba306c5-b6ea-5a71-9a3d-c679650cf3e4.
html.
69

Ala. Code §§ 14-14-5 (a).

70

New Mexico Corrections Department Policy 050400, Parole of Geriatric, Permanently Incapacitated, or
Terminally Ill Inmates (2017).
71

N.C. Dep’t of Public Safety/Prisons, Policy and Procedure, Chapter C, § .2104 (a).

72

Cal. Penal Code § 3550 (c); Cal. Code Regs. tit. 15, §§ 3559.1 (b) (1) and 3559.2 (a).

73

Conn. Gen. Stat. § 54-131e.

74

N.C. Gen. Stat. § 15A-1369.3 (a); North Carolina Department of Public Safety/Prisons, Policy and Procedure, Chapter C, § .2104 (b) (2).
75
76

Idaho Department of Correction Standard Operating Procedure 324.02.01.002, § 3.
Cal. Penal Code §§ 1170 (e) (4) and (5).

77

Tex. Gov’t Code Ann. § 508.146 (a) (1) (A).

78

Cal. Penal Code § 3055 (a). While we appreciate the clarity, the 25-year minimum strikes us as extreme.

79

Va. Code Ann. § 53.1-40.01; Virginia Department of Corrections Operating Procedure 820.2, §§
VI.A.1.a - b.
80

Hawaii Dep’t of Public Safety, Corrections Administration Policy and Procedures 10.1G.11 § 3.

81

Wyo. Stat. Ann. § 7-13-424 (a) (i).

82

Or. Admin. R. 255-040-0028 (1) (a) - (d).

83

R.I. Gen. Laws § 13-8.1-2.

84

Hawaii Dep’t of Public Safety, Corrections Administration Policy and Procedures 10.1G.11, § 3.

85

Ohio Rev. Code § 2929.20 (A) (5).

25

Notes
86

S.C. Code Ann. § 24-21-715 (A) (3).

87

House Bill 1109, § 1 (1), as signed by Governor Dennis Daugaard on March 21, 2018, http://sdlegislature.gov/docs/legsession/2018/Bills/HB1109ENR.pdf.
88

D.C. Code § 24-468 (b) (1) (A).

89

Vt. Stat. Ann. tit. 28, § 502a (d).

90

We are not endorsing the use of predictive prognoses, especially in light of concerns about accuracy
that may prevent clinicians from certifying that a person will die within a certain length of time. That
said, if they exist, it strikes us that longer rather than shorter time frames give the process time to play
out.
91

Cal. Penal Code §§ 3550 (c) and (d); Cal Code Regs. tit.15 §§ 3359.1 and .2.

92

Minn. Dep’t of Corrections Policy 203.200.

93

Id.

94

Minn. Dep’t of Corrections, 2016 Probation Survey 39 (April 2017), https://mn.gov/doc/data- publications/research/publications/publications-list.jsp?id=1089-297101.
94

Alaska Admin. Code tit. 22, § 20.610 (b).

96

Arkansas Parole Board Policy Manual § 4.7.

97

R.I. Gen. Laws § 13-8.1-4 (i) (3).

98

Minn. Dep’t of Corrections Policy 203.200, § C.

99

N.C. Dep’t of Public Safety/Prisons, Policy and Procedure, Chapter C, §§ .2104 (i) and (j).

100

N.C. Dep’t of Public Safety/Community Corrections, Policy and Procedures, Chapter E, § .0903.

101

N.Y. Dep’t of Corrections and Community Supervision Directive 4304, § III.F.

102

Id. at § II.G.

103

Alaska Admin. Code tit. 22, § § 20.630 (a) and (b).

104

Id. at § 20.635.

105

R.I. Gen’l Laws § 13-8.1-4 (h). However, it is not clear if the prisoner can appeal if a material change
occurs later.
106

Del. Code Ann. tit. 11, § 4217 (d) (3).

107

N.M. Stat. § 31-21-25.1-B.

108

New York State Department of Corrections and Community Supervision, Medical Parole 2014, http://
www.doccs.ny.gov/Research/Reports/2015/Medical_Parole_Report_2014.pdf.
109

26

Mass. Gen. Laws ch. 127, § 119A (i).

Compassionate
Release
State by State

27

Alabama

Medical Parole

Medical Furlough

Alaska

Special
Medical Parole

4

4
(12 months or less to live)

4
(60+)

4

4
(12 months or less to live)

4
(55+)

4

4
4
(60+ served at
Least 10 years)

Discretionary Parole
Based on Age

Arizona

Executive Clemency
Due to Imminent
Danger of Death
Compassionate
Leave/Furlough

Arkansas

California

4
(3-6 months to live)

4

4

Medical Parole

4

4
(2 years left to live)

Early Release
to Home Detention

4

4
(2 years left to live)

Executive Clemency
Due to Life Threatening
Medical Condition

4

Medical Parole

4

4
(6 months or less to live)

Recall of Sentence

4
(60+/served at
Least 25 years)

Elderly Parole

Colorado

28

Special Needs
Parole

4

4

4
(55+)

Connecticut

Medical Parole

4

Compassionate
Parole Release

4

Nursing Home
Release

4

4
(6 months or less to live)

Sentence Modification
Due to Illness of Infirmity

4

Medical Parole
(Old-Law Prisoners Only)

4

Medical and Geriatric
Suspension of Sentence

4

4
(6 months or less to live)

4
(65+)

Medical Geriatric
Parole (Old-Law
Prisoners Only)

4

4
(6 months or less to live)

4
(65+)

Florida

Conditional Medical
Release

4

4

Georgia

Medical Reprieve

4

4

Parole Due to Disability
Or Advanced Age

4

Hawaii

Medical Release

4

4

Idaho

Medical Parole

4

4

Illinois

Executive Clemency
for Serious
Medical Conditions

4

4

Indiana

Special Medical Clemency

4

4

Delaware

District of
Columbia

Temporary Leave

4

4
(62+)
4

4

29

Iowa

No formal compassionate
release policies

Kansas

Functional
Incapacitation Release

4

4
(30 days or less to live)

Terminal Medical Release
Kentucky

Early Medical
Consideration

4

4
(1 year or less to live)

Lousiana

Medical Parole

4

4
(1 year or less to live)

Compassionate Release

4

4
(60 days or less to live)

Medical Treatment
Furlough

4
4
(45+/served at least 25;
60+/served at least 10)

Parole Based on Age

Maine

Supervised
Community
Confinement

4

Maryland

Medical Parole

4

4

Geriatric Parole
(Limited to Specific
Prisoners)
Massachusetts

Michigan

Minnesota

30

4

4
(60+/served
at least 15)

Medical Parole

4

4
(18 months or less to live)

Executive Clemency
Medical Release

4

4

Medical Parole

4

Executive Clemency
Due to Deteriorating
Terminal Medical
Condition

4

4

Conditional Medical
Release

4

4
(12 months or less to live)

Mississippi

Conditional Medical
Release

4

4
4
(60+/served
at least 10 years)

Parole Based on
Advanced Age
Missouri

Medical Parole

4

Executive Clemency/
Commutation Due to
Illness or Age

4
(6 months or less to live)

4

4

4

Montana

Medical Parole

4

4
(6 months or less to live)

Nebraska

Medical Parole

4

4

Nevada

Residential Confinement
Due to Physical
Incapacitation/Ill Health

4

4
(12 months or less to live)

New
Hampshire

Medical Parole

4

4

New
Jersey

Medical Parole

4

4
(6 months or less to live)

New
Mexico

Medical and
Geriatric Parole

4

4
(6 months or less to live)

New York

Medical Parole

4

4

North
Carolina

Medical Release

4

4
(6 months or less to live)

Extension of the Limits
of Confinement

4

4
(6 months or less to live)

North
Dakota

Medical Parole

4

4

Ohio

Judicial Release

4

4
(12 months or less to live
OR death imminent)

Release as if on Parole

4

4
(12 months or less to live
OR death imminent)

4
(65+)

4
(65+)

31

Ohio

Medical Release
(Old-Law Prisoners Only)

4

4
(12 months or less to live
OR death imminent)

Oklahoma

Medical Parole

4

4
4
(60+/served at least 10
years or 1/3 of sentence)

Parole Based on Age

Oregon

Early Medical Release

4

4

Pennsylvania

Deferment of Sentence
Due to Serious or
Terminal Illness

4

4
(less than year to live)

Rhode
Island

Medical Parole

4

4
(18 months or less to live)

South
Carolina

Parole for Terminally Ill,
Geriatric, or Permanently
Disabled Inmates

4

4
(2 years or less to live)

Parole for
Medical Reasons

4

Furlough/Extension of
Limits of Confinement

4

4

South
Dakota

Compassionate Parole

4

4

Tennessee

Medical Furlough

4

4

Executive Clemency Due
to Illness or Disability

4

4

Texas

Medically Recommended
Intensive Supervision

4

4
(less than 6 months
to live)

Utah

Compassionate Release

4

Medical Parole

4

32

4
(70+)

4
(1 year or less to live)

Special Parole of
Veterans for Psychiatric
Treatment

Vermont

4

4
(65+/served at least 10;
70+/served at least 30)

4
(65+)
4

4

Vermont

Medical Furlough

Virginia

Executive Medical
Clemency
(Medical Pardon)

4

4
4
(10-12 months or less to
live OR death Imminent)
4
(60+/served at least 10;
65+/served at least 5)

Geriatric
Conditional Release

Washington

Extraordinary Medical
Placement

4

4

West
Virginia

Executive Clemency
Due to Life-Threatening
Medical Condition

4

4

Medical Respite

4

4

Sentence Modification
Due to Extraordinary
Health Condition

4

4
(60+/served at least 10;
65+/served at least 5)

Parole Due to
Extraordinary
Circumstances
(Old-Law Prisoners)

4

4

Wisconsin

Wyoming

Medical Parole

4

4
(12 months or less to live)

4

4

33

34

35

Families Against Mandatory Minimums
1100 H Street, NW, Suite 1000
Washington, D.C., 20005
P: 202.822.6700
www.famm.org
@fammfoundation
facebook.com/FAMMFoundation
@fammfoundation

36

 

 

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