Tuesday, October 30, 2012

Release of Seriously Ill Inmates Stalls

According to a report released in January by Human Rights Watch — "Old Behind Bars: The Aging Prison Population in the United States" — the number of older inmates in prison in the United States is at an all-time high

The Pennsylvania Law Weekly
October 30,2012

According to a report released in January by Human Rights Watch — "Old Behind Bars: The Aging Prison Population in the United States" — the number of older inmates in prison in the United States is at an all-time high.

The report found that the number of state and federal prisoners age 55 or older nearly quadrupled, increasing by 282 percent between 1995 and 2010. The number of prisoners age 65 and over increased by 63 percent between 2007 and 2010, while the overall prison population grew by only 0.7 percent.

"Prisons were never designed to be geriatric facilities," Jamie Fellner, a senior adviser at Human Rights Watch and the report's author, told The Philadelphia Tribune, "yet U.S. corrections officials now operate old-age homes behind bars."

Pennsylvania is second only to Oregon in terms of caring for geriatric inmates. In 1980, there were just 370 elderly inmates in the state prison system, according to the Pennsylvania Department of Corrections. By 2010, that number had swelled to 8,462, representing more than 16 percent of all inmates.

The cost of caring for geriatric inmates is enormous. The U.S. Supreme Court has found that the U.S. Constitution guarantees prison inmates access to health care. In 1976, the Supreme Court ruled in Estelle v. Gamble, 429 U.S. 97 (1976), "deliberate indifference to a prisoner's serious illness or injury" is cruel and unusual punishment.

State prison inmates can have surgery, chemotherapy and organ transplants. Inmates also get dental and vision care. According to The Lancaster New Era, earlier this year, SCI Laurel Highlands had 74 inmates with hypertension or diabetes severe enough to require dialysis.

In 2003, Pennsylvania's Joint State Government Commission appointed an advisory committee on geriatric and seriously ill inmates. The committee issued its report in 2005.

The committee noted that some of the state's correctional facilities, notably Laurel Highlands, provided care for geriatric and seriously ill inmates. SCI Laurel Highlands, located in Somerset County, was formerly the Somerset State Mental Hospital. It was renovated and reopened in 1996 and houses long-term care, wheelchair and geriatric inmates, as well as other inmates.

The facility provides for specialized programs that meet the needs of geriatric and seriously ill inmates, including medical care for long-term illness, life skills programs, recreational activities that are individualized to meet the needs of older or physically challenged inmates and substance-abuse and mental health programs.

The advisory committee report found that the DOC had not previously tracked the costs of long-term care. However, the DOC did track those costs for 2004 so that a meaningful cost comparison could be obtained for the report. The DOC found that the annual cost per inmate receiving long-term care at SCI Laurel Highlands was $63,500, while the average cost per other inmate was approximately $30,000 (currently the cost per day is $35,243). The average cost per patient in a county nursing home was $62,000.

The committee recommended that although the DOC had the ability to care for geriatric and seriously ill inmates, releasing such inmates to private facilities or to the care of their families through a court-mandated medical release procedure or parole "would reflect both humanitarian and economic concerns."

At the time of the report, Pennsylvania had a cumbersome law on medical release, dating back to 1919. The Compassionate Release Act, 61 P.S. §81, was not very compassionate.

The Superior Court reviewed the legislative history of the act in Commonwealth v. Reefer, 816 A.2d 1136 (2003), and found that the intent of the language "modify its sentence," particularly when read together with the requirement to "recommit" the inmate upon his or her recovery, was to give the trial court the power to modify the place of sentence, not the length of sentence.

In order for an inmate to have met his or her burden under the Compassionate Release Act, he or she had to "allege that his facility lacks the resources to treat him or that its collective health is endangered by his illness" and "must go beyond quality or neglect in treatment and address the inability of the prison facility to provide adequate care."

Susan McNaughton, spokesperson for the DOC, told The Crime Report that statistics concerning compassionate release were scant, but in the past, "on average about six inmates are released from Pennsylvania state prisons annually this way."

The act was subsequently revised with the intent that old, dying prisoners would be released into the custody of family or friends — provided the DOC did not find the inmate to be a security risk.

On September 25, 2008, Governor Ed Rendell signed Act 84, replacing the nearly century-old Compassionate Release Act. Act 84 of 2008 allows judges to place primarily terminally ill state prisoners in hospitals, long-term nursing care facilities and hospice care locations.

Under the new law, a petitioner, which could include the DOC, can seek to "temporarily defer service of the sentence of confinement" and to "temporarily remove" the prisoner from DOC custody for placement in a "hospital, long-term nursing care facility, or hospice care location." Supervision with electronic monitoring may be required of some of those released.

Other jurisdictions have taken action to deal with medical release.

In 2008, the federal government launched the Elderly Offender Home Detention Pilot program, under which prisoners age 65 and over could be released into supervised house arrest. According to The Crime Report, eligibility guidelines were strict: offenders must have served at least 10 years and 75 percent of their sentence, with no eligibility for lifers or perpetrators of "crimes of violence." The impact was negligible, the total number expected to participate was 80 to 100 nationwide, out of 200,000 federal prison inmates.

Former Michigan Governor Jennifer Granholm used clemency to address medical release. She commuted sentences for 180 prisoners during her eight years in office, mostly for medical reasons and the financial burden on state taxpayers. When prisoners were released, they could apply for Medicaid, resulting in the federal government paying the medical bills.

In Texas, during 2011, 349 inmates formally sought medical release, and only 100 inmates were granted early release. There are about 155,000 inmates in Texas prisons.

The effort to deal with seriously ill inmates has had little impact. It affected 80 to 100 federal inmates, 100 inmates in Texas, 180 commutations in Michigan, and in Pennsylvania the news is even bleaker. According to the New Era, in 2011, three Laurel Highlands inmates had applied for medical release. One was denied, and the others died before a decision could be made.

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