The Legal Intelligencer
May 5, 2022
A Pennsylvania law that allows sick inmates to be
released from prison early is broken. Spotlight PA investigative reporter
Danielle Ohl recently highlighted the failure of compassionate release in
Pennsylvania. Spotlight PA is a collaboration of The Philadelphia Inquirer, The
Harrisburg Patriot-News, Pittsburgh Tribune Review and WITF Public Media.
Although Ohl’s investigation was published in late
March, a statistic she shared in a follow-up article on April 26, sums up the
failure of Pennsylvania’s compassionate release statute—only 33 people have
successfully petitioned to leave prison because of illness in the past 13
years. On average, a little more than two inmates released a year in a
correctional system that has more than 5,500 prisoners over 55 years of age.
A “deferment of sentence” pursuant to 42 Pa. C.S.
9777, allows an inmate’s sentencing judge to grant release from prison upon
showing that the inmate is seriously ill and facing certain death. Typically, a
decision regarding the release of an inmate serving a state sentence resides
exclusively with the Pennsylvania Parole Board. The trial court has no
authority to order the release of a state prisoner, unless a state statute
provides an exception.
There are different requirements for compassionate
release to a hospital, long-term care nursing facility or release to hospice.
Long-term care for treatment outside of a correctional facility is for inmates
having less than one year to live. Release for hospice care is reserved for
inmates facing imminent death.
A review of the law makes it clear why so few
seriously ill inmates successfully navigate the morass of requirements to be
released to die with dignity outside the prison walls. The process can be
onerous for an inmate literally near death suffering from a debilitating
disease.
In Commonwealth v. Folk, 40 A.3d 169 (Pa.
Super. 2012) the Pennsylvania Superior Court ruled that an inmate must
establish each of the seven factors listed under 42
Pa.C.S. Section 9777(a)(1)(i) through (a)(1)(vii) to be eligible for
release:
The medical needs can be more appropriately
addressed at an outside facility;
The outside facility agrees to provide necessary
medical care;
The inmate is seriously ill and will die within one
year;
There are no writs filed or detainers or court
orders requiring the inmate’s presence;
The placement does not pose an undue risk of escape
or danger to the community;
The facility will notify the department and the
court of any material changes in health;
All stakeholders are provided notice.
Each of the above seven factors must be proven to
the sentencing court by “clear and convincing proof.”
The statute also provides that release to a hospital
or long-term care nursing facility requires electronic monitoring by the
Department of Corrections. A seriously ill inmate will wear an ankle bracelet
that will be continuously monitored by correction staff.
The statute also provides for release of an inmate
for hospice care. The purpose of hospice care is to allow people nearing death
to live out their final days with dignity, purpose and comfort. The basic criteria
to receive a deferred sentence for hospice care requires an applicant be unable
to walk, with a terminal illness that will result in death in the near future.
An inmate facing imminent death, seeking hospice
care, must prove by clear and convincing proof, pursuant to 42 Pa.C.S. 9777 (a)
(2) (i) through (vi), the following:
The inmate is terminally ill, not ambulatory and
likely to die in the near future;
The licensed hospice care provider can provide the
inmate with more appropriate care;
Services will be provided by the licensed hospice
care provider at the hospice care center.
Sections (iv), (v) and (vi) are consistent with the
final three provision set forth above under Section 9777 (a) (1).
Through the “grace” of the Pennsylvania General
Assembly those inmates receiving a deferred sentence for hospice care—who have
proven that they are essentially confined to a bed, do not have to be
electronically monitored by the Pennsylvania Parole Board.
As if the statutory requirements requiring clear and
convincing medical proof are not stringent enough, the statute requires a
judge, in his or her discretion, to determine if sending an inmate to a
hospital, long term nursing facility, or hospice would create an “undue risk of
escape or a danger to the community.”
In Folk, the court changed the appellate
standard of review from an error of law standard to an abuse of discretion
standard, making it tougher to challenge a denial. As if a terminally ill
inmate, facing imminent death had time for appellate review.
Why is it important that Pennsylvania take another
look at compassionate release in an effort to expand its use? According to
FAMM, a national nonpartisan advocacy organization that promotes fair and
effective criminal justice policies, the proportion of prisoners 55 years old
and older increased 400% between 2003 and 2013. By 2030 prisons will house more
than 400,000 individuals who will be 55 and older, making up nearly one-third
of the population.
Every state—with the exception of Iowa—has some form
of compassionate release. Unfortunately, a number of states, like Pennsylvania,
have made it virtually impossible for seriously ill inmates to get out of
prison.
In neighboring Ohio, seriously ill inmates have
seemingly two opportunities for the early release. Judicial release for
terminally ill prisoners with less than 12 months to live and administrative
release for prisoners facing imminent death—less than six months to live.
However, according to FAMM, those facing imminent death cannot apply for
administrative release until they have exhausted the judicial release process.
What is the likelihood that an inmate facing
imminent death will survive long enough to exhaust a judicial request and
manage the bureaucratic red tape involved in processing a request for
administrative release? In reality, Ohio’s compassionate release process seems,
not unlike Pennsylvania’s, a cruel hoax.
In Kansas to be eligible for terminal medical
release, Kan. Stat. Ann. Section 22-3729 (a) (2) a prisoner’s death must
be expected within 30 days. Is there anything compassionate about requiring a
terminally ill patient, with presumably less than 30 days to live, to seek
release from prison?
According to FAMM, 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. If an inmate has
eight years remaining on her sentence she is not entitled to die with dignity.
As it exits, there is nothing compassionate about
Pennsylvania’s, or many other states for that matter, so-called “compassionate
release” law. A statute that is more accessible to seriously ill inmates would
do two important things. One, provide dignity to a human being, albeit a flawed
human being, the comfort and dignity to die with family and outside the prison
walls, and two, save taxpayer dollars that are used to treat and care for
terminally ill prisoners left to die behind bars.
Matthew T. Mangino is of counsel with
Luxenberg, Garbett, Kelly and George in New Castle, Pennsylvania. He is the
author of “The Executioner’s Toll.” You can follow him on Twitter
@MatthewTMangino or contact him at mmangino@lgkg.com.
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