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 firstname.lastname@example.org.
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