Compassionate release Part I: When compassion comes too late

When President Barack Obama first launched his prison reform efforts some months back, he did so with the commutation of dozens of prisoners who, in large part, had fallen victim to the overly punitive measures required of mandatory minimum sentencing laws. He and a variety of other legislators on both sides of the aisle have been pushing to further reduce the prison population through the adoption of alternative sentencing methods as well as a reformation of the sentencing system.

The over-crowding is due to a variety of complex, but not complicated, factors, each contributing to institutions that are splitting at the seams, and a lack of available resources to fund programs that will assist in prisoner re-entry and re-integration, but also reduce recidivism. But there’s one element in that puzzle that’s rarely discussed: the failure of existing compassionate release programs. “Compassionate release” is generally understood to be the process whereby prisoners may be released from prison (usually conditionally) when extenuating circumstances (not foreseen at the time of sentencing) come into play, of a medical or humanitarian nature.

There are several key elements to the compassionate release discussion that I want to cover in the coming weeks: the terminally ill and the elderly. I’m starting this week with the first issue, because it’s the most obvious candidate as relate to compassionate release programs. But as we well know, in the world of prison bureaucracy, common-sense is rarely a motivating factor for policy.

Compassionate release also takes different forms, taking into account concerns for the safety and emotional well-being of victims as well, and may be restricted to home or hospice confinement. Guidelines introduced in 2012 allow for federally-incarcerated prisoners to be released 18 (rather than 12) months prior to their anticipated death, and also no longer require complete incapacitation. But when families are frequently are the ones that will have to petition for release which, in those cases where deterioration occurs rapidly, means that prisoners may be too far gone to even be transported, especially if they are unable to visit frequently, this may mean that release comes far too late for appropriate transport and/or lucid time with family members.  Additionally, in many cases, families are never informed of a prisoner’s medical state, even when it becomes critical.

Yet such releases are rarely granted. But why? Taking the guiding principles behind imprisonment at their most base, we keep people in prison either to rehabilitate them or to punish them. So what purpose does it serve to keep them incarcerated when neither of these goals can be achieved? Any opportunity for “rehabilitation” has passed and they will pose no threat to the public at large, and the concept of punishment in that context is rendered meaningless when their bodies are already enduring tortures worse than any prison could mete out upon them.

Being terminally in prison is quite likely the most cruel of all imprisonments. For those that have been rendered virtually incapacitated –they face duel imprisonment. A humiliation that comes from the fact that they are wasting away, and yet are frequently handcuffed tot eh bed with a bracelet that must be cinched tighter and tighter each day as their skin sags with gravity to reveal bone. This is bone that chafes and peels and bleeds as they face day after day pinioned to a bed. This is what we’re really talking about when we talk about compassionate release for the terminally ill. This it the nightmare future that I’m thinking about when I think of my former cellmate, Sangye Rinchen, facing the cruelty of the fatal degenerative illness, ALS.

There is also a very real consideration to be made regarding the Constitution and freedom from cruel and unusual punishment. As I mentioned in an article on palliative and hospice care in prison, inadequate diagnosis, treatment, and referrals mar the prison health care system so seriously as to render it incompatible with the mere concept of a “system.” Such insufficiencies are magnified ten-fold when it comes to pain management for the terminally ill. It is a difficult enough task in a professional setting, let alone an institutional prison setting where the health practitioners are not trained in palliative care and do not have access to many of the treatments that are central to keeping pain in check. And if you’d ever seen someone in the final stages of something like cancer, you’d know that it is amongst the most excruciating of ends—we’re not talking about pain that hopefully, if we’re lucky, we’ll only have to imagine.