26-i Sentencing Persons with Infectious Diseases

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

26-I. Sentencing Persons With Infectious Diseases

If you have an infectious disease and you have been indicted for a crime but not yet sentenced, you may be able to ask the judge to dismiss the indictment or decrease your sentence because of your health condition. Different states have different rules, so be sure to look at your state's statutes and cases.

If your case is in New York State and you have a terminal illness, you may:

(1) ask for lower bail,

(2) ask to be released on your own recognizance, or

(3) make a Clayton motion to have your case dismissed "in the interest of justice" (under New York Criminal Procedure Law § 210.40 and § 210.45).¹⁸¹ The court will look at the evidence of guilt, the seriousness of the offense, your character, and your criminal record.¹⁸² To support a request for dismissal, try to provide medical documentation that imprisonment would worsen your health.

If you have a terminal disease and are in prison because you violated your parole, you can request to:

(1) be returned to parole status,

(2) be released to time served or granted conditional release to probation, or

(3) have your case adjourned in contemplation of dismissal. The adjournment may be extended indefinitely, which may allow you to live your last days out of prison.

If you are facing sentencing in federal court, judges consider the sentencing guidelines on an advisory basis.¹⁸³ The court may impose a lesser sentence ("downward departure") if...