Medical Parole-related Petitions in U.s. Courts: Support for Reforming Compassionate Release

• Publication year: 2022

54 Creighton L. Rev. 173. MEDICAL PAROLE-RELATED PETITIONS IN U.S. COURTS: SUPPORT FOR REFORMING COMPASSIONATE RELEASE

MEDICAL PAROLE-RELATED PETITIONSIN U.S. COURTS: SUPPORT FOR REFORMING COMPASSIONATE RELEASE

DR. SARAH L. COOPER ^[D1]

CORY BERNARD ^[D2]

I. PRISONER HEALTH(CARE), COMPASSIONATE RELEASE, AND PAROLE .......................... 176

II. STUDY RATIONALE AND DESIGN ................ 179

III. RESEARCH FINDINGS ............................ 181

A. ISSUES RAISED IN MEDICAL PAROLE-RELATED PETITIONS ....................................... 181

B. RESOLUTION OF PETITIONS AND MAPPING TO EXISTING CONCERNS ABOUT COMPASSIONATE RELEASE ........................................ 182

1. Eligibility and Exclusions .................... 182

2. Releasing Authorities ........................ 187

3. Processes .................................... 191

4. Support for Petitioners ....................... 193

IV. CONCLUSION ..................................... 198

Compassionate release procedures typically allow prisoners to seek early release because of serious terminal, non-terminal, and/or age-related health issues. ^[1] In addition to a federal procedure, ^[2] nearly every U.S. state has at least one compassionate release procedure. ^[3] Across U.S. states, parole emerges as the most common method of compassionate release, ^[4] often labeled "medical parole." ^[5] Medical parole procedures can vary in form. Some expressly exclude categories of prisoners based on their conviction type; ^[6] others determine eligibility solely on age. ^[7] Some include terminal and nonterminal illnesses as eligible conditions, ^[8] whereas others apply solely to terminally ill prisoners with or without a defined life expectancy. ^[9] Third parties (such as relatives and lawyers) are expressly allowed to petition on behalf of prisoners in some procedures, ^[10] and some procedures include express time-frames to guide petitioners through relevant processes. ^[11] Generally, decision-makers (i.e., parole board members) must evaluate medical evidence, determine a prisoner's risk to public safety, and-if appropriate-set release conditions. ^[12]

Numerous studies have investigated compassionate release procedures. ^[13] These studies have identified various limitations in practices, including the absence of both comprehensive reporting and tracking systems and internal appeals processes ^[14] -findings that specifically motivate this paper. These absences contribute to there being limited knowledge about what issues petitioners would raise on appeal, how competent authorities would resolve those issues, and whether the approaches taken by either party would map to existing concerns about compassionate release. Thus, it is not apparent what medical parole-related issues petitioners or appellate authorities would deem fair or unfair. This lack of knowledge frustrates evaluation of existing practices and the implementation of evidence-informed reform, including recommendations made for model medical parole procedures.

One way to address this dearth of knowledge is to examine medical parole-related petitions in U.S. courts. This paper does just that. To set the scene, Part I summarizes the interplay of prisoner health(care), compassionate release, and the parole system. Part II outlines the rationale and design of our study, which sought to investigate: (1) what issues petitioners raise in medical parole-related petitions to U.S. courts; (2) how courts resolve such petitions; and (3) whether the approaches of petitioners and courts highlight existing concerns about compassionate release. Part III reports our findings. In sum, case law reveals that petitioners have raised issues concerning frustrated access to the medical parole process, the denial of medical parole, irregularities in medical parole processes, improper application of eligibility and exclusion criteria, and the provision of inadequate medical care in prison. Judges generally dismiss appeals, relying on the high standards of proof required to prove eligibility or improper parole-board decision-making; the discretionary nature of parole; standards of review that are highly deferential to parole authorities; and a lack of properly legally postured claims. Case law also reveals a propensity for prisoners to act pro se. Overall, case law can be mapped to four thematic areas where concerns about compassionate release practices already exist, namely (1) eligibility and exclusions, (2) releasing authorities, (3) processes, and (4) support for petitioners. The authors conclude these findings further the call for reforming compassionate release to better serve both the interests of wider society and the United States' large, ageing, and medically compromised prison population.

I. PRISONER HEALTH(CARE), COMPASSIONATE RELEASE, AND PAROLE

America has a large and ageing prison population, imprisoning approximately 2.3 million adults ^[15] with one third of prisoners expected to be aged fifty-five years or older by 2030. ^[16] High incarceration rates (and the increased medical needs of ageing prisoners) have drawn greater attention ^[17] to the interplays of incarceration and health(care). Following Estelle v. Gamble, ^[18] federal law provides that-because a prisoner must rely on the authorities for treatment- the state has an "obligation to provide [adequate] medical care for those whom it is punishing by incarceration." ^[19] A "deliberate indifference" ^[20] to a prisoner's serious illness or injury violates the Eighth Amendment's prohibition against cruel and unusual punishment, although inadvertent or negligent failures to provide adequate care do not. ^[21] There has been particular focus on how states deliver adequate healthcare to large prison populations, which are known to suffer from higher rates of disease than the general population. ^[22] Ultimately, corrections facilities are required to engage in the complicated and expensive task of "medical management" ^[23] of increasing numbers of prisoners with complex medical needs who need compassion. ^[24] However, despite corrections institutions serving an important role in promoting prisoner health(care), ^[25] they "too often serve as ill-equipped treatment providers of last resort for medically underserved, marginalized people." ^[26]

This situation urges stakeholders to consider what circumstances, if any, justify early release on health grounds. Despite the many distractions ^[27] that accompany this question, compassionate release is a staple of the U.S. criminal justice system. The federal government ^[28] and all but one state clearly provide for compassionate release, ^[29] and there are various examples of political will to broaden eligibility. For instance, the First Step Act of 2018 ^[30] broadened compassionate release for federal prisoners, allowing applications in a relatively wide set of circumstances. ^[31] The bill passed the House of Representatives (358-36) ^[32] and the Senate (87-12) ^[33] by a landslide. States have seen efforts to widen compassionate release procedures too, including through establishing medical parole. ^[34]

Although most states have restricted or eliminated parole, ^[35] the parole system emerges as the most common method of compassionate release across U.S. states, ^[36] with specific procedures often labelled "medical parole." ^[37] Described as "an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy," ^[38] and with roots in rehabilitative justice, ^[39] parole fits comfortably with the concept of compassion. In the United States, parole takes two forms: mandatory parole and discretionary parole. ^[40] Medical parole is generally an example of the latter, which gives a parole board-a group of ten or fewer individuals, usually political appointees ^[41] -discretion in deciding whether to release the prisoner and what post-release restrictions to impose. ^[42] Experienced in reviewing evidence, evaluating cases, balancing equities, drawing conclusions, and imposing conditions, parole boards are viewed as competent authorities to make compassionate release decisions, ^[43] although broad-brush and idiosyncratic decision-making has been noted as a consequence of institutional strain. ^[44]

Empowered to evaluate public safety and decide on early release, parole boards "occupy an influential, if little recognized, niche across the correctional landscape . . . ." ^[45] The use of parole to support implementation of administrative policies aimed at reducing prison overcrowding and violence demonstrates this. ^[46] Indeed, medical parole statutes arose as a means to reduce correctional costs, ^[47] with some procedures specifically established in the 1980s to address the significant number of prisoners with HIV/AIDS. ^[48] Notably, at the time of writing, there are calls to use compassionate release as a vehicle for alleviating pressures associated with the COVID-19 pandemic. ^[49]

II. STUDY RATIONALE AND DESIGN

There is a growing research base about compassionate release, ^[50] including studies focused on identifying and analyzing existing procedures. ^[51] These studies have raised various concerns about compassionate release procedures, including a lack of appeal, reporting, and tracking systems; noting such absences can frustrate the evaluation of procedures. A 1994 study commented on a lack of the right...