THE ADOPTION AND IMPLEMENTATION OF COMPASSIONATE RELEASE FOR TERMINALLY ILL AND ELDERLY INMATES: COMPARING THE UNITED STATES' AND CHINA'S GUIDELINES FOR MEDICAL PAROLE PETITIONS.

• Author: Albanese, Tiffany

1. INTRODUCTION

   Many U.S. states have programs allowing inmates early release from prison due to a medical illness, known as compassionate release or medical parole. (1) While compassionate release has been adopted in many states, not all states utilize compassionate release programs for terminally ill inmates seeking early release from prison, leaving the program with little to no purpose. (2) Abroad, China has adopted national compassionate release guidelines, interchangeably known as medical parole, for medically ill or elderly inmates serving extended sentences. (3) Both the number of deaths in U.S. prisons and the amount of money spent keeping terminally ill individuals behind bars are rising. (4) Compassionate release created a way out for terminally ill and elderly inmates, but the lengthy application process is not promising and needs to be changed. (5) In order to come to a solution, the United States needs to determine national guidelines for what compassion truly means for inmates seeking early release from the Board of Prisons (BOP) due to a medical condition or old age. (6)

   Using Massachusetts as a case study, this Note examines China's adopted national guidelines for compassionate release for inmates who are terminally ill or elderly and evaluates the current requirements for compassionate release in China and the United States. (7) Part II will explore the history and function of the parole system across the United States and China. (8) Part III will examine the similarities and differences of compassionate release programs in the two countries. (9) Part IV will critique the United States for not fully adopting and implementing strict national guidelines for reviewing compassionate release petitions, specifically addressing Massachusetts' recent enactment of a compassionate release program. (10) Finally, Part V will conclude that there should be universal guidelines in every state for reviewing compassionate release petitions, so that medical parole programs can serve their intended purpose. (11)

2. HISTORY

   1. The Traditional Function of Parole in the United States

      Parole is a system of early, conditional release from prison followed by a supervision period that rose to popularity in the United States in the nineteenth century. (12) The main purpose of parole is to reintegrate prisoners back into the community "by allowing them to serve a portion of their sentences outside prison." (13) Because parole is a conditional release period, a parolee's release from prison is subject to conditions set by the parole board, and is supervised by a parole officer. (14) If a parolee fails to abide by the conditions of release, he or she can be returned to prison to serve the remainder of the sentence. (15)

      Parole is important for reducing recidivism and providing rehabilitation for inmates returning to society, as well as for cutting prison costs. (16) Recidivism is a term for when a prisoner "falls back into the criminal behavior he was involved in before going to prison." (17) According to the Bureau of Justice "25[%] of released inmates are rearrested in the first six months and 40[%] within the first year" of returning to society. (18) Additionally, rehabilitation is the progression of an inmate's "moral and educational development from a life of crime to a productive member of society." (19) Parole boards grant inmates parole when the board determines that rehabilitation has been achieved and recidivism rates are low. (20) When determining whether an inmate is rehabilitated, parole boards rely on an inmate accepting responsibility for his or her crime, inner remorse, and repentance. (21)

      Determinate sentencing, also known as definite sentencing, was given to most offenders until the mid-nineteenth century. (22) The development of parole in the United States is credited to an Englishman, Captain Alexander Maconochie, and an Irishman, Sir Walter Crofton. (23) In 1876, Zebulon Brockway, a prison reform penologist, created indeterminate sentences and parole release in the United States. (24)

      In 1837, Massachusetts enacted legislation authorizing parole. (25) Additional legislation was fought for in 2011 to address parole of terminally ill incarcerated individuals, but it failed to be enacted at that time. (26) The Massachusetts Parole Board developed different units over the years, including the executive clemency unit, field services, legal unit, transitional services, interstate compact, warrant and apprehension unit, victim service unit, information technology, and program unit to work with parolees. (27)

   2. History of Parole in China

      China's incarceration rates are comparable to the well-known incarceration rates in the United States. (28) China is ranked second after the United States in number of people incarcerated. (29) China utilized two different types of prisons: "reform through labor camps," and "reeducation through labor prisons." (30) Although later abolished by the Chinese government, reeducation through labor, the most popular prison type before 2013, centered on reforming inmates with study sessions, and requiring inmates to write daily thought reports. (31) China also forces inmates, who are physically capable of participating, into hard labor. (32)

      China's criminal justice system, like the United States', offers parole for adults and juveniles facing life sentences in certain circumstances. (33) In both countries, prior to the twenty-first century, juveniles could face life without parole; however, that was discouraged by national policies. (34) China abolished life imprisonment for juveniles just before the turn of the twenty-first century; the United States followed with a similar policy in 2013, when Diatchenko v. District Attorney for Suffolk District (35) was decided. (36)

      Unlike the United States' parole system, which is primarily based on individual case evaluations, China's system is slightly more uniform because of the use of a point system. (37) In the early 1980s, the point system was created to determine when the inmate will be released on parole based on their conduct in prison. (38) China suspends sentences to prisoners who have committed minor crimes, have plead guilty, or are not likely to endanger society further in order to help with their reform. (39)

      China enacted early release in 1990 for medically ill inmates, known as compassionate release or medical release. (40) Chinese political prisoners gain extensive media attention within the criminal justice system; for example, Ngawang Choephel, Jigme Sangpo, Xu Wenli, Wang Youcai, Rebiya Kadeer, and Liu Xiaobo, all of whom were greatly influenced by early parole for terminally ill prisoners. (41) Ngawang Choephel, a documentary filmmaker, producer, and director, gained national attention in China for his early release by Chinese authorities in 1995. (42) Jigme Sanpo, the longest-serving political prisoner of Tibetan ethnicity, was released on medical parole on March 31, 2002, and permitted to travel to the United States for medical treatment. (43) In 2002, the leader of the China Democracy Party, Xu Wenli, was released from Yanquing Prison in Beijing and sent to the United States for medical treatment. (44)

      Wang Youcai, a dissident of the Chinese government, was released from prison in 2004 and transported to San Francisco, California, for medical treatment. (45) Rebiya Kadeer, a female political activist, was released from prison in 2005 and ordered to Washington, D.C., to receive medical treatment. (46) Many of these inmates were released on medical parole around the time of a Chinese national celebration, a favorable time to grant medical parole for inmates. (47)

3. FACTS

   1. United States' Adoption of Compassionate Release

      Compassionate release is a matter of federal statute and has been adopted by a majority of the states. (48) Calculating a given inmate's parole eligibility date first depends on where the inmate's sentence is being served--either in a house of correction or in a state prison. (49) Although the United States Sentencing Commission has begun to address the issue of compassionate release by creating new eligibility guidelines federal judges can use to assess ill inmates, there are no universal guidelines in effect to help states evaluate inmates who may be eligible for early release if elderly or terminally ill. (50) The United States faces increased prison costs, due to older prisoners costing two to three times more than younger offenders to incarcerate. (51)

      Despite the enactment of compassionate release statutes in the United States in the early 1970s, the statutes are still rarely used by parole boards and judges. (52) State prison systems likely have similar, if not lower, rates of release. (53) Although state prisons may have lower rates of release, not all states have negative compassionate release statistics. (54) Because the number of terminally ill inmates is increasing, correctional officers across the United States are taking on the role of caring for sick inmates. (55)

      According to the Office of the Inspector General, as of 2013, approximately twenty-four inmates are granted medical parole each year across the entire United States. (56) In 2016, former Massachusetts House Speaker Salvatore F. DiMasi was released from prison--after being convicted of corruption charges and receiving eight years in prison--on the basis of medical parole becuase he battled cancer twice while in prison. (57) Unfortunately, compassionate release applications face long waits and little action in most states. (58) From August 12, 2013, to September 12, 2014, compassionate release was granted infrequently, even though inmates are qualified and suffering from terminal illnesses. (59)

   2. China's Adoption of Compassionate Release

      China's implementation of compassionate release has, and continues to be, a pivotal part of early release for prisoners. (60) Imprisoned Chinese political figures are among the...