For Seriously Ill Prisoners, Consider Evidence-Based Compassionate Release Policies

Post Date: February 9, 2017

Originally seen in Health Affairs Blog.

On January 5, 2017, then-President Obama published a commentary in the Harvard Law Review outlining the rationale behind his administration’s efforts to advance criminal justice reform, including his commuting the sentences of—or granting clemency to—more than 1,000 prisoners in recent years. The Obama administration’s clemency initiative worked to both restore fairness to the criminal justice process and advance a pragmatic reconsideration of who is in our nation’s prisons and how long they need to be there to serve the public interest. However, one key avenue for clemency that has health at its core—compassionate release—went unmentioned in the President’s text and remains underutilized at both the federal and state levels.

Mass incarceration takes a grave toll on individual and public health in communities across the country. Unnecessary incarceration also wastes taxpayer dollars. That’s why criminal justice reform is, broadly speaking, a bipartisan issue: neither Democrats nor Republicans want the United States to continue spending $80 billion per year on incarceration. Compassionate release policies (sometimes termed early medical release or medical parole) exist in nearly every state. Designed to allow some prisoners with life-limiting or serious illness to die outside of prison, compassionate release policies can be critical tools in reducing unnecessary incarceration — if they are rooted in evidence-based medical knowledge. But they rarely are.

Last year, the U.S. Sentencing Commission, a bipartisan agency of the judicial branch, began to address these longstanding deficiencies by creating new eligibility guidelines for use by federal judges in compassionate release cases advanced to the courts by the Bureau of Prisons. Based on recommendations from medical and policy experts, including one of the authors of this piece, these changes brought judicial guidelines for evaluating compassionate release applications into line with current medical knowledge in key areas of palliative care (such as prognosis) and geriatrics (such as the cognitive and functional trajectories of older adults with serious illness). These judicial guidelines do not directly bear on Bureau of Prisons policy or practice. But in issuing them, the Sentencing Commission took the extraordinary step of calling on the Bureau of Prisons to increase the number of individuals referred to the courts for compassionate release. The appointment of a new Attorney General leaves the future application of federal compassionate release policies uncertain. However, if faithfully applied in federal prisons and replicated by state correctional systems, well-designed compassionate release guidelines rooted in medical evidence have the potential to reduce soaring prison costs and severe prison overcrowding—challenges faced by facilities throughout the nation—without unduly undermining public safety.

Compassionate Release Is About Far More Than Compassion

There are powerful moral arguments for releasing some prisoners of very advanced age or with serious life-limiting illness. But compassionate release also makes sense from an economic and a public safety perspective.

Due to the growing numbers of older prisoners, taxpayers are shouldering rapidly increasing prison costs related to the care of chronically or seriously ill prisoners, even as evidence shows that incarcerating high numbers of older men and women yields minimal public safety benefit. Age is a powerful predictor of reduced recidivism. For prisoners who meet medical eligibility requirements for compassionate release, recidivism rates are even lower. In fact, according to Department of Justice estimates, the recidivism rate for men and women granted compassionate release is just 3.5 percent, compared with 41 percent for the general prison population. This has particular importance today, as the U.S. prison population is aging rapidly: From 2009 to 2014, the most recent year for which data is available, the number of prisoners age 55 or older doubled, while the overall prison population declined by 3 percent. At the same time, older prisoners generate, on average, three to nine times the cost of younger prisoners.

Compassionate release is the primary mechanism for transitioning select individuals from the growing number of prisoners with profound frailty, cognitive impairment, and/or serious life-limiting illnesses back to the community where they can receive more cost-effective and appropriate health care while posing little—and often no—threat to public safety. Many individuals who are granted compassionate release may continue to receive health care from taxpayer-funded programs, such as Medicaid. However, community-based health care systems that provide care to far larger numbers of individuals with serious illness are generally more cost-efficient and suitable than prison-based systems. This means expanded compassionate release policies would likely lead to lower health care costs not just for prison systems but for taxpayers overall. Despite this, and a federal prison system that is at 128 percent of capacity, the federal Bureau of Prisons historically has utilized compassionate release only rarely. Between 2006 and 2011, the Bureau’s compassionate release program released an average of just 24 individuals per year from over 200,000 in federal prisons. A 2013 report by the Office of the Inspector General in the U.S. Department of Justice found that the Bureau of Prisons lacked “clear standards on when compassionate release is warranted.” As a result, aging or terminally ill prisoners were often denied compassionate release even if they posed little threat to public safety, had served most of their sentence, and imposed high costs on prison health care systems.

To illustrate this dysfunction, in 2006 a man incarcerated in a federal prison in a “near vegetative state” following a “massive stroke” was denied compassionate release. Bedridden and unconscious, this federal prisoner posed no threat to public safety. Bureau of Prisons staff fed him through a feeding tube, administered toileting and bathing, and repositioned his body every two hours. At the time, the Bureau required a “terminal” diagnosis for compassionate release, making the man ineligible because his life expectancy was described instead as “indeterminate.” As of the 2013 Inspector General’s report, the prisoner remained incarcerated though he was paralyzed on his right side, unable to speak, and required “total assistance with his activities of daily living.” This case—and others detailed in the popular press—illustrates the critical need for medical leadership in the design and implementation of compassionate release policies to ensure the appropriate application of medical evidence in these complex cases.

Towards An Evidence-Based Approach To Early Release Policies With Medicine At Their Core

The U.S. Sentencing Commission’s updated guidelines do just that: they bring guidelines to federal judges considering motions for compassionate release into line with current medical knowledge and create an opportunity for the Department of Justice to expand its use of compassionate release within the Bureau of Prisons. In particular, three key health-focused reforms, grounded in medical research, represent model policy components that the Bureau of Prisons should apply and that state departments of corrections should seek to replicate.

First, unlike common practice in the Bureau of Prisons, the new eligibility guidelines for federal judges do not require a short-term “terminal” prognosis. While many compassionate release policies mandate a predictable terminal diagnosis within a set period of time, often between six and 18 months, this shift acknowledges the clinical reality—widely understood by medical professionals—that prognosis is an inexact science. Studies have shown that our ability to accurately forecast the precise date of death—beyond a few hours or days—is significantly limited. This uncertainty often makes physicians reluctant to give patients a short-term “terminal” prognosis, and evidence shows that physicians who do provide a prognosis are far more likely to over-estimate rather than underestimate prognosis — a serious problem for compassionate release policies that require a short-term prognosis as a core eligibility criterion. This over-reliance on short-term prognosis in compassionate release policies—common at the state level—means that individuals with life-limiting serious medical conditions or with profound cognitive or functional impairment may die without ever meeting the medical criteria required for a court to evaluate their appropriateness for compassionate release because their physician cannot confidently predict the amount of time they have left to live.

Second, in the interest of reducing unnecessarily long incarcerations, the new guidelines explicitly allow for the release of individuals who suffer from non-terminal but “debilitating” conditions. Many diseases—such as advanced liver, heart, and lung disease, as well as dementia—can cause severe disability long before they cause death. The new “non-terminal illness” eligibility category encompasses individuals who are suffering from a serious condition, including a serious functional or cognitive impairment, or experiencing deteriorating health because of the aging process that “substantially diminishes their ability to provide self-care within a correctional facility.” These patients, previously excluded from consideration for compassionate release from federal prisons (and still excluded in many jurisdictions), are often the very patients who will require the most long-term, costly care in a medical state that precludes their posing a public safety threat and, sometimes, as in the case of profound cognitive impairment, leaves them unable even to understand their ongoing incarceration.

Third, the revised guidelines for federal judges expand eligibility to apply for compassionate release to older prisoners with deteriorating health who have served 10 years or 75 percent of their sentence, whichever is less. Previous Federal Bureau of Prisons policy required that these prisoners serve at least 10 years to be eligible for early release under the misguided argument that the court would consider a defendant’s health status and potential health trajectory at the time of sentencing. However, this argument is out of line with medical evidence from the field of geriatrics, which demonstrates that among older adults, health and functional declines are common, difficult to predict, and often precipitous. Individuals who appeared in good health at sentencing may develop serious functional or cognitive impairment in far fewer than 10 years. In fact, this rapid health deterioration can stem from incarceration: for example, older adults with cognitive impairment are known to experience rapid decline when forced to adjust to a foreign living environment. Others may experience deconditioning and subsequent functional decline and/or catastrophic falls if their access to regular activity is restricted or if they significantly limit their exercise, for example, due to fears of leaving their cell. In fact, medically eligible older adults serving a sentence shorter than 10 years are among the most promising population for compassionate release as they generate a disproportionate share of costs but likely have criminal histories suggestive of a low public safety risk.

Advancing Evidence-Based Compassionate Release In A Changing Political Landscape

It is now up to the Bureau of Prisons to implement these new guidelines, a choice that now falls under the purview of the Trump administration. But compassionate release—which may be more appropriately termed “evidence-based, cost-conscious medical release”—exemplifies the bipartisan rationale that underpins so much of the criminal justice reform in the U.S. If implemented by the Department of Justice, these common-sense improvements to federal compassionate release guidelines will not just have an impact on thousands of Americans experiencing serious illness in federal prisons but they will also significantly reduce federal prison spending while honoring our criminal justice system’s central commitment to ensuring public safety.

Eighty-five percent of individuals incarcerated in U.S. prisons are under the jurisdiction of state authorities, outside the purview of the federal Bureau of Prisons. Forty-five states and the District of Columbia possess some form of compassionate release mechanism, yet few state policies account for the most current medical evidence related to serious illness, health trajectories in the serious ill and aging, and prognosis. Moreover, many state compassionate release processes are hindered by procedural guidelines that are either unclear or run counter to the central role that medicine should play in this process. This occurs, for example, when correctional health providers are not adequately trained in compassionate release policy or are insufficiently empowered to identify and refer patients whose medically based release—pending approval by the courts—may better serve the patient, the facility, and taxpayers.

Expanding compassionate release isn’t just the right thing to do: It’s the smart thing to do. The Trump administration could continue the Sentencing Commission’s efforts to maximize the effectiveness of this tool in the interest of addressing mass incarceration and reducing federal spending. The states could also look to the Sentencing Commission guidelines as a model with which to evaluate the effectiveness of their own compassionate release programs. At the same time, medical leaders across the country should see in these new guidelines an opportunity to engage correctional systems in their state on the development of appropriately health-informed criminal justice policies.

Author’s Note

Dr. Williams provided testimony to the U.S. Sentencing Commission in advance of their revisions to their compassionate release guidelines. She has also consulted with a number of states on their compassionate release policies.