Compassionate release
Compassionate release is a process by which inmates in criminal justice systems may be eligible for immediate early release on grounds of "particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing". Compassionate release procedures, which are also known as medical release, medical parole, medical furlough, and humanitarian parole, can be mandated by the courts or by internal corrections authorities. Unlike regular parole, compassionate release is not based on a prisoner's behaviour or sentencing, but rather on medical or humanitarian changes in the prisoner's situation.
Request process
Obtaining a compassionate release for a prison inmate is a process that varies from country to country but generally involves petitioning the warden or court to the effect that the subject is terminally ill and would benefit from obtaining aid outside of the prison system, or is otherwise eligible under the relevant law.Compassionate release is most often granted to inmates with terminal illnesses that cause life expectancies of less than six or eighteen months, depending on the jurisdiction. Other allowable causes for compassionate release may be medical but non-terminal, such as incurable debilitating mental or physical conditions that prevent inmate self-care or a combination of advanced age and irreversible age-related conditions that prevent functioning in a prison setting. Prisoners with illnesses such as Alzheimer's would be considered eligible for release.
Grounds for compassionate release may also be familial, although not all jurisdictions offer this option. Under the United States' Federal law, for example, inmates may be released to care for a minor child or debilitated spouse in the absence of other family caregivers. This is intended to be after the death or debilitation of the child's primary caregiver in the former case or the finding of permanent mental or physical disability of the spouse in the latter. While there are clear advantages to the individual in this type of release, there are many procedural obstacles to this type of petition which lead to it rarely being granted.
Arguments
Support
Arguments for the expansion of compassionate release programs generally address the benefit to terminally ill prisoners as well as cost savings to the state. Terminal illness which requires special care or treatment is a major concern for prison inmates who may be unable to access the same type or quality of care in prison as they would outside of an institutional setting. These illnesses can further shorten the lifespan of the individual while he or she is in prison, a setting that already has poorer health outcomes and a lower life expectancy than the general population. The Bureau of Prisons estimates that the United States would save $5.8 million per year by releasing 100 people on compassionate release per year, and overcrowding would be lessened. Those who are approved for compassionate release have a lower tendency to recommit crime, which is attributed to those being released being in extremely poor health, and possibly due to the careful screening process inmates go through for risk of recidivism before approval for compassionate release can be granted.Criticism
Compassionate release relies on good faith, requiring that the released inmates do not continue committing crimes after they have been released; while many of these criminals are in very poor health, some are not incapacitated, and their reintroduction into society puts them back into a setting where they would be free to commit crimes. A questionnaire study by Jennifer Boothby and Lorraine Overduin on attitudes towards compassionate release suggested that undergraduate students have a negative attitude towards the compassionate release of prisoners, based on responses from 163 undergraduate students in an introductory psychology course. This suggests that negative attitudes toward compassionately released prisoners, and attitudes towards prisoners themselves, could be an obstacle to those seeking an expansion of this type of resentencing and that there is a negative attitude in midwestern university undergraduates over mingling with those convicted of crimes meriting time potentially up to life sentences. Another argument against compassionate release is fairness and concern over justice for time served; for those that were placed in prison justifiably, the question arises of how long they should be forced to serve for their crimes before they are allowed renewed access to their community for health and support, and state and federal laws generally stipulate guidelines that address minimum proportions of sentences that must be served before eligibility for compassionate release.The process of obtaining compassionate release on medical grounds has been criticized in multiple states for being highly subjective on a case-by-case basis, relying heavily on specific doctors' opinions and for not having sufficiently clear-cut guidelines as to what defines a patient as being eligible for compassionate release. This often results in calls for reform, fueled by statistics regarding the rate of compassionate release and the illnesses of the patients who do not receive it.
Implementation
A major roadblock to the implementation of compassionate release is its reliance on medical trials. Due to the fact that the criteria for medically based petitions for compassionate release are, by necessity, dependent on medicine and doctors, individual medical professionals have an inordinate amount of power in determining each compassionate release case. Because of the high degree of variation among individual medical professionals, the high variation that is translated into each decision is a major issue in many of the current compassionate release systems. The inconsistency of current systems of compassionate release is a common flaw that hinders increased use of compassionate release.Other options
For prisoners suffering from terminal illnesses, alternative options include programs that distribute health materials and segregation of affected individuals and expanded hospice programs. Hospice programs within the prisons have been used, although this does not address the humanitarian aspect of allowing inmates to die with dignity among family and friends, and the issue of cost to the state is still prevalent. Specialized medical care in a prison setting is difficult to achieve and is a costly proposition. With the prison population aging and in poorer health than the general population, as previously mentioned, cost may become a prohibitive factor, increasing the attraction of compassionate release where possible.For non-medical cases such as care for a family member in the absence of other available parties, practical alternatives are difficult to identify. A minor child or disabled spouse for whom no other caregiver is available is likely to end up as a ward of the courts or in institutional care if the compassionate release request is not granted.
As of 2009, corrections systems with compassionate release procedures included the United States Federal Bureau of Prisons, Scotland, England and Wales, China, France, New Zealand and 36 of the 50 U.S. state prison systems.
Legislation on compassionate release by country
New Zealand
legislation includes a provision for prisoners to apply for compassionate release from prison. Section 41 of the Parole Act 2002 provides that the Parole board may, on referral by the chairperson, direct that an offender be released on compassionate release on either of the following grounds: the offender has given birth to a child or the offender is seriously ill and is unlikely to recover. The Department of Corrections is not responsible for decisions regarding compassionate release of prisoners. When a prisoner is seriously ill and unlikely to recover, an application will be made to the New Zealand Parole Board where an independent decision will be made. All prisoners in New Zealand are eligible for compassionate release. The length of a sentence or eligibility for parole are not factors that will affect the prisoner's ability to apply for compassionate release.In November 2016, a high-profile prisoner, Vicki Ravana Letele was granted compassionate release from prison. Letele was sentenced to three years and two months for ten charges of dishonestly using a document. The application for compassionate release was based on Letele's diagnosis of metastatic cancer. Her illness was terminal with a life expectancy of 6 months. The chairman of the Parole Board, Hon J W Gendall initially declined Letele's release on compassionate grounds, citing: "It is quite often the case that prisoners contract or are diagnosed with serious illness but if they can be adequately treated and managed in prison and death is not imminent that compassionate release is not appropriate. It is not the case that family and others may reasonably believe that the prisoner should be in the care of his/her family at such difficult times."
The serving prime minister of New Zealand in 2016, Sir John Key, voiced his opinion on the Letele case following widespread public outcry and protest. Key stated: "I would have thought we were a pretty compassionate country. We do need to take on board the criminal activity that the person's undertaken but I don't think we want to see people dying in prison if, on compassionate grounds, it's reasonable they be returned home." Initial conflicting views between the Ministry of Justice and the Parole Board were resolved on 10 November 2016, when the Parole Board under Section 41 of the Parole Act 2002 ordered the compassionate release of Letele. The decision factored in that there was no offending history, the prison security classification was low and Letele was seriously ill and unlikely to recover.
Between the years of 2015 and 2016, seven prisoners were released on compassionate grounds, all cases determined on the basis that they were seriously ill and unlikely to recover. Figures from the years 2006 – 2013 revealed a total of twenty-five applications, with three of those declined. The application process for compassionate release can be difficult to achieve on time, which is one of the reasons that very few applications are received. Other reasons include the likelihood of a prisoner dying in prison before an application is approved, and an absence of reasonable and available support from family if a prisoner is released from prison. Furthermore, long-stay prisoners may not wish to be released; the prison may be regarded as home and fellow inmates as family.
Human rights approach
In practice, the Parole Board only releases prisoners on compassionate release if they are seriously ill and unlikely to recover. However, the Act also provides for compassionate release of a prisoner when they have given birth to a child. Prison management first assesses the prisoner's suitability, taking into account security classification, the welfare of the prisoner and the child, and the views of the Ministry for Vulnerable Children Oranga Tamariki. A report is then submitted to the Parole Board. However, the establishment of mother and baby units in prisons has made this provision practically void. The reason as for why it has not been removed from the Act is that it would violate New Zealand's International Human Rights obligations and be in contravention of Section 19 of the Bill of Rights Act; Freedom from Discrimination, if it were not available. Comparatively, compassionate release is based on underlying principles of human dignity. Dignity in this sense refers to the right of a human being to have inherent equal and inalienable rights to achieve social progress and better standards of living. Preventing the release of seriously ill prisoners would undeniably violate their human dignity.
The 2004 review of Human Rights in New Zealand stated that the vulnerability of people in detention was one of New Zealand's most pressing human rights issues. The United Nations Convention on the Rights of the Child United Nations Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women is the relevant conventions concerning compassionate release. In practice, the Department of Corrections supports a child's contact with parents who are in prison when it is in the best interests of the child. Prisoners are encouraged to have positive relationships with their children so they can better reintegrate on release. These principles uphold New Zealand's obligations under Article 9 of UNCROC: Separation from Parents, and includes several programs including 'Mothers with Babies Units', 'Mothers and Bonding Facilities' and importantly, 'Prison Activities Centres' that teach fathers parenting skills.
Similarly, under New Zealand's obligations in Article 12 of CEDAW improvements were made in women's correctional facilities to include 'Mothers with Babies Units' allowing mothers to keep their children with them in prison up until the age of two, where it was previously 9 months. The aim of this is to achieve a reduction in re-offending for women and increase their children's life chances. Compassionate release must be available to prisoners following the birth of a child to meet the obligations that are specified in these conventions. In practice, the incorporation of units that enable a relationship between a mother and child in prison is consistent with the obligations that New Zealand has in the context of international human rights. This explains the apparent non-existence of compassionate release on the ground that a prisoner has given birth.