The Pew Charitable Trusts

WASHINGTON -- Terminally ill prisoners who want to die at home rather than behind bars may be eligible for an early release under a state's "medical parole" or "compassionate release" law. But critics say the procedure is rarely used and that the process is bureaucratic and filled with red tape.

Just under 100 inmates were released under medical parole or compassionate release laws in 1997, according to the National Institute of Corrections. That number is down from 143 inmates released in 1996 and 214 released in 1994, according to the National Institute of Justice.

"Often times prisoners die while their medical parole is being processed. People need to recognize that these (paroles) are extremely hard to get granted," said Jackie Walker, the AIDS information coordinator with the ACLU National Prison Project in Washington, D.C.

About 30 states and the federal prison system have either a "medical parole" law that is overseen by the state parole board, or a "compassionate release" procedure, that is either legislated or part of an internal department of corrections procedure that allows for the early release of dying prisoners.

Just under 100 inmates were released under medical parole or compassionate release laws in 1997, according to the National Institute of Corrections. That number is down from 143 inmates released in 1996 and 214 released in 1994, according to the National Institute of Justice.

Rhode Island is the most recent state to pass a medical parole law.

Rhode Island's law, like that of most other states, says that in order for a prisoner to be granted early release it must be shown he or she is suffering from a terminal illness and to a reasonable medical certainty has only six months to live; that there is a medical discharge plan that determines the prisoner has an appropriate place to receive care, such as in a nursing home, hospice or private home; that the prisoner or their family can cover the cost of their care once released; and that the inmate would pose no harm to society if by chance they survive.

Prisoners sentenced to life without possibility of parole are not eligible for release under Rhode Island's law. Connecticut denies eligibility to a prisoner convicted of a capitol felony and New York similarly eliminates prisoners convicted of murder in the first or second degree, manslaughter in the first degree, and sexual offenses.

New York's law was passed in 1992, and through 1997 201 ill inmates had been released. But 409 inmates who applied for medical parole died before their review process was completed, according to Attorney Jack Beck, with the New York Legal Aid Society.

Although safeguards in the laws supposedly guarantee that prisoners who are released won't be dumped in the street without proper medical care, some corrections specialists worry that in the future officials may be eager to release medically-needy prisoners who no longer pose a threat to society.

Prisons currently spend 10 percent of their corrections budgets on average to cover the cost of inmate health care. Some states spend up to 15 percent of their total budgets on health care.

"My concern is that as the prison population ages, medical expenses are going to rise and corrections departments will try to cut expenses by dumping people into the community without adequate provisions for their care," said Professor Leo Carroll, a corrections specialist and the chairman of the Sociology Department at the University of Rhode Island.

While in prison, inmates are guaranteed "adequate" medical care. A 1976 U.S. Supreme Court ruling held that indifference to a prisoner's serious illness or injury is cruel and unusual punishment under the Eight Amendment.

Judy Greenspan, an advocate for California Prison Focus' AIDS in Prison Project, helped craft the compassionate release legislation in California. Her biggest complaint is that the process has become overly politicized.

"The whole problem with compassionate release is that no matter how it is instituted it is a political process. It should be a medical process decided by doctors," Greenspan said. "The prison system is more than reluctant to part with even the most seriously ill or disabled prisoner. The procedures are long, cumbersome and without realistic time limits."

Under California's "recall of sentence" law, 197 ill prisoners have been released since 1991. Prisoner advocates say that it costs more than $75,000 a year to incarcerate a terminally ill prisoner in California compared to $21,000 annually for a healthy one.

Tip Kindel, a spokesperson for California's corrections department claims the process is expedient. Once an inmate is diagnosed with six months or less to live, a petition can be filed by either the inmate, their family, or by the corrections department on their behalf. It then goes to the director of the corrections department who has 30 days to pass it on to the sentencing judge for a decision.

Dr. Eugene Madsen, a retired physician who spent five years treating prisoners at California's Avenal State Prison, said the cost of caring for sick prisoners often drives the decision to grant them an early release. Madsen also argues that upon release it is usually the taxpayers that pick up the bill for the former-inmate's health-care costs.

"It transfers the burden of cost and care for that prisoner to the outside society, which has a history of not caring for the people who don't have the money and ability. We as society have a dismal history of turning these people out in the streets and calling them crazy, homeless people," Madsen said.

Tough sentencing laws are leading to aging inmate populations. The Justice Department recently reported that 16 percent of inmates in state prisons and local jails are mentally ill. Also, about two-and-a-half percent of the prison population is infected with the HIV virus, and in some states up to 30 to 40 percent of inmates are infected with Hepatitis C, which can lead to lethal damage of the liver.

To accommodate terminally ill inmates in prisons, 11 states and the Federal Bureau of Prisons have developed formal prison hospice programs, according to a 1998 report from the National Institute of Corrections. The states include: California, Colorado, Illinois, Louisiana, Maryland, Missouri, New York, North Carolina, Pennsylvania, South Carolina and Texas.

A "hospice" is a facility that emphasizes providing support and humane care to a dying patient, rather than trying to cure the underlying disease. The report said that 12 more states are considering developing such a program.