Parole for the Elderly Compassionate Release Debate

Parole for the Elderly Compassionate Release Debate ORDER NOW FOR CUSTOMIZED AND ORIGINAL ESSAY PAPERS ON Parole for the Elderly Compassionate Release Debate Review “Compassion and the Public Interest: Wisconsin’s New Compassionate Release Legislation” in this week’s University Library Readings . You must use this reading for summarizing the arguments for and against. You can use additional outside readings as well to assist with other areas of this assignment. Parole for the Elderly Compassionate Release Debate Write a 700- to 1,050-word paper that summarizes the arguments for and against confining sick and older adult prisoners in jail. Include the following in your paper: Which of these arguments do you think have merit? What values underlie each position? How does medical parole or release fit into this discussion? Provide alternative solutions to the problem and discuss their overall impacts. Format your paper according to APA guidelines. Submit your assignment. attachment_1 Compassion and the Public Interest: Wisconsin’s New Compassionate Release Legislation Current sentencing and parole policies can be characterized by what John Pratt terms penal populism.1 This approach to criminal justice includes widespread increase in police surveillance and arrests,2 elimination of rehabilitation as a correctional goal,3 and an unprecedented expansion of the prison population.4 Although crime rates have been declining appreciably for some time (a decline that preceded the explosion in prison populations),5 it has become politically expedient to ignore policy suggestions based on statistical analysis and focus rather on the uninformed beliefs of the populace.6 Because the prison system is backed by a bureaucracy of its own, it continues to grow according to an internal rationality that favors constant expansion according to a decidedly retributive ethos.7 Because so much of prison life occurs far from the public’s view, changes in policy and implications of longheld truisms are rarely noticed by those who are not directly affected by the penal system. Just as Victor Hugo’s fictional Jean Valjean could be largely forgotten in the bowels of prison, women and men sentenced to correctional facilities largely fall from consciousness unless or until benign neglect is disturbed by other factors. Today, that benign neglect in Wisconsin has been disturbed by the financial constraints of maintaining the current prison population. Between 2000 and 2007, Wisconsin’s prison population increased by 14 percent.8 The State Corrections budget increased by 71 percent from 1999 to 2009.9 Wisconsin’s health care costs for adult prisoners leapt from $28.5 million in 1998 to $87.6 million in 2005.10 The Wisconsin Department of Corrections estimates that it will cost $2.5 billion between 2009 and 2019 to reduce overcrowding and accommodate the expansion of the prison system.11 As a result of looming costs, Wisconsin, like other states, has begun to reconsider implications of previously popular law-and-order policies. One product of Wisconsin’s reconsideration is a recent change in compassionate release standards for inmates in state correctional facilities.22 This legislation both expands the category of those eligible for sentence modification and streamlines the procedure.13 Although the law has much to recommend it, issues unaddressed may prove costly—notably the unintended consequences of placing financial burdens on the families or communities to which these prisoners are released in a bleak economic climate. The idea of compassionate release of elderly and ill inmates is not new.14 In 1994, Professor Marjorie Russell published a consideration of the compassionate release and medical parole programs of the fifty states and the District of Columbia.15 Only three jurisdictions, the District of Columbia, Kansas, and Maine, had no programs for the parole or release of terminally ill prisoners.16 Russell noted that Gregory J. O’Meara * Associate Professor, Marquette University Law School [t]wenty-two states reported that they have no compassionate release program, but each has at least one method by which a terminally ill prisoner can seek release. These methods included: commutation of sentence through the administrative procedures of the DOC with no specific provision relating to the terminally ill; general claim for executive clemency; and normal parole application procedures, where the prisoner’s medical condition is only one factor to be considered in the ordinary parole decision.17 Thus, almost twenty years ago, states recognized a need for this safety valve even without providing a specific statutory grounding for it. Parole for the Elderly Compassionate Release Debate Professor Russell maintained that compassionate release statutes address the concerns of both inmates and the states far better than do more generalized administrative procedures or clemency petitions.18 After laying out the shifts in eligibility standards and procedure between Wisconsin’s old and new compassionate release laws, I will turn to broader concerns that fall under the public-interest calculus called for in the statutes. In addition to usual criminological considerations, I suggest that the word compassionate will need to do heavy lifting if this law is to make a difference in the lives of inmates. I. Wisconsin’s Old Compassionate Release Law By way of background, Wisconsin’s current sentencing structure is relatively new; it was overhauled between 1998 and 2003 under the provisions of the state’s Truth in Sentencing legislation.19 Under that law, parole was abolished; felons sentenced to prison are now given a bifurcated (two-part) sentence in which the sentencing judge specifies an amount of time a convicted felon will Federal Sentencing Reporter, Vol. 23, No. 1, pp. 33–38, ISSN 1053-9867 electronic ISSN 1533-8363. ©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2010.23.1.33. F e d e r a l S e n t e n c i n g R e p o r t e r • V o l . 2 3 , N o . 1 • ?O c t o b e r 2 0 1 0 FSR2301_05.indd 33 33 9/15/10 3:44:34 PM serve in prison and an amount of time the person will serve in the community on extended supervision.20 Under the original provisions of Truth in Sentencing, most inmates, with approval of the program review committee at their respective institutions, could petition the sentencing court for release to extended supervision in certain extenuating circumstances.21 However, inmates serving life sentences were not eligible to petition.22 Eligible inmates included both the elderly and the gravely ill. With regard to the elderly, the program review committee at the housing institution could consider petitions filed by prisoners either 60 or 65 years old who had served substantial portions of their sentences.23 In addition to these petitions, those who had a “terminal condition” could file for modification.24 The statute defined “terminal condition” as an incurable condition afflicting a person, caused by injury, disease, or illness, as a result of which the person has a medical prognosis that his or her life expectancy is 6 months or less, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.25 Inmates who fit within either category could then petition the program review committee of their correctional institution, requesting modification of the bifurcated sentence.26 Any request for modification based on a terminal condition required affidavits from two physicians.27 The institution’s program review committee then reviewed each petition filed and decided if the “public interest” (a phrase undefined in the statute) would be served by modifying the inmate’s sentence.28 Only if the program review committee found such interest could the inmate’s petition be referred to the sentencing court.29 The statute provided no right to appeal the program review committee’s denial of a petition for modification.30 At the sentencing court hearing, the petitioner, the district attorney, and any victim of the crime for which the petitioner was sentenced were permitted to be heard.Parole for the Elderly Compassionate Release Debate 31 The petitioner bore the burden of proving by the greater weight of the credible evidence that modification of his or her sentence would be in the public interest.32 If the court so found, any reduction in the incarceration portion of the bifurcated sentence was balanced by a like increase in the extended supervision portion so that the total length of the original sentence did not change.33 The court’s decision could be appealed by either the petitioner or the state.34 Inmate petitioners had the right to be represented by counsel, including appointment of a state public defender.35 In its study of the new legislation, the Legislative Fiscal Bureau of Wisconsin provided no evidence describing whether or how often this law resulted in the release of inmates from confinement.36 II. Wisconsin’s New Compassionate Release Law Wisconsin’s new compassionate release law simplifies earlier procedures and expands the class of inmates who can petition for sentence modification. The statute retains 34 FSR2301_05.indd 34 the distinction between those petitioning for compassionate release because of age and those who petition for reasons of ill health. The age qualifications track the previous legislation37; however, the new provision no longer bars petitions by elderly inmates sentenced to life imprisonment.38 The second category of “extraordinary health condition” may signal greater eligibility to petition under the law.39 Anyone claiming “advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution” may now petition for compassionate release.40 In terms of procedural differences, the law shifts the locus of decision making from the sentencing court to a newly created administrative panel, the Earned Release Review Commission, which replaces the parole board.41 The Commission, part of the executive branch of state government, consists of eight members who have “knowledge of or experience in corrections or criminal justice.”42 The chair is nominated by the governor and subject to state senate approval; other members are appointed by the chair.43 Inmates meeting eligibility criteria may submit petitions to the Commission.44 Upon receipt of a petition, the Commission sets a hearing to determine whether the public interest would be served by modifying the sentence as requested.45 The District Attorney from the sentencing jurisdiction and any victim of the inmate’s crime must be notified and can be present for any such hearing.46 Again, inmates must prove that granting their petition would serve the public interest by the greater weight of the credible evidence.47 For inmates who meet that burden, the Commission must modify their sentence in the manner requested.48 As was the case under the previous legislation, if the petitioner prevails and is granted a modification, the state may appeal that decision to a reviewing court (which may overturn the determination using an abuse of discretion standard).49 By contrast, inmates can only appeal from the denial of their petition under the common law right of certiorari.50 Again, those petitioning for modification are afforded the right to counsel, including appointment of a state public defender.51 Echoing previous law, reduction in an inmate’s term of confinement must be balanced with a like increase in the period of extended supervision so that the total length of the sentence imposed remains the same.52 Initially, one must applaud Wisconsin’s willingness to revisit parts of a recent sentencing overhaul to address difficulties in the current system. Parole for the Elderly Compassionate Release Debate Although the proposed changes are hardly sweeping in scope, they do offer real possibilities of change. By removing a level of bureaucracy and shifting decision making from elected judges to a politically appointed commission, Wisconsin may speed up the petitioning process and improve results. In an era when judicial elections are marred by often unsupported allegations that opponents are soft on crime, the decision to release an elderly or infirm prisoner seems best shielded from obvious political posturing. That said, the Commission must still be responsive to the citizens of the state. F e d e r a l S e n t e n c i n g R e p o r t e r • V o l . 2 3 , N o . 1 • ?O c t o b e r 2 0 1 0 9/15/10 3:44:35 PM III. Public Interest Considerations To determine the public-interest standard that governs decisions to grant or deny release, it is helpful to return to standard sentencing goals. Presumably public interest includes consideration of specific deterrence of the inmate and protection of the public, retribution for past wrongs, and an inmate’s efforts at rehabilitation while incarcerated. The literature also indicates that public interest includes saving the criminal justice system money while not imposing an undue burden on the communities to which the inmates will be released. Finally, it seems that consideration of the public interest must also include some reflection on the odd word compassionate in the title of the statute. No one doubts that specific deterrence and protection of the public are paramount in considering the release of prisoners into society. To underscore this idea, Wisconsin State Representative Scott Suder recently organized fortyfour GOP lawmakers to protest all of the prisoner release provisions passed as part of the budget bill in 2009.53 Commenting on similar legislation in the past, Suder decried compassionate release of elderly inmates: “I don’t think age should be a factor . . . for letting people loose early or giving them things like house arrest. . . . Putting these criminals in residential nursing homes with an already vulnerable population . . . I think is just utterly dangerous.”54 Although concern with public safety is an important factor, statistical analysis undermines claims that those eligible for compassionate release pose a substantial threat to society.55 Research in this area indicates that elderly prisoners are the least likely to, and the least capable of, committing crimes.56 For one thing, elders in prison appear to be more physically impaired than the general elderly population.57 They frequently have lives marked by poverty and addiction;58 therefore, they tend to be less healthy than society at large. Aside from these ex ante considerations, the major factor contributing to growth in Wisconsin’s prison population is revocation of earlier sentences.59 Inmates know that they will always be subject to revocation if they step out of line while on extended supervision. This awareness may well discourage further unlawful behavior. Second, internal evidence from the statute demonstrates that retribution is taken into account in compassionate release determinations. Elderly prisoners are not eligible to file petitions until they have served a substantial period of their sentences behind bars.60 Furthermore, Wisconsin prison sentences and periods of extended supervision have increased markedly under Truth in Sentencing, which in part underscores the necessity of this law.61 Retribution concerns are thus met. In addition, Wisconsin statutes specifically provide that courts must consider inmates’ efforts at rehabilitation while incarcerated as a factor in any motion to modify a sentence.62 Insofar as correctional institutions still accept the idea that prisoners strive to reform their lives, inmates’ efforts at selfimprovement are rewarded by current Wisconsin law.63 Although necessary, it is fair to concede that the foregoing would not constitute sufficient grounds for changing the release standards barring an expected dividend of cost savings. Thus, it is noteworthy that such savings remain undefined. Parole for the Elderly Compassionate Release Debate For example, no one has been able to estimate what, if any, net savings may accrue because of Wisconsin’s sentence modification legislation.64 Indeed, rather than careful analysis of projected savings and possible costs that may be shifted to other state, county, or municipal programs by releasing inmates under compassionate release, the legislative history assumes without proof that it is more economical to house some people outside of state prisons. Moving prisoners out of the state corrections system will surely save money for corrections.65 The National Center on Institutions and Alternatives concluded that release of nonviolent elderly prisoners to communities would result in “astronomical” savings.66 Later studies are more guarded and suggest that it is at best unclear whether this strategy will garner any net savings across government and private entities.67 One key concern is that costs may be shifted to those particularly unable to take on added financial burdens given the precarious state of Wisconsin’s current economic situation. In particular, Milwaukee has been recognized as a metropolitan area suffering concentrated poverty.68 For instance, one recent study of the past forty years of economic data in the largest U.S. cities revealed that “none of their urban centers fell as far, as fast, as hard,” as Milwaukee’s.69 The study concluded that “Milwaukee falls to the bottom of nearly every index of social distress.”70 Another recent study revealed that Milwaukee has one of the highest rates of Black male joblessness among U.S. cities.71 If one accepts as a reasonable assumption that many who are released will return to their families for end-of-life or extended care, it would also seem reasonable that any bill providing for compassionate release would provide for increased community reentry funding to support families facing the financial burdens associated with caring for these family members. Before the new bill, the State Department of Corrections spent more than $27 million annually for the purchase of goods, care, and services, including community-based residential care, for inmates, probationers, parolees, and individuals on extended supervision.72 Although the governor requested additional positions and funding in the bill of more than $5 million, that request was vetoed by the Wisconsin Legislature’s Joint Finance Committee and adopted by the Conference Committee.73 This denial of additional funding may end up costing the state more in the long run, because it may either make compassionate release a practical impossibility in a great number of inmates’ cases or lead families already in precarious financial circumstances into even greater economic distress. Parole for the Elderly Compassionate Release Debate Despite these very real cost concerns, on balance, the public interest may well be upheld by Wisconsin’s new compassionate release programs—but this interest requires a different sort of analysis from that which usually occupies F e d e r a l S e n t e n c i n g R e p o r t e r • V o l . 2 3 , N o . 1 • ?O c t o b e r 2 0 1 0 FSR2301_05.indd 35 35 9/15/10 3:44:35 PM lawyers. The values at stake are well expressed by considering the Latin root of the word compassion: “I suffer with.” Rather than the Kantian broad-based rules that characterize most public interests, the interest spoken of here is more in line with a Heideggerian “Dasein,” the “being there” that roots more personal considerations.74 The word compassion evokes a relationship at a level of personal directness that the penal apparatus rarely considers. Rather than determining results that could be seen as distributed equitably by a blindfolded figure holding scales, those deciding compassionate release petitions must consider the suffering and extremity of a particular inmate with particular physical, emotional, and mental needs and limitations. In determining the public interest involved in compassionate release of convicts, the Commission will need to ask not only what sort of society we are but also what sort of society we aspire to be. For compassionate release, the public interest must be focused on a very particular private interest. If the Commission is not willing so to act, Wisconsin’s new compassionate release law will not engender much change. Notes * 1 2 3 4 36 FSR2301_05.indd 36 I would like to thank Professor Phoebe Williams for her helpful insights. I owe a further debt of gratitude to Mr. Samuel Sarver, who helped with research on this paper. Finally, thank you to the kind staff at the Marquette University Law Library, especially Ms. Julia Jaet, Mr. Peter Kersten, and Ms. Robin Cork, who graciously helped me hunt down sources. John Pratt, Penal Populism 12 (2007). Pratt characterizes penal populism this way: [P]enal pop … Get a 10 % discount on an order above $ 100 Use the following coupon code : NURSING10