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Release of Medically Incapacitated Prisoners Could Save California Taxpayers Hundreds of Millions in a Time of Budget Crisis

Release of Medically Incapacitated Inmates Could Save California Taxpayers Hundreds of Millions in a Time of Budget Crisis

Will the Board of Parole Hearings and the Schwarzenegger Administration Follow the Law?

Ken-Karan.gif By Ken Karan

Incarcerating people who are permanently medically incapacitated is a policy that produces no benefit to taxpayers at astronomical expense. The State of California is facing a 17 billion dollar budget deficit. Government officials must decide whether to continue diverting millions of dollars in public funds to incarcerate comatose or paralyzed inmates, or spend that money to hire teachers and police officers.

These choices are coming into focus as the results of three strikes laws, mandatory sentencing, and draconian anti-drug legislation, stoked by fear and political opportunism, become apparent. According to the U.S. Department of Justice, in 2006 American prisons held more than 2 million persons in prison. The rate of incarceration in the United States is the highest in the world, and almost seven times higher than such politically repressive governments as China?s. Thirty years ago, California had 12 prisons and fewer than 30,000 prisoners. Today, the state has an inmate population of almost 175,000 inmates living in 34 prisons designed to hold no more than 81,000 men and women. The 2008 budget for the Department of Corrections and Rehabilitation (CDCR) is over $10 billion with over $1 billion in health care costs alone.

The dysfunctional prison health care system has been under the control of a federal court since 2005. That same court ordered the state to develop plans to reduce overcrowding or face mandatory release of inmates. In January 2007, the Little Hoover Commission, a major State of California institution, issued a report that declared the prison system to be, "in a tailspin that threatens public safety and raises the risk of fiscal disaster."

If the theory that incarcerating every offender would reduce crime was valid, one would expect to see a reduction in crime leading, at some point, to reduced costs of incarceration. Crime rates peaked in 1992 and have dropped sharply since. But, even as crime rates fell, imprisonment rates remained high and continued their upward spiral. The truth is that the promise that getting tough on crime would produce a dividend to society has failed spectacularly as California's dysfunctional prison-industrial complex keeps growing its supply of inmates.

As citizens begin to realize that they are not getting what they are paying for, a movement to implement more rational policies is taking hold. One policy in particular, as part of the statute providing for recall of sentence, is known as "compassionate release." The law recognizes circumstances in which decency calls for the release of inmates determined to have a terminal illness that will produce death within six months. With terminal illness as the only medical criteria for recall, however, other inmates were not considered even when they no longer had the physical ability to re-offend, such as persons who are comatose or paralyzed.

But, that changed recently. In 2007, Governor Schwarzenegger signed into law a provision that allows a person who is permanently medically incapacitated, and who poses no threat to public safety, to be released. This change has the potential to save the state millions of dollars, provided that the CDCR follows the law.

The state has the constitutional obligation to provide medical care for citizens who are incarcerated. A civil society recognizes that, if it is going to exercise authority to deny a person his liberty, having removed the ability of the person to provide for himself, society must also provide the basic necessities of life. Decency requires that we exercise the ability to punish cruelty without practicing it. That is the cost of public safety where those who pose a threat are removed from society. But, a rational policy recognizes that where the threat no longer exists, continuing to incur the public expense of incarceration amounts to paying a premium for protection without receiving any value for it. No public benefit accrues to citizens who are paying to incarcerate a person who can no longer offend.

Few examples better illustrate how irrational it is to incarcerate the medically incapacitated than cases where an inmate is quadriplegic. No greater cost is incurred by the prison system than the cost of caring for a quadriplegic. The complications that necessarily follow total paralysis go far beyond the loss of muscle control. In some cases, the person cannot breathe on his own. Providing artificial respiration requires specialized equipment, constant monitoring, and trained personnel. Even those who can breathe are subject to respiratory ailments such as pneumonia because they cannot cough effectively.

The inability to move creates the risk of skin breakdown. Prevention requires nurses to provide pressure relief every 20 minutes. Inactivity and lack of weight bearing cause muscles to atrophy, bones to become brittle, cardiovascular system to fail, pulmonary embolism to occur, digestion to dysfunction, and blood circulation to slow. Tendons can contract causing deformities. Quadriplegics suffer from uncontrollable spasms which are painful, can cause injury and create friction on vulnerable skin. The inability of the nervous system to process signals from below the level of injury creates a feedback loop known as autonomic dysreflexia. If not treated immediately, the condition leads to uncontrollable blood pressure and death. Quadriplegics are incontinent and require catheterization and a regular bowel program.

Generally, three full-time nurses must be specially trained to provide round-the-clock care that requires providing for the patient all hygiene, feeding, bowel and bladder care, physical therapy, and medication. These patients require regular evaluation by specialists that includes the expense of transportation to community facilities and the cost of security personnel. If the patient has diabetes, the complications are magnified.

Quadriplegics have a right to access all programs and services provided by the institution, including those related to education, visitation, legal services, exercise, and recreation. The failure by the prison to provide medical care or accommodations for disabilities leads to the cost of litigation. An estimate of the annual cost to taxpayers to incarcerate a quadriplegic, with medical care and custody costs, approaches $500,000, and that is without extraordinary treatment as the patient?s systems inevitably fail.

A rational policy for incarceration reflects the cost-benefit to taxpayers of releasing persons who are permanently incapacitated. In spite of the policy direction established by the Governor?s office, the Department of Corrections and Rehabilitation (CDCR) is resisting the change. In possibly the first case under the new law, the Director of CDCR recently denied a petition by a quadriplegic for a recommendation to the court for consideration of recall. This is a precedent that should concern those worried about the high cost of the prison system.

An examination of the Director?s reasons for the denial puts into question whether the prison system intends to implement the new law. According to the law, the only criteria for consideration is whether the inmate is permanently medically incapacitated and whether he or she poses a threat to public safety. The Director concedes that the inmate in question is eligible under the statute. The Department?s own analyst admits that the inmate's "physical threat is clearly unlikely." The Director justifies continuing to incarcerate this quadriplegic by pointing to the offense and his behavior in prison claiming that a recall is "not in the interests of justice." The alleged behavior the Director points to relates to the inmate refusing care from abusive nurses, as is his right.

A careful look at the statute reveals that consideration of the nature of the commitment offense or alleged behavior while in prison are not part of the evaluation. Nor does the statute authorize the Director to determine the interests of justice. Given the fact that the inmate meets the statute's criteria, the fact that the continued incarceration of a quadriplegic will cost the state vast amounts of money it does not have, and the fact that CDCR budget requests and employment of prison guards are based on claims of costs, citizens might ask whose interests the Director is looking out for.

The case referred to is now pending before the Board of Parole Hearings which must make its own independent determination to ask the court to make the ultimate decision on release. The Board must decide whether it will limit its inquiry to that set forth in the statute, or go beyond the law and consider the basis for denial set forth by the Director. We will learn whether the Board agrees with those citizens, and whether it intends to implement the law, in June.

The public recognizes that punishment through imprisonment has its limits or every crime would carry a life sentence. Convicted felons are released from prison every day after completing their sentences or by parole. Most prisoners do return to the community in spite of the risk that they might re-offend. The risk of releasing an inmate who cannot even shoo a fly from his nose is certainly not a risk to public safety. The choice between paying to incarcerate and provide medical care for an inmate who poses no threat, and paying to hire more teachers and police officers is an easy one. The public has much to gain by ending the practice of incarcerating those who are prisoners in their own bodies, whether they are inside or outside the prison gates.

Attorney Ken Karan is a passionate advocate of human rights, the principles of democracy and the United States Constitution. His legal career has been dedicated to representing the rights and interests of individuals who have been damaged due to the negligence or other illegal behavior of others. In the area of prisoner rights, Karan supports efforts to reform California's prison system, with a special interest in the compassionate release of inmates who no longer pose a threat to society. Karan also co-founded Psephos which is a nonprofit focused on election integrity and restoring precinct-based elections in the United States, where citizens hand count the ballots. Prior to entering the practice of law, Karan had a successful 15 year career as helicopter pilot including work for the World Health Organization in West Africa and aeromedical transports for the University Medical Center in Tucson, Arizona. He attended law school at the University of Arizona and currently resides in Carlsbad, California. To contact him email

Posted on May 18, 2008

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