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Expanded Eligibility for New York Medical Parole Has Little Effect

by Matt Clarke

In April 2009, New York passed a statutory amendment that expanded the state’s compassionate release program for terminally ill prisoners. The amendment permitted medical parole for prisoners convicted of certain violent crimes who were physically or cognitively unable to present a threat to society, if they had served at least half their sentence. The new guidelines resulted in an increase in the number of medical parole applications, from 66 in 2008 to 202 in 2009. However, the number of prisoners actually released on medical parole has not gone up.

Eddie Jones, an 89-year-old Harlem loan shark convicted of shooting a man twenty years ago, was slated to become the first prisoner released under the expanded medical parole guidelines. Instead, he died in prison on February 1, 2010, nine days before his scheduled parole hearing. He suffered from heart disease and was suspected of having cancer.

Mr. Jones’ fate was not unusual. Since 2005, at least 17 New York prisoners have died while awaiting processing of their medical parole applications. Also known as compassionate release, medical parole has been a hot topic in detention facility circles nationwide over the past several years. The idea is to release selected prisoners who are incapable of being a threat to society, which saves the prison system the cost of their medical care. After release, their treatment is often covered by Medicare or Medicaid.

New York officials estimate medical care for a seriously ill prisoner costs the state $150,809 a year. Therefore, especially in these times of scarce budget resources, medical parole makes sense. That is why New York became one of a dozen states to expand or streamline their compassionate release guidelines in the past two years.

Forty-one states allow medical paroles, but they often have little impact on the number of prisoners who are released. For example, federal judges have ordered the California prison system to reduce its population by 40,000 prisoners, yet only two prisoners were released on medical parole in 2009. Current state law restricts medical parole to prisoners who are “permanently unable to perform activities of basic daily living,” and such releases must be approved by a judge. A bill was introduced in March 2010 to broaden California’s medical parole program.

Alabama is struggling with prisons that hold double their population capacity, but the state released only four prisoners on medical parole in 2009 while 35 prisoners died awaiting the processing of their applications. New York, which enacted medical parole legislation in 1992 during the AIDS crisis, has medically paroled only 364 prisoners since that time. Seven were released in 2009.

In the federal prison system, the U.S. Sentencing Commission issued a new policy statement in November 2007 which held that the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A) should include both medical and non-medical conditions.
However, a motion for compassionate release must be initiated by the Bureau of Prisons, not the prisoner, and federal prison officials typically make such motions only when a prisoner is “suffering from a serious medical condition that is generally terminal, with a determinate life expectancy.” See: United States v. Traynor, 2009 WL 368927 (E.D.N.Y. 2009).

Texas, on the other hand, has medically paroled around 1,000 prisoners over the past decade, although that represents only about 25% of the prisoners recommended for such releases by prison doctors. Since 2008, Michigan has released more than 100 prisoners who are elderly or infirm. “It gives the prisoner an opportunity to be in the community during that end-stage period,” said Michigan DOC spokesman John Cordell.

The reasons why few prisoners are released on medical parole include lingering concerns that even terminally ill prisoners may commit more crimes, plus the ever-present politician’s fear of appearing “soft on crime.” According to Texas parole board chairman Rissie L. Owens, “You can be sick, have an illness or a disease, and still be a threat.”

Prisoner advocates view these fears as overblown. During the 18 years that New York’s medical parole program has been in effect, only 3 of the 364 parolees have returned to prison – none of them for a violent offense. However, so long as compassionate release policies are decided on the basis of emotions and politics, few prisoners can expect to obtain medical parole regardless of the humanitarian and financial benefits.

“These are totally incapacitated inmates, terminally ill inmates, inmates on
respirators, who are not paroled at a huge expense to the state and hardship to the inmate’s family because of the nature of a crime they may have committed 20 or 30 years ago,” said Texas state senator John Whitmire. “I think it’s largely for political reasons.”

An estimated 74,100 prisoners nationwide are age 55 or older, an increase of 79% over the past decade. Elderly prisoners are more likely to have serious health conditions. Last year, in addition to New York, the prison systems in Maine and Wisconsin expanded their medical parole guidelines. And on the federal level, Congress included a two-year trial project for the early release of elderly, non-violent prisoners, called the Elderly Offender Home Detention Pilot Program, when it enacted the Second Chance Act in 2008.

In March 2010, the New York Post reported that the first prisoner to be released under New York’s expanded medical parole law would be Don Juan Britt, 37, who had served 15 years of a 20-year sentence for attempted murder. Britt was left partially paralyzed by a brain aneurysm; he had previously obtained a $325,000 settlement in a lawsuit against the state, claiming that prison officials had failed to protect him from attacks by other prisoners. [See: PLN, Feb. 2008, p.33].

Sources: New York Times,,,, New York Post

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Related legal case

United States v. Traynor