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Doctors Propose Changes to Fix Flaws in Compassionate Release Programs

by Mike Brodheim

In “Balancing Punishment and Compassion for Seriously Ill Prisoners,” published in the July 19, 2011 issue of Annals of Internal Medicine, Doctors Brie A. Williams, Rebecca L. Sudore, Robert Greifinger and R. Sean Morrison propose changes to address “medical-related flaws” in compassionate release programs for prisoners.

The authors, affiliated with prestigious academic and medical institutions in New York and San Francisco, as well as with the U.S. Department of Veterans Affairs (for Drs. Williams, Sudore and Morrison), make the case that, as physicians, they are obligated to “lend [their] expertise and ethical suasion to ensure that compassion is fairly delivered.”

Compassionate release programs allow for the release of eligible, seriously ill prisoners before the end of their sentences, typically so they may die outside of prison. Such programs now exist in all but five states, as well as in the federal prison system. They seek to address the growing recognition that 1) the principal justifications for incarceration may be substantially undermined when a prisoner becomes “too ill or cognitively impaired to be aware of punishment, too sick to participate in rehabilitation or too functionally compromised to pose a risk to public safety,” and 2) the healthcare costs associated with incarcerating an aging, increasingly infirm and growing prisoner population are so prohibitively expensive that society may no longer be able to afford the current trend of overincarceration, at least not without taking into account the extent of the actual threat posed by elderly, disabled and terminally ill offenders.

The authors note that compassionate release typically consists of two distinct elements: eligibility (based on medical evidence) and approval (based on legal and correctional considerations). To the extent that doctors play a determinative role with respect to the first of those elements, they argue that “the development of standardized national guidelines by an independent advisory panel of palliative medicine, geriatrics, and correctional healthcare experts” is critical “to ensure that medical criteria for compassionate release are appropriately evidence-based.”

The authors also write that while compassionate release requires physicians to predict life expectancy as well as functional decline, neither may be easy to predict in practice. On the one hand, life expectancy is difficult to establish for conditions such as advanced liver, heart and lung disease, and dementia – increasingly common causes of death and disability among prisoners. On the other hand, for patients with more predictable prognoses such as cancer, functional trajectories are variable and unpredictable.
Accordingly, the authors propose that national criteria for medical eligibility for compassionate release categorize prisoners into three groups: 1) those with a terminal illness with predictably poor diagnoses; 2) those with Alzheimer’s disease and related dementias; and 3) those with serious, progressive, nonreversible illnesses with profound functional or cognitive impairments.

Recognizing that prisoners are typically illiterate or otherwise unable to navigate the procedural steps of the compassionate release application process by themselves, the authors urge the adoption of a “transparent process” that includes 1) the assignment of a “prisoner advocate” to assist and represent incapacitated prisoners; 2) a fast-track option for evaluation of rapidly-dying prisoners; and 3) a well-described and disseminated application procedure.

Standardization of the eligibility guidelines and minimization of procedural obstacles, the authors argue, will help reduce inequities in the compassionate release process for prisoners who are deserving of early release due to medical reasons. However, the political component of releasing terminally ill prisoners is beyond the scope of the medical profession.

Source: “Balancing Punishment and Compassion for Seriously Ill Prisoners,” by Brie A. Williams, M.D., et al., Annals of Internal Medicine, Vol. 155, No. 2 (July 19, 2011)

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