Yet neither the state’s compassionate release law nor medical parole statute is being used sufficiently to make an appreciable difference in the number of comatose, paraplegic or otherwise seriously ill or disabled prisoners serving time in California.
Compassionate release provisions have been on the state’s law books since 1991; they allow a court to “recall” a prisoner’s sentence if he or she is terminally ill and has a life expectancy of six months or less. In the 20 years from 1991 to 2010, prison doctors referred 1,183 prisoners for compassionate release consideration. Approximately 70% of those referrals were rejected because prison administrators or judges believed the prisoners could still pose a risk to public safety.
As discouraging as that statistic may be, it still means that 348 prisoners have been granted compassionate release over the past two decades, or about 17 a year on average. The 32 other states with compassionate release laws, plus the District of Columbia, also have a poor track record of releasing prisoners with serious medical conditions. [See: PLN, Feb. 2011, p.34].
Although there has been no record of reoffending by prisoners released due to medical reasons, the system that allows for compassionate release has nonetheless been subject to intense criticism. In one high-profile case in Scotland, Abdelbaset Mohmed Ali al-Megrahi, a Libyan national who was involved in blowing up a Pan Am flight in 1988 that killed 270 men, women and children, was granted compassionate release in 2009 after doctors determined he had less than three months to live. The American government was outraged not only because al-Megrahi was released, but also because he outlived the doctors’ prognosis; he was still alive as of January 2012.
California’s new medical parole law provides that prisoners may be released if they are “permanently medically incapacitated with a medical condition” and are “unable to perform activities of basic daily living.” They can be re-incarcerated if their condition improves after they are granted medical parole or if they violate the rules of their supervision.
In March 2011, more than five months after California’s medical parole law went into effect – and after preliminarily identifying 25 suitable candidates – the California Department of Corrections and Rehabilitation (CDCR) had yet to schedule a hearing for even one of those prisoners. The reason? The CDCR had not drafted regulations to implement the new law. “These are complex public safety regulations,” explained Terri McDonald, the CDCR’s chief deputy secretary of adult operations.
State Senator Mark Leno, who had sponsored the medical parole law (SB 1399), was not pleased with the delay. “We have school districts on the verge of closing” due to the state’s budget crisis, Leno said, adding, “We don’t have millions of dollars to squander on this kind of nonsense.”
He was referring to the fact that the state pays more than $50 million annually to treat and incarcerate the 25 prisoners identified by the CDCR as suitable candidates for medical parole – and countless millions more for other prisoners with serious medical conditions. Roughly 40% of that $50 million (or $20 million) goes to salaries, benefits and overtime pay for prison staff to guard those 25 prisoners – many of whom cannot even breathe on their own but require the assistance of a ventilator. Senator Leno noted that less than 1 percent of the state’s prison population accounts for 10 percent of the CDCR’s spending on medical care.
If it weren’t tragic, the situation would be comical. The typical guard detail at an outside hospital consists of two guards watching over each medically incapacitated prisoner who, per standard operating procedure, is shackled to the hospital bed. The officers, meanwhile, are supervised by a sergeant. The reason for such extensive security? To prevent escapes.
Responding to suggestions that incapacitated prisoners with serious medical conditions were unlikely to escape, CDCR spokesperson Oscar Hidalgo said that reducing the level of security for such prisoners would only invite unnecessary risk. “And we are not in the business of taking risks with public safety,” he stated, apparently oblivious to the minimal level of dangerousness posed by prisoners who are quadriplegics, on ventilators or bedridden.
“To have comatose patients guarded 24 hours a day by two prison guards by the side of the hospital bed is just crazy,” observed Senator Leno.
After the Los Angeles Times focused the public’s attention on what appeared to be an embarrassing waste of tax-payer money – roughly $750,000 a year in staffing costs to guard each medically incapacitated prisoner – the CDCR moved quickly to begin scheduling medical parole hearings.
The CDCR approved three incapacitated prisoners for medical parole, all without the benefit of the “complex” regulations that prison officials had formerly claimed prevented them from scheduling such hearings. The first prisoner to be considered by the parole board, Steven Martinez, 42, a quadriplegic, was denied medical parole in May 2011. The board, which did not let him attend the hearing, said his verbal abuse of prison staff indicated he still posed a risk to public safety. More than 40 prison nurses submitted a letter to the parole board arguing against his release. Martinez is serving a 157-year sentence for rape and other serious crimes.
“What we’ve been doing is spending money and not getting anything for it. We have a man in prison who can’t hurt a fly and we’re spending hundreds and thousands of dollars – I think it’s around over $600,000 a year – to guard this man when he can’t do anything but annoy somebody,” said Martinez’s attorney, Ken Karan. “‘Vengeance for vengeance’ sake is a luxury we can no longer afford.” Obviously the CDCR thinks otherwise.
On June 16, 2011, Craig Lemke, 48, became the first CDCR prisoner granted medical parole. He was serving a 68-year, three-strike sentence for a home-invasion robbery, and was expected to be released within 120 days of the parole board’s decision.
According to the New York Times, 29 California prisoners had been released on medical parole as of mid-January 2012, at an estimated savings to the state of $19 million. Four are living in a nursing home in Sunnyvale, while others have been placed in nursing homes or medical care facilities in El Cajon and Los Angeles. This concerns California’s long-term care ombudsmen.
“There are worries involved in putting prisoners in with the regular population of frail seniors, but there is a lot of risk involved in putting them in with psych patients,” said Wanda Hale, program manager for the long-term care ombudsman at Catholic Charities in Santa Clara County. “My concern is that there is a lot of potential for problems. They just haven’t happened yet.”
Then again, the four medical parolees at the nursing home in Sunnyvale are being held in a locked unit that also houses psychiatric patients, and are not allowed to leave – thus, their release on medical parole has simply transferred them from a secure prison cell to a secure nursing home environment.
Sources: Los Angeles Times, Sacramento Bee, San Francisco Chronicle, New York Times, www.foxnews.com
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