California’s Supreme Court has held that prisoners who are denied early release under the state’s compassionate release statute have a right to appeal the denial, reversing an appellate court decision that found prisoners had no such right.

The state’s high court ruled unanimously on March 5, 2015 in favor of prisoner Alden Loper, 61, who suffered from heart problems, diabetes and high blood pressure according to his attorney, Raymond M. DiGuiseppe. Loper was eventually released on Post Release Community Supervision (PRCS) on June 24, 2015.

He was originally sentenced in February 2011 to six years in prison after pleading guilty to felony charges stemming from underpayment of more than $100,000 in taxes and worker’s compensation premiums for his tree trimming business. But in May 2012, doctors at the Richard J. Donovan Correctional Facility issued an internal request for Loper to be granted compassionate release.

According to that request, Loper suffered from “uncontrolled hypertension, advanced chronic obstructive pulmonary disease (COPD) and severe coronary artery disease.” Although he was able to live normally, the doctors said his “life expectancy is short and possibly less than 6 months,” and he was “at increased risk of sudden cardiac death” with his “condition ... likely to worsen.” In a follow-up letter to the court, the California Department of Corrections and Rehabilitation (CDCR) wrote that “[p]hysicians have determined that he has less than six months to live.”

San Diego Superior Court Judge Laura H. Parsky ordered a second opinion and, in response, the chief medical executive at the prison stated that Loper’s condition “remain[ed] stable,” that his hypertension had improved and he was “not presenting with any symptoms suggestive for acute congestive heart failure.” Nevertheless, the letter continued, he was “an ill individual with disease processes that will continue to progress, despite treatment, leading to his eventual demise.” The letter did not provide a definitive answer as to whether Loper would die within six months.

The court denied the CDCR’s request for Loper’s release based on the law’s requirement that a prisoner is eligible for compassionate release only if his or her death will occur in less than six months. Loper appealed to the 4th District Court of Appeal, which dismissed the case in 2013 on the grounds that only the CDCR or parole board could appeal the trial judge’s decision, not the prisoner.

In reversing the appellate court, the California Supreme Court held that because denials of compassionate release directly affect prisoners’ rights, they are entitled to challenge them. Justice Kathryn M. Werdegar, writing for the Court, cited a number of cases as precedent and concluded that “all demonstrate that a defendant may appeal an adverse decision on a postjudgment motion or petition if it affects his substantial rights, even if someone else brought the original motion.”

“When the proceeding is properly initiated by prison or parole authorities as required by law,” Justice Werdegar wrote, “the trial court’s decision produces an appealable order that may be appealed by the prisoner.” See: People v. Loper, 60 Cal. 4th 1155, 343 P.3d 895 (Cal. 2015).

The high court remanded the case to the 4th District Court of Appeal for reconsideration, but by the time that court received the matter a second time, Loper had already been released and the panel dismissed the case as moot. In a supplemental brief, Loper argued the appellate court should still examine his claims, because “[i]f an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue.” However, the Court of Appeals dismissed the case in August 2015, on the grounds that Loper’s release was conditional on facts, not as a matter of continuing public interest. See: People v. Loper, 2015 Cal. App. Unpub. LEXIS 5904 (Cal. App. 4th Dist. Aug. 20, 2015).

Regardless, the California Supreme Court’s ruling is likely to have widespread impact on prisoners who are more frequently being recommended for compassionate release as one means of reducing overcrowding in California’s prisons. The CDRC approved compassionate release for only four prisoners from 2007 through 2010; from that time through the first 10 months of 2013, more than 90 applications were approved.

“We found that about 1,300 out of 170,000 inmates – less than 1 percent – were costing the state around $200 million a year,” pointed out California state Senator Mark Leno. Still, from 2007 through the first 10 months of 2013, the state approved only 20% of the 488 requests it received for compassionate release.

“Compassionate release doesn’t happen often, and when it does, the guys usually don’t live that long when they get out,” stated prison chaplain Keith Knauf. “But at least they’re with their families.”

Seven Fama, a staff attorney with the Prison Law Office in Berkeley, said the CDCR’s compassionate release program is full of complexities, not the least of which is the legal requirement that a prisoner have less than six months to live.

“For example, with end-stage liver disease the very name implies that the condition will be terminal,” Fama explained. “But doctors won’t generally declare that the inmate has six months or less to live.... I’ve been told more than once that the end may come in six months or it may come in three years.”

There are other obstacles. Another requirement of the law states that the parole board and the undersecretary must examine a prisoner’s disciplinary record, criminal history and the impact his or her crime may have had on the victims or their families before granting final approval to a compassionate release request. And even if the parole board approves a prisoner’s petition, a Superior Court from the county where the prisoner was sentenced must review the request.

“This is one of those areas of the law that doesn’t get much attention,” said attorney L. Richard Braucher, who has represented several prisoners seeking compassionate release. “These people are pretty invisible.”

Braucher successfully defended Carl Wade, 66, whose parole board recommendation for compassionate release was denied by Lake County Superior Court Judge Andrew S. Blum. The judge stated for the record that Wade was “not crippled” and might “wheel himself out the front door” to have a beer with his friends. Braucher’s successful appeal prompted the 1st District Court of Appeal to call Judge Blum’s assessment a “fanciful speculative” abuse of discretion. See: People v. Wade, 2012 Cal. App. Unpub. LEXIS 3711 (Cal. App. 1st Dist. May 17, 2012).

There are also administrative hurdles for prisoners to overcome. For example, Marvin Chaplin was eligible for parole when he was diagnosed with stage four lung cancer and approved for compassionate release. But because his sister lives in Section 8 housing, he was prohibited by federal law from living with her following his release from prison.

Of course, if a prisoner is truly terminally ill, the time required to fulfill all of the various administrative steps necessary to secure compassionate release might render the request tragically moot.

For example, Robert Lee Dana was serving seven years to life when he learned that he had terminal cancer. The doctor gave him six months to live and the CDCR granted his request for compassionate release. Yet Dana was still imprisoned when he died three-and-a-half months later. For many prisoners who seek compassionate release, the process is not compassionate and does not lead to their release.

Additional sources: www.callawyer.com, Li Lozada Law Group, www.latimes.com

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