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Pennsylvania: Compassionate Release Reforms Fail to Achieve Aim

by David M. Reutter

Despite a 2008 change in state law intended to make it easier for Pennsylvania prisoners to be granted compassionate release, it is still rare for such releases to be granted.

In 1971, shortly after turning 18, Leon Jesse James was involved in a fatal shooting and sentenced to life without parole (LWOP). Such sentences effectively impose a living death penalty. Advocates of LWOP call it justice for victims, while critics assert that life without parole sentences are overbearing and result in unnecessary punishment that imposes substantial costs on taxpayers when prisoners grow old behind bars. It costs an estimated $872,036 to incarcerate each Pennsylvania lifer over their lifetime – an average of 23.4 years.

Lawmakers revised the state’s compassionate release law, 42 Pa. C.S. § 9777, almost a decade ago as part of a broader criminal justice bill. Julie Hall, a criminologist and gerontologist at Drexel University, believes the change actually made compassionate release more difficult.

The law currently allows prisoners to be released to an outside hospital or nursing facility if their petition is granted by a judge who considers strict criteria; a prisoner must show that he or she is seriously ill and expected by a treating doctor to die within a year, and that treatment in prison is not as good as a hospital or long-term nursing facility.

Release to outside hospice care, including to a prisoner’s home in some cases, requires a showing that he or she is terminally ill and expected to die in the “near future”; that he or she is “not ambulatory,” an undefined term that is interpreted as being unable to walk, or more strictly, bedridden; and that a licensed hospice can provide more appropriate care.

In November 2013, after serving over 40 years, James was diagnosed with pancreatic cancer that quickly spread to his bones, stomach and colon. Despite surgery and chemotherapy, James knew he was dying; he filed a petition for compassionate release in late June 2014 with the assistance of Peter Goldberger, his family’s attorney.

A Court of Common Pleas judge granted the petition on July 8, 2014. Goldberger obtained quick action because he called the judge’s office and explained the urgency. Otherwise, James’ request for compassionate release would have languished.

The petition was not docketed until the day James was released and was still pending when he died at his mother’s home less than three weeks later. Goldberger said the Pennsylvania Department of Corrections should be more proactive in obtaining compassionate releases.

“Otherwise, only the people with the most articulate, aggressive, and demanding family members have a chance,” he stated. That appears to be the case; from 2010 to mid-2015, only nine Pennsylvania prisoners were granted compassionate release. The state currently has an estimated 5,370 lifers who are expected to die in prison, and many other prisoners will not outlive their sentences.

While victims’ advocates are unlikely to support compassionate release, they often forget that families of prisoners are also victims of circumstance.

“These guys got mothers, fathers, wives, sisters, brothers that ain’t never broke the law who love them,” said Kenny Thompson, 63, a Pennsylvania state prisoner who was granted compassionate release in October 2014 after being diagnosed with liver cancer.

Senior Common Pleas Judge Douglas Herman noted that prohibiting prisoners from receiving end-of-life care to ensure a merciful death because of their past crimes “eat[s] at the fringes of Eighth Amendment cruel and unusual punishment.”

An informational guide to compassionate release is available from the Pennsylvania Institutional Law Project, 718 Arch Street, Suite 304 South, Philadelphia, PA 19106; (215) 925-2966; 

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