By PATRICK HUGHES | April 22, 2020

A Wisconsin prisoner advocacy group recently asked Gov. Tony Evers to take action to prevent inmate deaths from COVID-19. One recommendation was to use “compassionate release” to free all inmates over the age of 65 and all inmates over the age of 50 who are at risk due to underlying health conditions.

Although the concerns motivating this request are legitimate and compassionate release should almost certainly be more widely used after we have moved past the pandemic, now is not the time.

Wisconsin statutes governing compassionate release will not allow the Department of Corrections (DOC) to free inmates en masse. Nor would doing so be in the best interests of offenders or the public.

Compassionate release is a deliberate legal process designed to evaluate an elderly or chronically ill inmate’s condition and circumstances. The primary justification for release is a public benefit, not the inmate’s. Under current conditions, a rushed expansion of the program could release vulnerable inmates without adequate support systems and place further stress on a health care system already facing unprecedented challenges.

Many Wisconsin inmates would not meet the eligibility requirements because of the seriousness of their criminal conviction, length of time spent in prison or health conditions. The risk of being infected has not met the criteria for compassionate release in the past. Inmates with serious medical conditions or illnesses routinely remain in custody, receive treatment at a clinic or hospital and return to prison.

There are specific statutory requirements for granting compassionate release, The inmate:

• Must have been convicted of a felony lower than Class B and must meet one of the following criteria:
• Be 65 years old and have served five years of their prison term;
• Be 60 years old and have served at least 10 years of their prison term;
• Have an “extraordinary health condition” such as “advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution.” This is open to inmates of any age.

The most recent data available (December 2018) indicates that only around 6.2% of the prison population would meet the age-based eligibility requirements. Even fewer inmates would be eligible due to Class A or B felony convictions or because they have not served the minimum number of years.

The number of prisoners experiencing “extraordinary health conditions” is difficult to estimate because the DOC does not routinely provide information on inmates’ health conditions. Many are treated for cancer, heart disease, HIV, diabetes and other serious chronic conditions without requiring modification of their sentences. Most often this care occurs at institutional health clinics, though inmates are also transported to offsite healthcare facilities when necessary.

Even when inmates do meet the criteria for compassionate release, it can be difficult for the DOC to find suitable living and health care arrangements for them. They may lack family or financial support. Nursing homes, assisted living facilities and hospices can be reluctant to accept individuals from the prison system. Sex offenders, who make up approximately 25% of the prison population, are a particularly difficult problem. It’s a challenge to place them under normal circumstances, and assisted living arrangements can be even more difficult to facilitate.  

There are other obstacles to applying widescale compassionate release. Normally, inmates or their attorneys would initiate the process, but in this case the DOC would probably need to identify eligible inmates, assist them with filing petitions, and schedule and hold hearings. Doctors, many of whom are already focused on the battle against COVID-19, would need to examine inmates to support the claim of an extraordinary health condition. It could also be difficult to hold hearings inside institutions operating with restricted inmate movement and limited staff due to COVID-19.

Sentencing courts that would normally rule on releases have significantly slowed or ceased operations. And release plans would need to be finalized to transfer inmates to community supervision.

Releasing elderly inmates to live with family members will make social distancing difficult and would place strain on families that already may be struggling with the fallout from the pandemic. Inmates without family support would be forced to find housing with limited financial resources and reduced support from social welfare agencies and charities strained by the crisis. This may increase the risk of spreading the virus and undermine chances for successful reentry.

Inmates with extraordinary health conditions would face these challenges as well as the complications associated with entering the health care system in a time of crisis. Hospitals treating COVID-19 patients have been canceling non-emergency treatment and have limited capacity for providing critical care. Introducing hundreds of new patients with chronic illnesses would only add to the strain.

It is also unlikely the DOC would be able to locate nursing homes and hospices willing to add patients requiring palliative care at the height of the pandemic. Inmates with serious health issues should remain in prison where their routine care can be continued as long it is safe and isolation can be maintained to the fullest extent possible.

Compassionate release is a policy that should be evaluated and improved once the COVID-19 crisis eases. The cost of prisoner health care falls entirely on state taxpayers, and compassionate release generally applies to those whose conditions generate the highest costs. A 2018 investigation by the Milwaukee Journal Sentinel found that the program is underutilized (only six inmates were released in 2017) and that increasing its use could provide taxpayer savings while maintaining public safety.  

With the benefit of hindsight, it would have been wise for Wisconsin to have used this program more extensively to reduce prison overcrowding and provide vulnerable inmates with stable environments for release. But given the limited social resources available in the midst of a societal lockdown and the existing demands on the legal and healthcare systems, increasing releases at this time would be irresponsible.

Read the article here.

Patrick Hughes is a Badger Institute corrections consultant. He served as assistant deputy secretary and division administrator in the Wisconsin Department of Corrections. Permission to reprint is granted as long as the author and Badger Institute are properly acknowledged.