Compassionate release was never designed to release large numbers of people

With help from artist Kevin Pyle, we explain why very few people who apply for compassionate release are approved — even during a pandemic.

by Emily Widra and Wanda Bertram

With the coronavirus pandemic threatening to turn prison sentences into death sentences, many incarcerated people are seeking compassionate release — the release of people who are facing imminent death and who pose no threat to the public — to save them from dying of COVID-19 in prison. Unfortunately, what they, and the American public, are learning is that compassionate release is not a transparent and linear process, but an unpredictably ordered series of obstacles. As artist Kevin Pyle depicts here, these hurdles and delays kill the vast majority of compassionate release petitions:

For a larger version of this graphic, see the web version of this article at https://www.prisonpolicy.org/blog/2020/05/29/compassionate-release/.

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like "medical parole," "geriatric parole", etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

• Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
• Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying "it's safer just to not let this person go."
• Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one.

There is plenty of room for states to improve their compassionate release processes. In our 2018 report Eight Keys to Mercy, we recommended that states:

• Make compassionate release available to all incarcerated people, irrespective of the offenses for which they are incarcerated.
• Streamline all compassionate release processes and set reachable deadlines so that petitioners don't die due to bureaucratic bottlenecks before they are released.
• Limit the ability of prison officials to overrule, on medical grounds, a recommendation of release by medical professionals.

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

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For a longer version of this article, including detailed footnotes, see our website: https://www.prisonpolicy.org/blog/2020/05/29/compassionate-release/