Christopher Zoukis's Blog - Posts Tagged "compassion"

When President Barack Obama first launched his prison reform efforts some months back, he did so with the commutation of dozens of prisoners who, in large part, had fallen victim to the overly punitive measures required of mandatory minimum sentencing laws. He and a variety of other legislators on both sides of the aisle have been pushing to further reduce the prison population through the adoption of alternative sentencing methods as well as a reformation of the sentencing system.

The over-crowding is due to a variety of complex, but not complicated, factors, each contributing to institutions that are splitting at the seams, and a lack of available resources to fund programs that will assist in prisoner re-entry and re-integration, but also reduce recidivism. But there’s one element in that puzzle that’s rarely discussed: the failure of existing compassionate release programs. “Compassionate release” is generally understood to be the process whereby prisoners may be released from prison (usually conditionally) when extenuating circumstances (not foreseen at the time of sentencing) come into play, of a medical or humanitarian nature.

There are several key elements to the compassionate release discussion that I want to cover in the coming weeks: the terminally ill and the elderly. I’m starting this week with the first issue, because it’s the most obvious candidate as relate to compassionate release programs. But as we well know, in the world of prison bureaucracy, common-sense is rarely a motivating factor for policy.

Compassionate release also takes different forms, taking into account concerns for the safety and emotional well-being of victims as well, and may be restricted to home or hospice confinement. Guidelines introduced in 2012 allow for federally-incarcerated prisoners to be released 18 (rather than 12) months prior to their anticipated death, and also no longer require complete incapacitation. But when families are frequently are the ones that will have to petition for release which, in those cases where deterioration occurs rapidly, means that prisoners may be too far gone to even be transported, especially if they are unable to visit frequently, this may mean that release comes far too late for appropriate transport and/or lucid time with family members. Additionally, in many cases, families are never informed of a prisoner’s medical state, even when it becomes critical.

Yet such releases are rarely granted. But why? Taking the guiding principles behind imprisonment at their most base, we keep people in prison either to rehabilitate them or to punish them. So what purpose does it serve to keep them incarcerated when neither of these goals can be achieved? Any opportunity for “rehabilitation” has passed and they will pose no threat to the public at large, and the concept of punishment in that context is rendered meaningless when their bodies are already enduring tortures worse than any prison could mete out upon them.

Being terminally in prison is quite likely the most cruel of all imprisonments. For those that have been rendered virtually incapacitated –they face duel imprisonment. A humiliation that comes from the fact that they are wasting away, and yet are frequently handcuffed tot eh bed with a bracelet that must be cinched tighter and tighter each day as their skin sags with gravity to reveal bone. This is bone that chafes and peels and bleeds as they face day after day pinioned to a bed. This is what we’re really talking about when we talk about compassionate release for the terminally ill. This it the nightmare future that I’m thinking about when I think of my former cellmate, Sangye Rinchen, facing the cruelty of the fatal degenerative illness, ALS.

There is also a very real consideration to be made regarding the Constitution and freedom from cruel and unusual punishment. As I mentioned in an article on palliative and hospice care in prison, inadequate diagnosis, treatment, and referrals mar the prison health care system so seriously as to render it incompatible with the mere concept of a “system.” Such insufficiencies are magnified ten-fold when it comes to pain management for the terminally ill. It is a difficult enough task in a professional setting, let alone an institutional prison setting where the health practitioners are not trained in palliative care and do not have access to many of the treatments that are central to keeping pain in check. And if you’d ever seen someone in the final stages of something like cancer, you’d know that it is amongst the most excruciating of ends—we’re not talking about pain that hopefully, if we’re lucky, we’ll only have to imagine.

Pop culture can play an important role in informing our knowledge about important social issues that would not normally make it into the public consciousness. For example, the popular series Orange is the New Black did well to remind us all that in fact, time does not stop when you’re imprisoned, and many individuals will become senior citizens behind those walls. In part II of my discussion on compassionate release, I want to talk about some of the specific concerns of elderly prisoners (of which there are many), and how some of these might be mitigated to everyone’s benefit by some form of compassionate release.

But as several writers have pointed out, when it comes to compassionate release for the elderly for non-life threatening conditions, OITNB got it pretty wrong. As noted, prisoners don’t get released because they’re causing too much of a hassle to the system, they just get ignored or inadequately treated—in fact, it’s incredibly difficult to earn such a release. Families and/or lawyers must petition for release, and the process is notoriously arduous. Release plans must be outlined down to the most minute detail, and extensive conditionalities are applied to every release.

In the linearity of life there’s no escaping the fact that as we age and our cells decay, our bodies begin to face daily battles that were inconceivable in our youth. From the random aches and pains that appear seemingly out of nowhere, to the statistical reality that we are trading off a longer human lifespan for the increased likelihood that we will develop at least one cancer in our lifetimes (in the latter case, of course, the types of releases the elderly will be looking at will be based on terminal diagnoses, as referenced in Part I).

Over 246,000 individuals over the age of 50 are incarcerated in America’s prisons, and at our current rates of incarceration, that’s a number likely to continue its expansion. These numbers add serious pressure related to the broad range of chronic medical conditions experienced by inmates, in an environment that is already super-charged with stresses. Justice Department guidelines introduced in 2013 now allow for elderly inmates who have served a minimum of 50% of their sentence, and are experiencing to apply for early release after the age of 65. In the absence of any medical deficits, if they have served 10 years or 75% of their sentence, they too are eligible to apply. But as is so often the case, the Bureau of Prisons is lagging well behind in its implementation of these guidelines, and very few individuals have been released under these new guidelines. Despite the BOP’s repeated assertions that they’ll “get on this” right away, little is happening, and the annual number of qualified elderly prisoners being released remains similar to those prior to the 2013 guidelines.

As with any case up for review, public safety concerns will of course be taken into account. And while the Bureau of Prisons does not track recidivism rates according to age, samplings indicate that aging inmates tend to be re-arrested at a rate 30% less than younger populations.

There’s also an important observation made by a palliative care doctor in the above article, “It’s important for all of us to remember that convicted criminals are sent to prison as punishment—not for punishment” (emphasis added). And that’s a critical distinction that ultimately acts as a deciding line for between barbarism and humanity.

The one thing that OITNB did get right, is that it does make little fiscal sense to keep elderly prisons institutionalized when they pose no risk to public safety, and there are options that are readily available outside prison. Reports indicate that releasing low-risk populations “would save taxpayers up to $40 million a year.” While the annual costs of caring for a prisoner are around $5,500, this can double and triple for older populations.

Another important consideration relates to those inmates who are not necessarily serving life sentences, but whose terms will end when they are already elderly. Currently there are no transition mechanisms in place to deal with the specific concerns of elderly inmates, no halfway houses which can accommodate the various health and mobility issues associated with these aging populations. So upon re-entry, those prisoners will essentially be left to the wolves—and that’s where the OITNB nightmare scenario really plays out.

According to the WHO, we have two choices: either prisons dramatically increase their healthcare budgets to deal with the added stressed inherent to a growing aging prison population, as Medicare coverage does not extend to extend to those individuals over 65 that are incarcerated (an unlikely scenario given the BOP’s track record in health care), or they expedite their compassionate releases as they've promised they will for the last several decades. There isn't a third option in this scenario—and we can’t keep ignoring that fact.

In the last couple of weeks I’ve been talking about compassionate release, specifically as it relates to the seriously ill and elderly. While it doesn’t precisely fit into the same discussion, individuals with disabilities face many of the same challenges. Some prisoners’ disabilities may indeed make them candidates for release, but regardless of their status in that respect, their cases deserve the same type of attention, and require us to look more carefully at conditions of incarceration and how they relate to the health concerns of prisoners.

I try to impress upon people through my work, that the fact that prisoners give up their freedom while incarcerated, they do not give up their rights as humans or even citizens (though certain citizenship rights are removed for the duration of their time in prison). Just as the physician I quoted last week so eloquently summarized, prison is the punishment, not a place within which to be punished. But for those prisoners with disabilities, prison can become a near torturous experience beyond that which your average inmate will ever experience.

Many of the concerns that arise are directly related to the technological and medical insufficiencies of the average prison. When someone with a specific or rare medical condition is taken to hospital, the odds are generally pretty good that somewhere amongst the staff, there will be someone at least somewhat familiar with it. But in the prison setting, the odds are stacked against the disabled. In fact, they might be lucky if the doctor is even at the facility that day, let alone if they have the expertise and wherewithal to deal with anything that goes beyond the knowledge base of a general practitioner.

In the UK, a prisoner’s health condition was so complex and life-threatening (Freidrich’s ataxia) that it was difficult for him to be cared for even in a hospital setting, let alone a prison. It was only a few hours after 35-year-old Daniel Roque Hall entered the facility that he was rushed to a hospital and put on life support. Ultimately the courts ruled that the 18 months he spent in hospital under guard was a sufficient amount of his three-year sentence to have served; Roque Hall’s condition is such that he’s unlikely to live far into his 40s. Roque Hall's condition highlights the more severe risks posed, but even seemingly less restrictive disabilities can present serious challenges and safety concerns.

When an individual with a disability is incarcerated, the state assumes responsibility for their care—like it or not. So if a prisoner is deaf or blind, for example, facilities must provide whatever tools and operations are needed for them to be able to access all aspects prison services.

In a great many cases, this access is non-existent. But even in those prisons make an attempt to accommodate the visual or hearing impaired, the system is fraught with problems. For example, they often rely on fellow inmates to act as guides or interpreters for an individual, but without vetting the inmate or providing any oversight (the ADA does not specify that an interpreter need be trained in American Sign Language). The result is that disabled prisoners are placed in a vulnerable and potentially dangerous positions, being abused and manipulated by those entrusted with their care.

As The Nation pointed out several years ago, President Obama takes great pains each year to publicly issue his support for the Americans with Disabilities Act, but with nary a word dedicated to how this act relates to prisoners. It seemed particularly remiss for him to do so this year, when he has been so boldly extolling his commitment to prison reform. The act extends to prisons just as it does any other state facility in the US. Every year, thousands of complaints from prisons are filed as violations of the ADA. Mobility aids and their lack of appropriate infrastructure for prisoners to utilize them are also serious sources of complaints under the ADA. They may be inadequate for the facility, making it difficult or impossible to navigate or to ensure personal hygiene. All this is to say nothing of the abuses of vulnerable prisoners, the likes of which were revealed earlier this year in Texas.

As is so often the case, prison officials resort to segregation as a solution for any problem. Prisoners with the same medical conditions are excluded from participation in general population activities. Those with mental disabilities are placed in special “wings” where they are prohibited from interacting with inmates outside their unit, for no reason other than providing them with the resources to do so might constitute an inconvenience

Because general population cells are not typically designed with mobility concerns in mind, some facilities resort to placing prisoners in wheelchairs or the like, into segregated housing units (aka solitary confinement). Inmates who may already face serious stigmatization and ostracizing as a result of their disability, then find themselves plunged into further isolation and, often, depression. The cruelty of the practice was recognized earlier this year in California but to date, there seems to be little movement on the part of the Federal Bureau of Prisons to engage in the kind of physical structural changes needed to accommodate a growing population of disabled inmates.