Aging, sick and incarcerated: The need for compassionate release

The article you are about to hear has recently appeared on Truthout website and carries the title of AGING, SICK AND INCARCERATED: THE NEED FOR COMPASSIONATE RELEASE.

Mary Ziman already had debilitating fibromyalgia and, unable to work, was on permanent disability. Then she was arrested and sentenced to 27 years in federal prison for conspiracy to distribute marijuana, methamphetamine and cocaine, charges she says stemmed from fabrications by a woman with mental illness caught with drugs and a gun. That was 17 years ago. Now 67 years old, Ziman has three cancerous spots on her left lung, requires the use of three inhalers and has only 51 percent lung capacity.

She is also blind in one eye and has a cataract in the other. In March 2016, after repeatedly complaining to medical staff at the federal prison in Victorville, California, she was hospitalized for a kidney infection stemming from an untreated urinary tract infection. She spent 10 days in the hospital where tests found that she suffered from anemia, arthritis, a hernia and problematic potassium levels affecting her heart.

Additionally, Ziman now requires hip and knee surgery. In April, not long after her release from the hospital, Ziman suffered another devastating blow. The Office of the Pardon Attorney denied her request for clemency, or a commutation lessening the length of her sentence and allowing her to return home early. There is no appeal for such a denial. Instead, Ziman must wait an entire year before she can submit another request for clemency.

However, Ziman does have some hope for another route forward: She has filed a petition for compassionate release, which, if granted, would allow her to return home to her nine children, 28 grandchildren and two great-grandchildren.

Compassionate release is a policy that allows for the early release of incarcerated people who are aging or terminally ill so that they can die at home surrounded by loved ones. The policy is used very sparingly: In 2013, the Office of the Inspector General found that, on average, only 24 people are granted compassionate release each year.

"We found that the BOP or Bureau of Prisons' compassionate release program had been poorly managed and implemented inconsistently," said Michael E. Horowitz of the Office of the Inspector General in his testimony before the US Sentencing Commission in February 2016. The poor management and inconsistent implementation has resulted in those who are eligible not being aware of the program and those who are terminally ill dying before their requests are considered.

According to Horowitz, "Specifically, we found that the BOP did not have clear standards as to when compassionate release is warranted and whether particular medical or non-medical circumstances qualify for consideration. BOP staff therefore had varied and inconsistent understandings of the circumstances that warrant consideration for compassionate release."

In August 2013, the Bureau of Prisons expanded the criteria for compassionate release, reducing the eligibility age from 70 to 65 years old and the time that must have been served from 30 years to either 10 years or 75 percent of the applicant's sentence (whichever is less). The proposed change still leaves the initial filing in the hands of the director of the BOP. A person can write a request to the director for consideration, but cannot initiate the process on their own.

Yet the expanded criteria have not resulted in a significant increase in releases. In its 2015 report, the Office of the Inspector General noted, "We found that only two inmates had been released under this new provision." That year, aging people made up 26 percent of federal prisoners at minimum-security prisons, 23 percent of low-security prisons and 33 percent in medical prisons.

Ziman is far from the only person who has experienced the frustratingly slow process of receiving medical care in a US federal prison. As reported earlier, even higher-profile prisoners have experienced harmful delays in medical treatment. Stewart, an acclaimed attorney who entered prison in 2009, waited a year and a half to receive approval for surgery for a tipped bladder. By the time she got to the operating room, she recalled that the surgeon said that hers was the worst condition he had ever seen. During her 23-and-a-half years in prison, Hardy, who entered prison in her mid-40s, saw her health and mobility decline. When she was told that she had been granted compassionate release, the 71 year old had a heart attack and, instead of making preparations to leave prison, had to be rushed to the hospital. She was eventually released and now lives with her family in North Carolina.

Linda Byrnes is still in prison. She has spent 20 years in federal prison for conspiracy to distribute marijuana. In Byrnes' home state of Michigan, marijuana for medical purposes has been decriminalized and is now regulated. Patients can cultivate their own medical marijuana or designate a caregiver to do so. This year, advocates are also undertaking efforts to fully legalize marijuana. But none of that will make a difference for Byrnes, who turns 70 this year.

Angie Jenkins, who received clemency in December 2015 explains that even at the best of times, prison protocol makes it difficult to obtain health care in a timely fashion. Inside prison one cannot visit the doctor at any time. Instead, a person must go to sick call, which is only available certain days. A person must arrive at sick call at 6 am, fill out a form and wait in line for an undetermined amount of time.

"Some women have to wait all the way till afternoon," Jenkins recalled. Instead of examining the patient, medical staff ask a few questions, then schedule a follow-up appointment, which may be days or weeks away. If medical staff is unable to see her that day, then a woman must return and go through the process again the next day. Jenkins added that they're never going to give her the treatment she needs inside and that she needs to get out and get treated.

Meanwhile, in Congress…

Congress members have recently introduced federal bills that may enable the release of older people like Ziman and Byrnes from prison. In the House of Representatives in June 2015, Representatives Jim Sensenbrenner and Bobby Scott introduced the Safe, Accountable, Fair, Effective (SAFE) Justice Act, which expands the policy of compassionate release. If passed, the act would allow the person in prison to petition the courts themselves rather than wait for approval by the BOP. Meanwhile, in the Senate, the Sentencing Reform & Corrections Act of 2015 would make permanent a pilot program for elderly people's release.

But neither bill is far enough along in the legislative process to make an immediate difference. The SAFE Justice Act was referred to committee in June 2015; in October 2015, the Sentencing Reform and Corrections Act was reported out of committee, but no further actions have been taken.

AJ/SS