In summary

Overly narrow criteria limit the number of seriously ill and dying people the courts can consider for compassionate release from prison. Assembly Bill 960 will ensure that sick and dying prisoners who do not pose a risk to public safety can be considered for release.

By Daniel Landsman, Special to CalMatters

Daniel Landsman is the deputy director of state policy for FAMM, a nonprofit that works to create a more fair and effective justice system.

While lawmakers in Sacramento work to address rising concerns about crime, they should not stop seeking opportunities to pursue meaningful, evidence-based criminal justice reform. One place to start would be with sick and dying incarcerated people. 

People who are incapacitated or nearing the end of their lives are the most expensive to incarcerate and the least likely to reoffend. California law permits courts to resentence certain people who meet strict criteria on time served so that they may live their final months outside a prison.

But this system, referred to as compassionate release, is hampered by eligibility criteria that are too narrow and by a process that funnels meritorious cases through a single actor.

People are eligible for compassionate release only if they have a terminal illness likely to result in death within 12 months or are permanently medically incapacitated and require 24-hour care. These overly narrow criteria limit the number of seriously ill and dying people the courts can consider. 

For example, accurately predicting how much time a person has left to live is elusive; the science is inexact and predictions unreliable. Furthermore, physicians often are reluctant to prognosticate and, when they do, they more often than not significantly overestimate the time remaining.

According to our analysis of California Department of Corrections and Rehabilitation data on compassionate-release applications, 31% of all incarcerated people who began the process between January 2015 and April 2021 died before it could be completed.

In addition to unduly strict eligibility criteria, the decision-making process affords too much discretion to the secretary of the California Department of Corrections and Rehabilitation. Under the law, no one medically eligible for compassionate release can be referred to the courts without explicit approval from the secretary. This means that a single individual can decide a dying person is unfit for release and deny them their day in court. While courts must adhere to case law and due process, the secretary has broader discretion. This threatens to give undue weight to the underlying offense and discount a person’s medical state or rehabilitation.

Our analysis of corrections data found that the secretary denied more than one in four compassionate-release applications. Only 17% — just 53 people — of all incarcerated people who began the process were released.

California can do better. We have models. For example, the federal compassionate-release law considers people diagnosed with a condition that has an “end of life trajectory” to be terminally ill and thus eligible for compassionate release. 

States including Alabama, Illinois, Michigan and Oregon have broader definitions of incapacitation than California’s. For example, rather than those requiring round-the-clock care, Alabama considers people eligible if they are unable to complete one or more activities of basic daily living (such as eating or using the toilet). 

Eliminating the secretary’s ability to veto worthy cases would ensure that the courts consider and rule on every person deemed medically vulnerable by corrections department medical professionals. 

That is not a get-out-of-jail-free card. Rather, it ensures that the incapacitated and dying get a proper judicial review.

Assemblymember Phil Ting, a San Francisco Democrat, seeks to improve compassionate release and allow California to focus its resources on those who need it most. Assembly Bill 960 will save our state precious dollars by ensuring that the sick and dying who do not pose a risk to public safety be considered for release.

Californians are worried about crime. Wasting finite correctional resources on people who are too sick to pose a risk to public safety will not help. The Legislature should pass AB 960 and continue to focus its attention on reforming the criminal justice system in ways that are meaningful and informed by public safety.

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