Compassionate Release from New York State Prisons: Why are So Few Getting Out?

New York's death rate per 1,000 for the 3-year period from 1994 to 1996 was 5.6 inmate deaths as compared with a national rate of 3.1 inmate deaths, a rate 80 percent higher than the national average. See Hammett T. Harmon P. , and Maruschak L. , 1996–1997 Update: HIV/AIDS, STDs, and TB in Correctional Facilities (Washington, D.C.: National Institute of Justice, NCJ 176344, July 1999): at 11 tbl. 5.

See N.Y. Exec. Law § 259-r (McKinney 1998). Most inmates in New York State prisons have been given indeterminate sentences that include minimum terms, before which the inmate cannot be released on parole, and maximum terms, after which the inmate must be released. In addition to the possibility of parole, inmates can be released before their maximum terms based on earned good time credit. If they do not violate the prison rules, they could reduce their maximum terms by one-third through earned good time credit. However, new legislation has changed this sentencing model, requiring a determinate sentence, that is, a fixed term rather than a minimum-maximum range, and mandating that the inmate must serve at least six-sevenths of the sentence before release based on earn good time credit. Release based on the inmate's good time is known as conditional release. In contrast to this general sentencing scheme, medical parole allows dying inmates to be released prior to their minimum term.

See Memorandum “Compassionate Release Activity Report” from Joan Smith, Medical Classification Analyst, Department of Correctional Services, to Dr. Lester Wright, Associate Commissioner/Chief Medical Officer, Department of Correctional Services (Feb. 9, 1999) [hereinafter “Compassionate Release Activity Report”]. The New York compassionate release program consists of two aspects: The Medical Parole Law authorizing release of inmates prior to their minimum sentence, and Full Board Case Review (FBCR), infra p. 217, permitting the expedited review due to a significant change in health status of inmates previously denied parole. From June 1992 through December 1998, only 193 inmates bad been released through medical parole, and an additional twenty-two inmates had been paroled for medical reasons pursuant to the FBCR process.

See N.Y. Exec. Law § 259-r.

Id. § 259-r(1)(a).

See id. (“murder in the first degree, murder in the second degree, manslaughter in the first degree, any offense defined in article one hundred thirty of the penal law [sex crimes] or an attempt to commit any of these offenses”).

Id. § 259-r(2)(a).

See id.

Id. § 259-r(2)(b).

Id. § 259-r(1)(a).

Id. §259-r(4).

See New York State Division of Parole, Policy and Procedure Manual, § 8355.00 (Full Board Case Review) (1994).

Id. at § 8355.00 III(F).

The Department of Correctional Services (DOCS) prepares monthly reports on its activities concerning compassionate release. Although it did not initially record its periodic review process, monthly figures are included in these reports from 1994 to present.

Approximately 87 percent of all deaths within DOCS are classified as “natural” or “AIDS” (acquired immune deficiency syndrome); the remaining deaths are due to homicides, suicides, accidents, or “unknown.” Inmates whose deaths were classified in these latter categories would not be candidates for compassionate release.

See N.Y. Exec. Law § 259-r(1)(a).

Department of Correctional Services, New York State, Hub System: Profile of Inmates Under Custody on January 1, 1998 (Albany: Department of Correctional Services, 1998): at 26–27.

See text, infra pp. 225–26.

1997 Crime and Justice Annual Report (Albany: Division of Criminal Justice, 1999): § VII, p. 211, tbl. 1.

See “Decreases in AIDS-Related Mortality in a State Correctional System—New York 1995–98,” Morbidity and Mortality Weekly Report, 47, no. 51/52 (1999): 1115–17, at 1115 tbl. 1.

The death rate per 1,000 inmates in all state prisons due to all causes was 3.14, 3.11, and 3.08 for 1994, 1995, and 1996, respectively. See Hammett Harmon , and Maruschak , supra note 1, at 11 tbl. 5. The comparable rate for New York State in 1996 was 4.82. See id. at tbl. 6.

New York State Department of Health (DOH) officials receive discarded blood from DOCS tests of newly admitted inmates. Although basic demographic information is available on the source of the blood, no patient-identifying data are provided to DOH. Consequently, the results of the tests are not provided to DOCS, and no patient authorization is sought or required.

See Hammett Harmon , and Maruschak , supra note 1, at 10 tbl. 4.

Seventy-nine percent of the forty-eight state jurisdictions reporting had male inmate seroprevalence rates under 2 percent, and 77 percent of the states had female seroprevalence rates under 3 percent. See Hammett Harmon , and Maruschak , supra note 1, at 10 tbl. 4. Similar results were reported in 1995. See Bureau of Justice Statistics Bulletin, HIV in Prisons and Jails 1995 (Washington, D.C.: Department of Justice, NCJ 164260, Aug. 1998): at 2 tbl. 2 (40 of 49 state prisons had a known human immunodeficiency virus (HIV) seroprevalence rate of 2 percent or less, and 29 of 49 state prisons had 1 percent or less).

See Hammett Harmon , and Maruschak , supra note 1, at 12 tbl. 6. Data collected by the Bureau of Justice Statistics for 1995 on AIDS-related prison deaths illustrates similar results—most state mortality rates were less than 1 per 1,000 inmates (37 of 48 jurisdictions reporting), and nearly all had rates under 2 (45 of 48 jurisdictions), whereas the New York State prison death rate from AIDS in 1995 was 3.8. See Bureau of Justice Statistics Bulletin, supra note 24, at 5.

This analysis is based on surveillance data maintained by DOCS for all HIV-infected inmates known to DOCS during the period 1994–1998.

Although beyond this article's scope, litigation in which I am involved questions whether HIV-infected inmates are receiving appropriate care within New York State prisons. But even if the care is not consistent with community standards, many HIV-infected patients are on antiretroviral therapy, and this therapy, whether optimal or not, has slowed the progression of their illness.

This estimate is based on a personal evaluation of DOCS and Commission on Corrections data base records for each patient. Where ambiguity arose, I did not count the death as AIDS related.

Hammett Harmon , and Maruschak , supra note 1, at 12 tbl. 6.

In DOCS materials, the department asserted that the regional medical units would reduce the lengths of stay of hospitalized patients and diminish the cost of providing security staff for these patients, thereby reducing the hospitalization costs for its patients.

Involvement of outside hospice agencies in a prison hospice program has multiple benefits. First, if the outside hospice staff are involved in informing the patient about the program and securing the patient's consent to enroll, this practice ensures that the prison staff responsible for providing medical care are not coercing the patient to participate in order to reduce the need for required medical care. Second, it brings in experienced hospice staff to train the prison staff about the elements of a hospice program and to assist in delivery of services that normally are not available from existing prison staff. Third, it provides the inmate with professional individuals not associated with the prison. Thus, the prisoner can share with these professionals very sensitive information and personal feelings that the inmate may be reluctant to communicate to anyone associated with prison authorities.

See N.Y. Exec. Law § 259-r(2)(a) (McKinney 1998).

Id. § 259-r(1)(a).

See 1995 N.Y. Laws 3.

See 1998 N.Y. Laws 1 (amending N.Y. Penal Law § 70.02 & N.Y. Correct. Law § 149-a).

See Governor George Pataki, Veto Message No. 2 (July 6, 1999), available at <http://www.senate.state.ny.us>.

20 C.F.R. pt. 404, subst. P, app. 1, § 14.00(D)(8) (1999).

Vt. Stat. Ann. tit. 28, § 502a(d) (1998).

Dubler N.N. and Heyman B. , “End-of-Life Care in Prisons and Jails,” in Puisis M. , ed., Clinical Practice in Correctional Medicine (St. Louis: Mosby, 1998): 359–64, at 359.

See id.

Cal. Penal Code § 1170(e)(2) (West Supp. 1999).

42 C.F.R. § 418.3 (1998).

Okla. Stat. tit. 57, § 332.18(B) (Supp. 1999).

Fla. Stat. Ann. § 947.149(1)(a)–(b) (West 1996).

See Dubler and Heyman , supra note 39.

1992 N.Y. Laws ch. 55, § 289, adding § 259-r(2).

The liability of providers remains a theoretical concern because there has been no litigation about the statute in New York State courts. Because no serious criminal behavior has resulted from any parolee, no opportunity has arisen to sue the state for actions by a parolee. But providers' concerns about legal responsibility for their medical decisions arise throughout their medical practice and even include the potential of criminal liability, such as physicians' decisions to prescribe pain medication to terminal patients. See Alpers A. , “Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying,” Journal of Law, Medicine & Ethics, 26 (1998): 308–31, at 309.

See “Compassionate Release Activity Report,” supra note 3.

From February 1996 through June 1998, 58 percent of the inmates who died in the Coxsackie Regional Medical Unit had lengths of stays under sixty days and 38 percent had stays under thirty days.

See Jost T.S. , “Public Financing of Pain Management: Leaky Umbrellas and Ragged Safety Nets,” Journal of Law, Medicine & Ethics, 26 (1998): 290–307, at 294.

See id. at 294–95.

See 20 C.F.R. pt. 404, subst. P, § 14.