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Apr 7th, 2015
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Resource: J O'meara, Gregory. (2010) article in this week’s Electronic Reserve Readings

Write and 1,050- to 1,400-word paper that summarizes the

arguments for and against confining sick and older adult prisoners in jail.

  • Which of these arguments do they think have merit?
  • What values underlie each position?
  • How does medical parole or release fit into this discussion?
  • Provide alternative solutions to the problem and discuss their overall impacts.

Format your paper consistent with APA guidelines.

Here is the Article Article


Current sentencing and parole
policies can be characterized by what John Pratt terms penal populism. This
approach to criminal justice includes widespread increase in police surveillance
and arrests, elimination of rehabilitation as a correctional goal, and an
unprecedented expansion of the prison population. Although crime rates have
been declining appreciably for some time (a decline that preceded the explosion
in prison populations), it has become politically expedient to ignore policy
suggestions based on statistical analysis and focus rather on the uninformed
beliefs of the populace. Because the prison system is backed by a bureaucracy
of its own, it continues to grow according to an internal rationality that
favors constant expansion according to a decidedly retributive ethos.

Because so much of prison life
occurs far from the public’s view, changes in policy and implications of
longheld truisms are rarely noticed by those who are not directly affected by
the penal system. Just as Victor Hugo’s fictional Jean Valjean could be largely
forgotten in the bowels of prison, women and men sentenced to correctional facilities
largely fall from consciousness unless or until benign neglect is disturbed by
other factors.

Today, that benign neglect in
Wisconsin has been disturbed by the financial constraints of maintaining the current
prison population. Between 2000 and 2007,Wisconsin’s prison population
increased by 14 percent. The State Corrections budget increased by 71 percent
from 1999 to 2009.9 Wisconsin’s health care costs for adult prisoners leapt
from $28.5 million in 1998 to $87.6 million in 2005. The Wisconsin Department
of Corrections estimates that it will cost $2.5 billion between 2009 and 2019 to
reduce overcrowding and accommodate the expansion of the prison system. As a
result of looming costs, Wisconsin, like other states, has begun to reconsider
implications of previously popular law-and-order policies.

One product of Wisconsin’s
reconsideration is a recent change in compassionate release standards for
inmates in state correctional facilities. This legislation both expands the
category of those eligible for sentence modification and streamlines the
procedure. Although the law has much to recommend it, issues unaddressed may
prove costly—notably the unintended consequences of placing financial burdens
on the families or communities to which these prisoners are released in a bleak
economic climate.

The idea of compassionate release
of elderly and ill inmates is not new. In 1994, Professor Marjorie Russell published
a consideration of the compassionate release and medical parole programs of the
fifty states and the District of Columbia. Only three jurisdictions, the
District of Columbia, Kansas, and Maine, had no programs for the parole or
release of terminally ill prisoners. Russell noted that

[t]wenty-two states reported that
they have no compassionate release program, but each has at least one method by
which a terminally ill prisoner can seek release. These methods included: commutation
of sentence through the administrative procedures of the DOC with no specific
provision relating to the terminally ill; general claim for executive clemency;
and normal parole application procedures, where the prisoner’s medical
condition is only one factor to be considered in the ordinary parole decision.

Thus, almost twenty years ago,
states recognized a need for this safety valve even without providing a specific
statutory grounding for it. Professor Russell maintained that compassionate
release statutes address the concerns of both inmates and the states far better
than do more generalized administrative procedures or clemency petitions. After
laying out the shifts in eligibility standards and procedure between
Wisconsin’s old and new compassionate release laws, I will turn to broader
concerns that fall under the public-interest calculus called for in the
statutes. In addition to usual criminological considerations, I suggest that
the word compassionate will need to do heavy lifting if this law is to make a
difference in the lives of inmates.

Old Compassionate Release Law

By way of background, Wisconsin’s
current sentencing structure is relatively new; it was overhauled between 1998
and 2003 under the provisions of the state’s Truth in Sentencing legislation.
Under that law, parole was abolished; felons sentenced to prison are now given
a bifurcated (two-part) sentence in which the sentencing judge specifies an
amount of time a convicted felon will serve in prison and an amount of time the
person will serve in the community on extended supervision. Under the original
provisions of Truth in Sentencing, most inmates, with approval of the program
review committee at their respective institutions, could petition the
sentencing court for release to extended supervision in certain extenuating
circumstances. However, inmates serving life sentences were not eligible to

Eligible inmates included both the
elderly and the gravely ill. With regard to the elderly, the program review committee
at the housing institution could consider petitions filed by prisoners either
60 or 65 years old who had served substantial portions of their sentences. In
addition to these petitions, those who had a “terminal condition” could file
for modification. The statute defined “terminal condition” as

an incurable condition afflicting a
person, caused by injury, disease, or illness, as a result of which the person
has a medical prognosis that his or her life expectancy is 6 months or less,
even with available life-sustaining treatment provided in accordance with the
prevailing standard of medical care.

Inmates who fit within either category
could then petition the program review committee of their correctional institution,
requesting modification of the bifurcated sentence. Any request for modification based on a
terminal condition required affidavits from two physicians. The institution’s
program review committee then reviewed each petition filed and decided if the
“public interest” (a phrase undefined in the statute) would be served by modifying
the inmate’s sentence. Only if the program review committee found such interest
could the inmate’s petition be referred to the sentencing court. The statute provided
no right to appeal the program review committee’s denial of a petition for

At the sentencing court hearing,
the petitioner, the district attorney, and any victim of the crime for which
the petitioner was sentenced were permitted to be heard. The petitioner bore
the burden of proving by the greater weight of the credible evidence that
modification of his or her sentence would be in the public interest.32 If the
court so found, any reduction in the incarceration portion of the bifurcated sentence
was balanced by a like increase in the extended supervision portion so that the
total length of the original sentence did not change. The court’s decision
could be appealed by either the petitioner or the state.34 Inmate petitioners had
the right to be represented by counsel, including appointment of a state public
defender. In its study of the new legislation, the Legislative Fiscal Bureau of
Wisconsin provided no evidence describing whether or how often this law
resulted in the release of inmates from confinement.

New Compassionate Release Law

Wisconsin’s new compassionate
release law simplifies earlier procedures and expands the class of inmates who can
petition for sentence modification. The statute retains the distinction between
those petitioning for compassionate release because of age and those who
petition for reasons of ill health. The age qualifications track the previous legislation;
however, the new provision no longer bars petitions by elderly inmates
sentenced to life imprisonment. The
second category of “extraordinary health condition” may signal greater
eligibility to petition under the law. Anyone claiming “advanced age,
infirmity, or disability of the person or a need for medical treatment or services
not available within a correctional institution” may now petition for
compassionate release.

In terms of procedural differences,
the law shifts the locus of decision making from the sentencing court to a newly
created administrative panel, the Earned Release Review Commission, which
replaces the parole board. The Commission, part of the executive branch of
state government, consists of eight members who have “knowledge of or
experience in corrections or criminal justice.” The chair is nominated by the
governor and subject to state senate approval; other members are appointed by
the chair.

Inmates meeting eligibility
criteria may submit petitions to the Commission. Upon receipt of a petition,
the Commission sets a hearing to determine whether the public interest would be
served by modifying the sentence as requested. The District Attorney from the
sentencing jurisdiction and any victim of the inmate’s crime must be notified
and can be present for any such hearing.

Again, inmates must prove that
granting their petition would serve the public interest by the greater weight
of the credible evidence. For inmates who meet that burden, the Commission must
modify their sentence in the manner requested. As was the case under the
previous legislation, if the petitioner prevails and is granted a modification,
the state may appeal that decision to a reviewing court (which may overturn the
determination using an abuse of discretion standard). By contrast, inmates can only
appeal from the denial of their petition under the common law right of
certiorari. Again, those petitioning for modification are afforded the right to
counsel, including appointment of a state public defender. Echoing previous
law, reduction in an inmate’s term of confinement must be balanced with a like
increase in the period of extended supervision so that the total length of the
sentence imposed remains the same.

Initially, one must applaud
Wisconsin’s willingness to revisit parts of a recent sentencing overhaul to
address difficulties in the current system. Although the proposed changes are
hardly sweeping in scope, they do offer real possibilities of change. By
removing a level of bureaucracy and shifting decision making from elected
judges to a politically appointed commission, Wisconsin may speed up the
petitioning process and improve results. In an era when judicial elections are
marred by often unsupported allegations that opponents are soft on crime, the
decision to release an elderly or infirm prisoner seems best shielded from
obvious political posturing. That said, the Commission must still be responsive
to the citizens of the state.

Public Interest Considerations

To determine the public-interest
standard that governs decisions to grant or deny release, it is helpful to
return to standard sentencing goals. Presumably public interest includes
consideration of specific deterrence of the inmate and protection of the
public, retribution for past wrongs, and an inmate’s efforts at rehabilitation
while incarcerated. The literature also indicates that public interest includes
saving the criminal justice system money while not imposing an undue burden on
the communities to which the inmates will be released. Finally, it seems that
consideration of the public interest must also include some reflection on the
odd word compassionate in the title of the statute.

No one doubts that specific deterrence
and protection of the public are paramount in considering the release of prisoners
into society. To underscore this idea, Wisconsin State Representative Scott
Suder recently organized fortyfour GOP lawmakers to protest all of the prisoner
release provisions passed as part of the budget bill in 2009. Commenting on
similar legislation in the past, Suder decried compassionate release of elderly
inmates: “I don’t think age should be a factor . . . for letting people loose early
or giving them things like house arrest. . . . Putting these criminals in
residential nursing homes with an already vulnerable population . . . I think
is just utterly dangerous.

Although concern with public safety
is an important factor, statistical analysis undermines claims that those eligible
for compassionate release pose a substantial threat to society. Research in
this area indicates that elderly prisoners are the least likely to, and the
least capable of, committing crimes. For one thing, elders in prison appear to
be more physically impaired than the general elderly population. They
frequently have lives marked by poverty and addiction; therefore, they tend to be
less healthy than society at large. Aside from these ex ante considerations,
the major factor contributing to growth in Wisconsin’s prison population is
revocation of earlier sentences. Inmates know that they will always be subject
to revocation if they step out of line while on extended supervision. This
awareness may well discourage further unlawful behavior.

Second, internal evidence from the
statute demonstrates that retribution is taken into account in compassionate release
determinations. Elderly prisoners are not eligible to file petitions until they
have served a substantial period of their sentences behind bars.60 Furthermore,
Wisconsin prison sentences and periods of extended supervision have increased
markedly under Truth in Sentencing, which in part underscores the necessity of
this law. Retribution concerns are thus met. In addition, Wisconsin statutes
specifically provide that courts must consider inmates’ efforts at
rehabilitation while incarcerated as a factor in any motion to modify a
sentence. Insofar as correctional institutions still accept the idea that
prisoners strive to reform their lives, inmates’ efforts at selfimprovement are
rewarded by current Wisconsin law.

Although necessary, it is fair to
concede that the foregoing would not constitute sufficient grounds for changing
the release standards barring an expected dividend of cost savings. Thus, it is
noteworthy that such savings remain undefined. For example, no one has been
able to estimate what, if any, net savings may accrue because of Wisconsin’s sentence
modification legislation.64 Indeed, rather than careful analysis of projected
savings and possible costs that may be shifted to other state, county, or
municipal programs by releasing inmates under compassionate release, the
legislative history assumes without proof that it is more economical to house
some people outside of state prisons. Moving prisoners out of the state
corrections system will surely save money for corrections.65 The National
Center on Institutions and Alternatives concluded that release of nonviolent elderly
prisoners to communities would result in “astronomical” savings. Later studies
are more guarded and suggest that it is at best unclear whether this strategy will
garner any net savings across government and private entities.

One key concern is that costs may
be shifted to those particularly unable to take on added financial burdens given
the precarious state of Wisconsin’s current economic situation. In particular,
Milwaukee has been recognized as a metropolitan area suffering concentrated
poverty. For instance, one recent study of the past forty years of economic data
in the largest U.S. cities revealed that “none of their urban centers fell as
far, as fast, as hard,” as Milwaukee’s. The study concluded that “Milwaukee falls to
the bottom of nearly every index of social distress.” Another recent study
revealed that Milwaukee has one of the highest rates of Black male joblessness
among U.S. cities.

If one accepts as a reasonable
assumption that many who are released will return to their families for
end-of-life or extended care, it would also seem reasonable that any bill
providing for compassionate release would provide for increased community
reentry funding to support families facing the financial burdens associated
with caring for these family members. Before the new bill, the State Department
of Corrections spent more than $27 million annually for the purchase of goods,
care, and services, including community-based residential care, for inmates, probationers,
parolees, and individuals on extended supervision. Although the governor requested additional positions
and funding in the bill of more than $5 million, that request was vetoed by the
Wisconsin Legislature’s Joint Finance Committee and adopted by the Conference Committee.
This denial of additional funding may end up costing the state more in the long
run, because it may either make compassionate release a practical impossibility
in a great number of inmates’ cases or lead families already in precarious
financial circumstances into even greater economic distress.

Despite these very real cost
concerns, on balance, the public interest may well be upheld by Wisconsin’s new
compassionate release programs—but this interest requires a different sort of
analysis from that which usually occupies lawyers. The values at stake are well
expressed by considering the Latin root of the word compassion: “I suffer with.”
Rather than the Kantian broad-based rules that characterize most public
interests, the interest spoken of here is more in line with a Heideggerian
“Dasein,” the “being there” that roots more personal considerations. The word
compassion evokes a relationship at a level of personal directness that the
penal apparatus rarely considers. Rather than determining results that could be
seen as distributed equitably by a blindfolded figure holding scales, those
deciding compassionate release petitions must consider the suffering and
extremity of a particular inmate with particular physical, emotional, and
mental needs and limitations.

In determining the public interest
involved in compassionate release of convicts, the Commission will need to ask
not only what sort of society we are but also what sort of society we aspire to
be. For compassionate release, the public interest must be focused on a very
particular private interest. If the Commission is not willing so to act,
Wisconsin’s new compassionate release law will not engender much change.

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