The prognosis for the 53-year-old inmate, suffering from end-stage liver disease, was so poor his prison physician recommended he be released from incarceration as soon as possible.
The medical records for the dying prisoner revealed a litany of problems: coughing up blood, incontinence, vomiting, unresponsiveness, difficulty speaking, uncontrolled drooling.
Despite the doctor’s recommendation, the state Department of Public Safety initially told the inmate’s advocate that the agency would not seek what is called a compassionate release, according to Bob Merce, a retired attorney who helped the inmate pursue one.
Those freed under the program are diagnosed as being so gravely ill or debilitated that an early release is deemed medically appropriate, particularly if the prison no longer is able to provide sufficient care. Given their conditions, the inmates, some in their twilight years, also are believed to pose little risk to public safety.
But even if a prison physician recommends a terminally ill inmate be considered for compassionate release or advocates believe his condition warrants one, the department is under no obligation to pursue a case, critics say. And the inmate has no recourse to appeal or take the matter directly to the Hawaii Paroling Authority, which makes all early-release or reduced-minimum sentencing decisions.
Those are among the reasons inmate advocates are calling for Hawaii’s compassionate-release system to be overhauled. They say the current process is too vague, inconsistent and inefficient, especially for prisoners whose death is believed to be imminent.
“I have seen firsthand how the current patchwork of incongruous and antiquated rules and policies consistently fails inmates, the criminal justice system and the public,” said Merce, who spent two months helping the 53-year-old inmate gain a compassionate release in March. The inmate, who was serving time for burglary and assault, died 17 days later.
The Legislature is considering a bill, which failed to pass the two previous sessions, that would significantly revise the system. The current version, HB 255, calls for a three-year pilot program, and the prison and paroling agencies say they support the intent of the bill. Groups including the ACLUand the Hawaii State Commission on the Status of Women also have submitted supporting testimony.
Independent of the bill, some revisions to the system already are in the pipeline, including proposed rule changes that would allow more offenders to be considered for the program, which technically involves reducing minimum sentences, officials said. Those released under the program still report to parole officers.
Merce helped write the initial bill after spending what he described as a frustrating six months trying to get Delbert Wakinekona, another inmate suffering from end-stage liver disease, a compassionate release.
There seems to be little support for a pilot program, given that a process for granting compassionate releases, also called medical releases, already exists. There’s also considerable disagreement on how much the existing system needs to be revised.
“It works fairly well,” Public Safety Director Ted Sakai told the Honolulu Star-Advertiser on Friday. “It needs to be tweaked a bit.”
But Kat Brady, coordinator of the Community Alliance on Prisons, told the House Judiciary Committee last week that the system is broken and costly. She said too many inmates who present little or no risk to the community are dying in prison.
“Why are we incarcerating these people at these outrageous costs?” she said.
The House panel took testimony Friday on HB 255 but made no decision on whether to advance the bill.
Attorney Daphne Barbee-Wooten, among those advocating change, told the Star-Advertiser that she requested a compassionate release for an elderly client confined to a wheelchair, and a departmentphysician in February 2012 recommended he be released. The department denied the request, Barbee-Wooten said, and her client, without a means to appeal and who has had several surgeries while in prison, remains behind bars.
“Why are bureaucrats with no medical degrees disregarding their own doctors’ decisions?” she asked.
Department physicians consider only medical evidence when making a recommendation about a compassionate release.
The public safety director, who ultimately decides whether to accept the recommendation, also considers nonmedical factors, such as the inmate’s level of expected risk to the public and whether the prisoner has an appropriate place to live upon release, according to Sakai. One tweak the department already has made to the system involves those cases in which a department physician recommends early release. All those cases now go before the parole board, he said.
Previously, only cases in which the recommendations were accepted by the director were forwarded.
Wes Mun, the department’s health care services administrator, defended the way his agency handled the case of the 53-year-old inmate, whom the Star-Advertiser is not naming at Merce’s request. When a compassionate release was first discussed, the inmate’s condition didn’t warrant one, Mun said.
As his condition deteriorated, a departmentphysician in late February recommended his release as soon as possible, and the parole board granted it March 20, according to records in the case.
“We felt that was acting timely,” Mun said.
In a prison system with roughly 5,700 inmates, including about 1,500 on the mainland, few recommendations for compassionate release are made, and even fewer are granted, and inmate advocates say many legitimate cases go unpursued.
Over the past three years, department physicians recommended only 43 releases, according to department data. Of those, the administration denied eight and forwarded the remaining 35 to the parole board. The board approved 21, denied 12 and two cases are pending, according to DPS.
Excluding the two pending cases, the board since 2011 has approved all requests from inmates qualified for a medical release, Tommy Johnson, administrator for the parole authority, told the House committee last week.
The other cases involved inmates who didn’t qualify for several reasons, including not completing court-ordered mandatory minimum sentences or not facing imminent death, according to Johnson.
While the Paroling Authority’s rules use imminent death as a qualifying criteria, department policy requires a diagnosis that death is expected within a year.
Critics say the two different criteria make the system confusing and have contributed to delays or the prevention of the release of dying inmates. They say a delay of even a few days is significant.
Sakai said the two agencies are working to make the system criteria more consistent.
Merce, the retired attorney, said unless changes are made statutorily, the department will continue to neglect cases in which inmates clearly are dying. For those prisoners, facing death on the outside, with family around, “makes a huge difference,” Merce said.
