California Passes Bill to Expand Prison Releases for Terminally Ill People
Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home.
Piper French, | September 2, 2022
Editor’s note: Governor Gavin Newsom signed Assembly Bill 960 on Sept. 29.
For four years, Kelly Savage-Rodriguez helped women die in prison. As a volunteer comfort care worker at the Central California Women’s Facility, informally known as Chowchilla, Savage-Rodriguez played a hybrid role: somewhere between a hospice nurse and a proxy for patients’ family members. She brushed their hair, played cards with them, helped them write letters to their loved ones outside prison.
California has a program called compassionate release that allows the courts to grant people who are dying in prison their freedom, but a system of arbitrary delays and denials means that it rarely happens in practice. “The hold-up is so extreme,” recalled Savage-Rodriguez, who was released in 2019 and is now the Drop LWOP coordinator for the California Coalition for Women Prisoners (CCWP). “We would sit there watching day after day—family members calling, fighting to try to get information and hearing nothing—only to be told that [the request] never even left the institution.”
The California legislature passed a bill on Tuesday that aims to improve the compassionate release process, and it’s now awaiting signature by Governor Gavin Newsom. Assembly Bill 960 would expand eligibility for compassionate release, streamline the approval process, and automatically provide legal counsel. The bill is sponsored by Assemblymember Phil Ting and a broad coalition of organizations, including CCWP, UnCommon Law, and Families Against Mandatory Minimums (FAMM).
“When I think about somebody dying in there, it hurts,” said Savage-Rodriguez. This bill, she said, “could give them just that moment of peace with their family.”
Some California organizers hope that this new bill clears the way for a broader reconsideration of how the state treats its aging, ill, and medically vulnerable prisoners. In a particularly dark legacy of the harsh sentencing laws of the 1980s and 1990s, the very same people sentenced under mandatory minimum guidelines and handed lengthy enhancements in their teens and twenties are now growing old and sick in prison. Unless something changes, many of them will die there.
There are two standard routes for someone to be released from prison for medical reasons in California: compassionate release and medical parole. The initial version of AB960, introduced by now-state Attorney General Rob Bonta in 2021, focused on improving the latter: Medical parole is decided by the parole board, not the courts, and funnels people into licensed skilled nursing facilities across the state rather than releasing them into the community. But issues with the system kept surfacing. “It’s not only that people on medical parole aren’t really released, they can be sent back to prison for virtually anything,” said Leah Daoud, a policy manager for the legal and policy advocacy organization UnCommon Law. Then, in late 2021, federal health regulators found that California’s medical parole system violated federal standards for patient rights. Rather than change its practices to comply, California started sending almost all of its medical parole patients to a decertified facility where some patients were handcuffed to their own beds or neglected for hours on end. The state also began limiting future eligibility for the program to people on ventilators.
From the sponsors’ perspective, the desired outcome of medical parole was no longer viable or desirable, so reforming the process seemed futile. They recalibrated their legislative push to focus on compassionate release. “Compassionate release in California has never been seriously studied,” said Daoud. “There really hasn’t been—up until now, with this bill—anyone looking at this process and saying, why is it that this happened or this didn’t happen?” They discovered that the existing process wasn’t working. In 2020, the legislature had amended the penal code to open up compassionate release to anyone who qualified for medical parole because of permanent medical incapacitation, but in practice, Daoud told Bolts, many people in that category still weren’t being considered.
And those who did manage to register a request faced roadblocks throughout the process. Between January 2015 and April 2021, according to an analysis by FAMM, 304 people sought compassionate release. 290 of them were found medically eligible, but only 53 were released in time to pass away at home. 91 people died in prison, waiting.
When you’re terminally ill, the importance of each passing second becomes agonizingly heightened. But that critical element—how much time you have—is often impossible to predict. “There’s no science to when somebody’s going to pass,” said Savage-Rodriguez. Rather than trying to attach eligibility to the number of months that someone has left, as the state currently does, AB 960 proposes a broader definition: anyone with an incurable condition or an “end-of-life” trajectory is eligible to apply.
Moreover, the bill would accelerate the timeline for compassionate release, requiring the California Department of Corrections and Rehabilitation (CDCR)to refer a case to the courts no more than 45 days after the patient’s physician triggers the compassionate release process. It would also tweak the standard for the courts in favor of release, unless the patient can be deemed a risk to public safety. (Recidivism among elderly incarcerated people is extremely low. One study found that only 11% of people aged 65 and older reentered prisons after release.)
Crucially, the new bill would remove the CDCR Secretary, an office that FAMM found to be the most likely source of denials, from the process entirely. Currently, the secretary must sign off on an application before it goes to the courts, an extra step that advocates argue is superfluous and produces inexplicable denials. “It was really clear that the secretary doesn’t play a medical expertise role in the process, they’re obviously not a trained medical professional—but they’re also not a public safety role either, that’s the role the courts play,” said Daoud. “All we’re doing here is giving medical professionals more ownership and power over this process, which is just what they should have had in the beginning.” (CDCR did not respond to a request to clarify the secretary’s role in this process).
Before his retirement last year, Peter Eisenberg was a longtime medical oncologist at Marin Cancer Care. Eisenberg and his colleagues treated people incarcerated at San Quentin State Prison for cancer and a variety of blood diseases, and he saw firsthand how bureaucratic inefficiency prevented his dying patients from going home to their families. “I was kind of surprised that if I predict that the guy is sick enough to die of his, for instance, metastatic prostate cancer, that it would take so much effort and so long to get the paperwork, for crying out loud, to accommodate his death outside of prison,” he told Bolts. “I’d write in my notes that this person is likely to die within the next six months, and I’d write it over and over again.”
Eisenberg recalled a rare instance where one of his patients was released on parole; later he thanked his former physician for treating him with dignity and respect. “That’s nice to hear, but it’s my job,” Eisenberg said. “And I think it’s the state’s job to do the humane thing for people who have limited time on earth who are incarcerated for one thing or another…Weighing the appropriateness of an early release from prison because of their health issues shouldn’t be a bureaucratic battle. It should be a pretty simple thing to figure out.”
Thus far, AB 960 has encountered little pushback. Only one group—the California District Attorney’s Association, which tends to take issue with any reforms that aim to get people out of prison—has registered its opposition. Daoud said she’s hopeful that Newsom will sign, though the governor has not indicated his final intention.
Proponents of AB 960 recognize that its adoption would still leave a lot of work. The bill can’t fix the United States’ broken healthcare system, for one. A particularly cruel irony is that some people may have better access to care in jail than on the outside. The lack of a solid post-release plan—strong family support, or a skilled nursing facility that has agreed to take on a patient—is the second most common reason that people who are medically eligible get denied from compassionate release, and AB 960 won’t address that.
There’s also the issue of carve-outs. People serving a sentence of life without parole have never been eligible for compassionate release, along with those serving a death penalty sentence and anyone convicted of killing a police officer. That group includes women Savage-Rodriguez knew at Chowchilla who require regular care owing to unmanaged diabetes and a medication-induced stroke.
It also includes the woman who started the hospice program at Chowchilla back in 2000, after a spree of deaths in the prison left people stunned and grieving and spurred her to act. Judi, who asked that her last name be withheld to protect her family’s privacy, had no reason to believe she was ever getting out of prison. “I wanted to do something for the woman who were dying,” she told Bolts. “And actually for myself, because I didn’t want to die alone.”
Thanks to Judi’s efforts, comfort care has been operational at Chowchilla for over two decades. She looked after dozens of women in the last days of their lives. “It was like that movie ‘Groundhog Day,’” she told Bolts. “It happened over and over.” For the ones who were eligible for compassionate release, she said, “It was almost universal that they died before they could get out.”
Against all odds, Judi’s life without parole sentence was commuted several years ago. “Every day I wake up and I go: really?” she said. “I’ve been out three years and I still do that.” But a sentence commutation is like winning the lottery, and there are many more people growing old and sick in prison whom compassionate release doesn’t cover.
“Statistics show that the recidivism rate [for aging people] is so minute,” said Amber-Rose Howard, the executive director of CURB, a coalition that aims to reduce incarceration and close prisons across California. Howard highlighted the need for elder parole expansion. But she also called for the state of California to change the policies that have people aging while incarcerated in the first place. “We have to think about the 25-to-life sentences. We have to think about these things that give people extra time in prison, and we have to reverse those policies. I think that’s the only way we’re actually going to see real change.”