In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse
Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release.
Piper French | January 26, 2023
One of the first things they saw when they walked into the prison was the wheelchairs.
One after another, something like 40 chairs and walkers were lined up neatly outside each cell, stretching away into the distance. It was a jarring sight even for Kyle Hedquist, who’d worked for many years as a hospice volunteer during the decades he spent locked up there.
Hedquist never thought he’d get out of prison. When his sentence was commuted in mid-2022, he certainly didn’t expect to be back so soon. But in mid-January, he found himself on the Oregon State Penitentiary’s E Block, this time accompanied by high-ranking prison officials and a dozen state lawmakers—all staring at this endless line of equipment for prisoners who were too elderly or sick or disabled to walk on their own.
It was a powerful testament to an uncomfortable truth about America’s prisons: Increasingly, they contain elderly people, who are serving life or many decades for crimes that were adjudicated in the wake of the United States’s turn towards harsh sentencing schemes like mandatory minimums and three-strikes laws. Many of these people will die inside-–despite the fact that nearly every state possesses some form of compassionate release program that could allow terminally ill prisoners to spend their final days at home.
Oregon has a higher percentage of aging prisoners than most states. Hedquist was there that day to show legislators the prison infirmary where he had worked, in hope that they might support legislation, Senate Bill 520, that would overhaul the state’s compassionate release system. Hedquist was hired after his release as a policy and outreach associate by the Oregon Justice Resource Center, an advocacy organization that has been trying to improve the compassionate release process in Oregon for years.
Families Against Mandatory Minimums, a national organization that supports criminal justice reforms, has been researching the issue for almost two decades, discovering that in almost every case, compassionate release is more of an idea than a reality. Last year, the organization released a report grading each state’s compassionate release system. Amidst generally poor results, Oregon failed in every category that FAMM used to measure systems—scoring higher than only five states, including two that had no compassionate release programs at all at the time. “It’s kind of a bare bones system,” said Daniel Landsman, FAMM’s deputy director of state policy. “It just falters in every category.”
According to data FAMM obtained from the state’s department of corrections, only seven out of 47 applicants won compassionate release in Oregon in 2019, while six people who had applied died before their cases could be processed. In 2020, no one who applied got out via compassionate release.
“We would say that those low numbers don’t reflect how many people are discouraged from even trying to apply by the complexity of the system, how opaque it is, the lack of a clear path through it or timeline,” said Alice Lundell, OJRC’s director of communications. “It’s very difficult to quantify how many people are just not even attempting this because it is beyond them, particularly in a very poor state of health to even begin.”
Applicants are first required to be terminally ill or elderly and medically incapacitated to qualify, though no definitions for these terms are supplied. These extremely sick or dying people must initiate the compassionate release process themselves and then complete a lengthy and complicated petition on their own that involves a medical report documenting their condition, a detailed post-release plan including treatment and housing, and a personal recommendation from the prison superintendent.
In the unlikely event they clear each of those hurdles, their petition arrives at the state’s board of parole, which in any given term, “may or may not have a medical professional on the board—usually they don’t,” says Hedquist. “They’re only looking at the crime, saying, ‘Well, hey, this dude’s got a 40 year sentence for A, B and C. We’re not going to let him out.’”
Aliza Kaplan, who runs the Criminal Justice Reform Clinic at the Lewis & Clark Law School, says the prison superintendent recommendation requirement in particular makes it extraordinarily difficult to advance past that point in the process. “We are lawyers who have a lot of access and know people—and we couldn’t get anyone to write us back or talk to us about our cases,” she told Bolts.
Kaplan’s clinic has stopped even trying to use compassionate release as a mechanism to get people out of prison. The enormity of the system’s failure became particularly stark during the pandemic. “My law school was shut down,” she said. “I was sitting in my office anyway. And I was being inundated with letters and phone calls from folks in prison and family members afraid that their loved ones were going to die.” She went on: “There was nothing to even offer people because I knew that the law on the books, the compassionate release law, was never going to help them.”
In a 2019 essay for PEN America’s Prison Writing Contest, Hedquist detailed his experience working in hospice. “Death, I would learn, comes on its own terms and in its own time,” he wrote. But the urgency that attends the last few months of someone’s life is nowhere to be found in the compassionate release system. “The board of parole gets to these cases when they get to them,” said Zach Winston, OJRC’s policy director.
SB 520, the proposed compassionate release legislation, seeks to revamp the compassionate release process to make it more of a viable option. First, it creates a duty for prison officials to recommend terminally ill people with less than a year to live for compassionate release, taking the onus off of the critically ill person themself to start the process. It also gives doctors more control over the process, establishing a board of medical professionals to evaluate compassionate release requests, and attempts to crack down on the mechanism’s delays by requiring the board to rule on applications within 45 days, or within 14 days if the applicant has a prognosis of less than a year to live.
The doctors’ recommendation would have greater weight in the final outcome by setting a higher burden for carceral officials to overturn it: Landsman said the bill would establish a “presumption of release to people who have been proven by medical professionals to truly be terminally ill or medically incapacitated.” People could still get denied if they were found to be a danger to public safety or, more likely, didn’t have a robust post-release plan.
Oregon Physicians for Social Responsibility, an organization that works on public health and social justice issues, is also sponsoring the legislation. “This bill ensures that Oregon’s compassionate early medical release process is health-centered and that [adults in custody] can better exercise their right to access the medical care and treatment that they need,” the group told Bolts in a statement.
SB 520 was reintroduced in Oregon’s legislature for the 2023 session after failing to pass in 2021 and 2022. Oregon Republicans denounced the legislation for “letting people out of prison,” stripping it of the end-of-life context, which advocates say proved damaging to their efforts amidst the glut of soft-on-crime attacks on Democrats in advance of the national midterm elections. But Oregon Democrats defended the governor’s mansion and their large legislative majorities in November.
One sticking point for the compassionate release bill last session was its budget. Proponents make the point that the bill would save money for the state by shifting the burden of paying for the care of sick and dying people in prison. “Prisoners are not eligible for their veterans benefits, and many of these guys are veterans,” Hedquist said. “Prisoners are not eligible for Medicare, Medicaid, because they’re incarcerated. And so these are direct tax dollars.” But Winston of OJRC said that the bill had been hindered in prior sessions by estimates that it would require new staff to implement.
There are bills to reform compassionate release pending in a handful of other states this year. Illinois established a new mechanism for the first time in 2021, leaving Iowa as the only state without one, and California overhauled its compassionate release system last year to enable more people to leave prisons. Still, many states’ compassionate release systems remain barely functional; past reporting by Bolts and New York Focus has found that a few prison officials in New York State routinely deny hearings to terminally-ill New Yorkers, for instance.
Like California’s new law, where prisoners serving life without parole remain ineligible for compassionate release, some Oregonians still won’t be able to access compassionate release even if the legislation passes. People convicted of any of 21 crimes that fall under Measure 11, a mandatory minimum ballot measure approved by voters in 1994, are categorically excluded. Amending Measure 11 would require a two-thirds majority in the state legislature, though Hedquist called the carve out “a bitter pill.”
There could be other barriers as well. With the departure of Kate Brown, the term-limited governor who greatly expanded clemency, and a good deal of rookie lawmakers who may not be versed in the nuances of crime and prison policy, Kaplan is worried that criminal legal reform bills won’t be a priority this session. SB 520 is currently sitting in the Senate’s healthcare committee.
“A lot of new legislators means that those of us who do criminal justice work need to spend time educating people and you know, it’s going to make all criminal justice legislative matters harder this year,” she said.
That was the point of getting lawmakers to visit the prison infirmary, Hedquist says. “Unless you have a loved one in prison, you almost have zero connection to the prison,” he told Bolts. “And so when you talk about voters, when you talk about senators—if they don’t know someone in prison, they just don’t know. And you can’t pass good legislation if people don’t know.” Many of the lawmakers, he suspected, had never been inside a prison. It was just an abstraction for them, a matter of policy.
For Hedquist, it was anything but abstract. It was ten people dying a month of Hepatitis C in the ‘90s; it was bathing dying lifers, playing cards with them, hearing their deathbed confessions. “Hospice was really the place where you could strip away all that prison was or all that prison tried to make us be and just be human to human,” he said.
He wanted to make that a reality for the lawmakers too. “It’s almost like once you see it, you can’t unsee it,” he went on. “So if anything, some of these folks are going to be in a position where they can’t just close their eyes and turn their head and say, ‘Well, I’m sure DOC will figure it out.’”