Oregon bill aims to make compassionate release easier for ill and elderly inmates

For people who are incarcerated in Oregon’s prison system, there is an option to be released early if they are terminally ill, elderly or medically incapacitated. This process is called compassionate release. But as Bolts Magazine reports, with no clear definition of who qualifies and a lengthy application process that adults in custody must complete themselves, there are many hurdles for those seeking release. Now, backers of SB 520 hope to reform the system. The bill would create a medical board to review requests, establish a clear timeline and put the duty of recommending terminally ill people for compassionate release on prison officials, rather than the person serving time. Piper French is a staff writer for Bolts Magazine. She joins us to share what this bill would mean for those incarcerated and how the state’s current system compares to others.

The following transcript was created by a computer and edited by a volunteer:

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. For people who are incarcerated in Oregon’s prison system, there is a way to be released early if they are terminally ill, elderly or medically incapacitated. It’s called compassionate release. But as Bolts Magazine reported recently, the process is slow and it’s difficult to navigate. For the last two years, criminal justice reform advocates have tried unsuccessfully to streamline the system. At the state legislature, they are trying once again this session. Piper French is a staff writer for Bolts Magazine. She’s written about compassionate release in Oregon and around the country and she joins us now. Piper French, welcome.

Piper French: Thank you so much. It’s good to be here.

Miller: Thanks for joining us. Can you explain the idea behind compassionate release?

French: Yeah, absolutely. Compassionate release, as you mentioned, is a mechanism that allows for dying or incapacitated people in prison to apply and be granted early release so that they can die at home with their families. And I think the idea behind it is that once people are at that advanced stage of dying, they’re really not a threat to the community. And it’s important, on a lot of levels, for people to be able to be with their families when they die.

Miller: Before we get to the current bill, what are the requirements currently in Oregon that adults incarcerated would have to meet before they could be granted this kind of early release?

French: It’s quite stringent, but it’s also pretty opaque. I talked to a lot of different people for these stories, doctors who work with prisoners, lawyers who tried to get people compassionate release, policy specialists, and then also formerly incarcerated people who worked in prison hospice when they were inside. Basically everyone who I spoke to said that compassionate release is really a false promise for people who are desperately ill in prison.

People have to be terminally ill or medically incapacitated. There’s no exact definition for what that means. Then they have to start the application process themselves. There’s no timeline, there’s no clear framework for eligibility, the application is pretty intensive. They have to get a recommendation from the head of the prison. That’s obviously pretty hard to do for most everyone. They have to have a detailed post-release plan. The prison doesn’t help them put that together. They need a medical report.

And then once they have all of that, if they get all of that together, then this goes to the parole board. Generally, in Oregon, the parole board doesn’t have a medical professional sitting on it. So, what I’ve heard from people I spoke to is that they’re often looking more at whatever crime initially got this person into prison in the first place, rather than whatever their condition now, and the fact that they’re probably no threat to the community, if they get out at this point.

Miller: So what you’ve heard is that the parole board is more likely to look at, say, at the seriousness of the crime than the seriousness, say, of the cancer.

French: Exactly.

Miller: So how often do Oregonians in state prisons here actually meet those requirements? How often is compassionate release used?

French: It’s pretty rare to be able to meet all of those requirements. One lawyer I spoke to who has done a few of these applications said that they got stalled at the point where she would have to reach out to the head of the prison for recommendation, so she just never heard back from those people. At the point where they’re actually going before the board, I think in 2019, only seven people were released via the compassionate release system. And in 2020, nobody got out by a compassionate release. So this is vanishingly rare and almost as many people die waiting as they do, who get out. And then there’s also a lot of people who are deterred from applying in the first place, because it’s just so complicated.

Miller: What did you hear from Kyle Hedquist, who was recently released from prison in Oregon, about what this means in practice?

French: So Kyle was incarcerated for quite a long time, I believe, almost 30 years. He definitely did not ever think that he would get out of prison and what he saw was people dying. When he was a younger man, I think he said that there was a point where people were dying of Hepatitis C and it was about 10 people per month. And at this point, we’re now dealing with the legacy of some of these harsh sentences of the country and then various states passed in the 90s. That means that people who were incarcerated back then are now growing old and sick. And so what Kyle saw, and actually he was even shocked to see this when he went back to the prison a few weeks back to tour it with some legislators, is that there’s an entire wing of the Oregon State Penitentiary, its entire ground floor is dedicated to people who are in wheelchairs or walkers. And they have to leave the wheelchairs and walkers outside of their cells because this prison was built in the, I believe, the 1940s, and so it’s not ADA compliant. So there’s no space in their cells for the wheelchairs. And so I think that was just like a really stark vision of how elderly our prisons have gotten. And I know Kyle was even surprised to see that.

Miller: How does Oregon’s current compassionate release program compare to other states?

French: Families Against Mandatory Minimum is a national advocacy organization that works a lot on this issue [and] has basically surveyed and graded every state. Oregon got an F, it scored very low. It scored only a few points higher than states who don’t have a compassionate release system at all. At this point, that’s only one state, Iowa. It fails on almost every level. All of the frameworks that they apply to sort of evaluate compassionate release, Oregon pretty much fails.

Miller: So the bill that lawmakers have put forward this year to address this is Senate Bill 520. How would the system change if this bill were to become law?

French: So this bill creates a duty for prison officials to actually kick start the compassionate release process for people who have less than a year to live. It sets out a really clear timeline because obviously time is one thing you just don’t really have when you’re dying.

Miller: Meaning, so instead of having an inmate, him or herself or their lawyers petition, then it would be up to prison officials themselves to start the process?

French: Yeah. And folks who are incarcerated could still petition themselves. But this sort of creates an expectation that prison officials will also be on the lookout for folks who meet those criteria and that they can also start the process.

Miller:. Once a doctor were to say, this person has less than a year to live?

French: Yeah, exactly. Or they know who’s in the prison, they probably can see, to some degree, people’s condition, and so that would be up to them to sort of maybe even educate the incarcerated person themselves, because not everyone knows a lot about the system or how it works.

Miller: What else would change under Senate Bill 520?

French: I think the biggest change is that SB 520 would create a separate board of medical professionals who would be responsible for examining these cases, and those doctors would really be looking at the severity and progression of the illness, rather than whatever crime had caused this person to get into prison in the first place. And once they make a recommendation on that, that sort of creates a presumption that that person will be released. They could still not be released if the parole board were to determine that they didn’t have a post-release plan. So like if they didn’t have a family who was able to take care of them, or if they were a danger to public safety in some way.

Miller: Can you explain the Measure 11 carveout in the current bill?

French: So Measure 11 is Oregon’s sort of mandatory minimum law that I believe was passed in 1994. And I think it applies to 21 separate crimes, and it’s a mandatory minimum law. And compassionate release currently doesn’t apply to people convicted of Measure 11 offenses and it still won’t under this new bill. I think that was a little bit of a hard pill to swallow for the folks who were advancing this bill, but at the end of the day, the legislative threshold that they would have to meet was just too high.

Miller: Two-thirds threshold to overturn that the voter passed Measure 11. What are the arguments against this bill specifically or making it easier for compassionate release to be granted? Broadly, what are the arguments against this?

French: I think there’s always going to be people who are against any form of early release for people who are in prison, right? So even though these are people who are terminally ill, there are always going to be people who oppose early release. And I know the Oregon GOP has been against this bill in the past. They still need to sort out the cost. So there were initial estimates that it might be a little bit expensive, advocates are saying that this bill will pay for itself, just because it’s so expensive to care for people at the end of their lives in prison. That’s obviously a burden borne by the taxpayers right now. And then finally, I think, you could argue that setting up an entirely new board could add a layer of bureaucracy that might make things a little bit confusing.

Miller: As I noted, this idea is not new. Similar proposals were brought forward and failed in 2021 and 2022, in those legislative sessions. Is there any reason to believe that this time will be different?

French: I know that last session was a short session. Oregon Justice Resource Center, which is the primary sponsor behind the bill, they just really didn’t have enough time and they’re hoping that this time around will be different. I mean, this bill is more familiar at this point. They’re doing a lot of legwork to get legislators on board. Part of that was a visit to the prison that I mentioned earlier with Kyle Hedquist, but there’s a lot of new legislators this session, and a lot of criminal justice policy is complicated, and I think there’s a lot of work to do to just get people up to speed on like the nuances of this policy. So you never know.

Miller: There’s also the important recent context of now former Governor Kate Brown’s approach to incarceration. She granted commutations or pardons to over 1,100 people, which, as the Guardian Newspaper noted recently, was more than all of Oregon’s governors from the last 50 years combined. How might that play into this current debate?

French: I think that Kate Brown’s actions on this hopefully will pave the way for a larger consideration of our aging prison populations. And I think that compassionate release is a big part of that. But I mean, the reality is that folks in prison who are terminally ill, that’s still a tiny percentage of everyone in prison and there’s a lot more people who are just getting older and may be sick, but not sick enough to qualify. So if we really want to sort of confront the legacy of these harsh sentences in the 90s, we’re going to have to think beyond even something like compassionate release in the future.

Miller: You also reported on California, which passed its own compassionate release reform bill back in September. How does that compare with what Oregon lawmakers are now, once again, considering?

French: The California bill has a lot of similarities, I would say. It also establishes a clear timeline, it streamlines the approval process. It creates a presumption of release and puts more focus on the opinion of medical professionals here. Another thing the California bill does is that it actually expands eligibility to people who are on an end of life trajectory. So I think that creates a little bit more of an expansive understanding of who is at the end of their life, right? I think doctors often don’t really use the terminology of like one year to live or six months to live anymore. And then another thing it does is that it provides access to counsel so that folks have legal help when they’re navigating this process.

Miller: Finally, can you tell us a story of somebody you talked to, a formerly incarcerated woman in California, named Judy?

French: Judy received a sentence of life without parole. She thought she’d never be out of prison, and she started a hospice program at Chowchilla, which is the largest women’s prison in California, because she thought she was going to die in prison and she wanted to help other women through that process so that someone would help her when she came to that stage of her life. She established a really amazing program. It still exists today. I spoke to another woman who was a hospice volunteer much later because of this program Judy started. And she did this along with her best friend. People called them like “Thelma and Louise” because they were total opposites and her friend unfortunately did pass away in prison and she benefited from the hospice program. But Judy’s sentence was committed a few years back and so she actually got out and she never thought that that would happen.

Miller: Piper French, thanks very much.

French: Thank you so much for having me. It’s been great talking.

Miller: Piper French is a staff writer for Bolts Magazine. She wrote recently about the efforts once again in Oregon to overhaul the state’s compassionate release program. That’s for people in Oregon prisons who are terminally ill, elderly or medically incapacitated.

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