Compassionate release eligibility guidelines are often fraught with clinical flaws. To meet most guidelines, prisoners must have a predictable terminal prognosis, be expected to die quickly, and/or have health or functional status that substantially undermines the aforementioned justifications for incarceration. As such, compassionate release requires that physicians predict not only limited life expectancy, but functional decline as well. Prognosis is difficult to establish for conditions such as advanced liver, heart and lung disease, and dementia (28
) - increasingly common causes of death and disability in prisons.(30
) Moreover, for patients with more predictable prognoses such as cancer, functional trajectories are variable and unpredictable, often declining only in the last weeks of life.(33
Reliance on prognostication can create a “Catch 22”: if compassionate release is requested too late, an eligible prisoner will die before their petition is completed; too early and a terminally ill prisoner in good functional health can be released, live longer than expected, and perhaps pose a threat to society. Yet, requiring a predictable, time-limited prognosis (e.g., 6 months or less) excludes prisoners with severe, but not end-stage, dementia, persistent vegetative state, or end-stage organ disease (e.g., oxygen-dependent COPD). Some such patients may live for months to years, at great expense to criminal justice systems, incapable of posing harm, participating in rehabilitation, or, in the case of dementia, experiencing punishment. These flaws reflect a fundamental tension between the eligibility guidelines for compassionate release and people's actual disease trajectories.
Procedural barriers may also hamper medically-eligible persons from obtaining compassionate release and invite potential inequity. For instance, persons with profound cognitive incapacities (the majority of patients with advanced illness (28
)), could be incapable of completing a written petition. Prisoners also have the nation's lowest literacy rates,(36
) are frequently distanced from family or friends impeding access to social support to navigate the process,(37
) and many are not aware that early release programs exist.(4
) Yet, formal mechanisms to assign and guide a prisoner advocate have neither been universally accepted nor optimized. For example, for a terminally ill prisoner in California, the warden must enable the prisoner to designate an outside agent to act as an advocate.(12
) However, once an advocate is appointed, there are no formal guidelines to help the agent navigate the system. In states without formal advocates, (e.g., New York) implicit expectations have arisen that prison medical staff should advocate for such prisoners. This expectation is not formally codified and is infrequently operationalized.(13
) Another procedural barrier is time: while a few states, such as Vermont, have a “fast-track” option for imminently dying prisoners,(13
) for many prisoners the process may be too lengthy to achieve evaluation for release before death. While these procedural barriers do not relate directly to the clinician's role, they may act as functional barriers to a meaningful process and should be reformed along with medical eligibility criteria.