THE ADOPTION AND IMPLEMENTATION OF COMPASSIONATE RELEASE FOR TERMINALLY ILL AND ELDERLY INMATES: COMPARING THE UNITED STATES' AND CHINA'S GUIDELINES FOR MEDICAL PAROLE PETITIONS.
Many U.S. states have programs allowing inmates early release from prison due to a medical illness, known as compassionate release or medical parole. (1) While compassionate release has been adopted in many states, not all states utilize compassionate release programs for terminally ill inmates seeking early release from prison, leaving the program with little to no purpose. (2) Abroad, China has adopted national compassionate release guidelines, interchangeably known as medical parole, for medically ill or elderly inmates serving extended sentences. (3) Both the number of deaths in U.S. prisons and the amount of money spent keeping terminally ill individuals behind bars are rising. (4) Compassionate release created a way out for terminally ill and elderly inmates, but the lengthy application process is not promising and needs to be changed. (5) In order to come to a solution, the United States needs to determine national guidelines for what compassion truly means for inmates seeking early release from the Board of Prisons (BOP) due to a medical condition or old age. (6)
Using Massachusetts as a case study, this Note examines China's adopted national guidelines for compassionate release for inmates who are terminally ill or elderly and evaluates the current requirements for compassionate release in China and the United States. (7) Part II will explore the history and function of the parole system across the United States and China. (8) Part III will examine the similarities and differences of compassionate release programs in the two countries. (9) Part IV will critique the United States for not fully adopting and implementing strict national guidelines for reviewing compassionate release petitions, specifically addressing Massachusetts' recent enactment of a compassionate release program. (10) Finally, Part V will conclude that there should be universal guidelines in every state for reviewing compassionate release petitions, so that medical parole programs can serve their intended purpose. (11)
A. The Traditional Function of Parole in the United States
Parole is a system of early, conditional release from prison followed by a supervision period that rose to popularity in the United States in the nineteenth century. (12) The main purpose of parole is to reintegrate prisoners back into the community "by allowing them to serve a portion of their sentences outside prison." (13) Because parole is a conditional release period, a parolee's release from prison is subject to conditions set by the parole board, and is supervised by a parole officer. (14) If a parolee fails to abide by the conditions of release, he or she can be returned to prison to serve the remainder of the sentence. (15)
Parole is important for reducing recidivism and providing rehabilitation for inmates returning to society, as well as for cutting prison costs. (16) Recidivism is a term for when a prisoner "falls back into the criminal behavior he was involved in before going to prison." (17) According to the Bureau of Justice "25[%] of released inmates are rearrested in the first six months and 40[%] within the first year" of returning to society. (18) Additionally, rehabilitation is the progression of an inmate's "moral and educational development from a life of crime to a productive member of society." (19) Parole boards grant inmates parole when the board determines that rehabilitation has been achieved and recidivism rates are low. (20) When determining whether an inmate is rehabilitated, parole boards rely on an inmate accepting responsibility for his or her crime, inner remorse, and repentance. (21)
Determinate sentencing, also known as definite sentencing, was given to most offenders until the mid-nineteenth century. (22) The development of parole in the United States is credited to an Englishman, Captain Alexander Maconochie, and an Irishman, Sir Walter Crofton. (23) In 1876, Zebulon Brockway, a prison reform penologist, created indeterminate sentences and parole release in the United States. (24)
In 1837, Massachusetts enacted legislation authorizing parole. (25) Additional legislation was fought for in 2011 to address parole of terminally ill incarcerated individuals, but it failed to be enacted at that time. (26) The Massachusetts Parole Board developed different units over the years, including the executive clemency unit, field services, legal unit, transitional services, interstate compact, warrant and apprehension unit, victim service unit, information technology, and program unit to work with parolees. (27)
B. History of Parole in China
China's incarceration rates are comparable to the well-known incarceration rates in the United States. (28) China is ranked second after the United States in number of people incarcerated. (29) China utilized two different types of prisons: "reform through labor camps," and "reeducation through labor prisons." (30) Although later abolished by the Chinese government, reeducation through labor, the most popular prison type before 2013, centered on reforming inmates with study sessions, and requiring inmates to write daily thought reports. (31) China also forces inmates, who are physically capable of participating, into hard labor. (32)
China's criminal justice system, like the United States', offers parole for adults and juveniles facing life sentences in certain circumstances. (33) In both countries, prior to the twenty-first century, juveniles could face life without parole; however, that was discouraged by national policies. (34) China abolished life imprisonment for juveniles just before the turn of the twenty-first century; the United States followed with a similar policy in 2013, when Diatchenko v. District Attorney for Suffolk District (35) was decided. (36)
Unlike the United States' parole system, which is primarily based on individual case evaluations, China's system is slightly more uniform because of the use of a point system. (37) In the early 1980s, the point system was created to determine when the inmate will be released on parole based on their conduct in prison. (38) China suspends sentences to prisoners who have committed minor crimes, have plead guilty, or are not likely to endanger society further in order to help with their reform. (39)
China enacted early release in 1990 for medically ill inmates, known as compassionate release or medical release. (40) Chinese political prisoners gain extensive media attention within the criminal justice system; for example, Ngawang Choephel, Jigme Sangpo, Xu Wenli, Wang Youcai, Rebiya Kadeer, and Liu Xiaobo, all of whom were greatly influenced by early parole for terminally ill prisoners. (41) Ngawang Choephel, a documentary filmmaker, producer, and director, gained national attention in China for his early release by Chinese authorities in 1995. (42) Jigme Sanpo, the longest-serving political prisoner of Tibetan ethnicity, was released on medical parole on March 31, 2002, and permitted to travel to the United States for medical treatment. (43) In 2002, the leader of the China Democracy Party, Xu Wenli, was released from Yanquing Prison in Beijing and sent to the United States for medical treatment. (44)
Wang Youcai, a dissident of the Chinese government, was released from prison in 2004 and transported to San Francisco, California, for medical treatment. (45) Rebiya Kadeer, a female political activist, was released from prison in 2005 and ordered to Washington, D.C., to receive medical treatment. (46) Many of these inmates were released on medical parole around the time of a Chinese national celebration, a favorable time to grant medical parole for inmates. (47)
A. United States' Adoption of Compassionate Release
Compassionate release is a matter of federal statute and has been adopted by a majority of the states. (48) Calculating a given inmate's parole eligibility date first depends on where the inmate's sentence is being served--either in a house of correction or in a state prison. (49) Although the United States Sentencing Commission has begun to address the issue of compassionate release by creating new eligibility guidelines federal judges can use to assess ill inmates, there are no universal guidelines in effect to help states evaluate inmates who may be eligible for early release if elderly or terminally ill. (50) The United States faces increased prison costs, due to older prisoners costing two to three times more than younger offenders to incarcerate. (51)
Despite the enactment of compassionate release statutes in the United States in the early 1970s, the statutes are still rarely used by parole boards and judges. (52) State prison systems likely have similar, if not lower, rates of release. (53) Although state prisons may have lower rates of release, not all states have negative compassionate release statistics. (54) Because the number of terminally ill inmates is increasing, correctional officers across the United States are taking on the role of caring for sick inmates. (55)
According to the Office of the Inspector General, as of 2013, approximately twenty-four inmates are granted medical parole each year across the entire United States. (56) In 2016, former Massachusetts House Speaker Salvatore F. DiMasi was released from prison--after being convicted of corruption charges and receiving eight years in prison--on the basis of medical parole becuase he battled cancer twice while in prison. (57) Unfortunately, compassionate release applications face long waits and little action in most states. (58) From August 12, 2013, to September 12, 2014, compassionate release was granted infrequently, even though inmates are qualified and suffering from terminal illnesses. (59)
B. China's Adoption of Compassionate Release
China's implementation of compassionate release has, and continues to be, a pivotal part of early release for prisoners. (60) Imprisoned Chinese political figures are among the many inmates released on medical parole; some of them received permission to travel to the United States to receive proper medical care. (61) The most recent and influential political figure granted medical parole was Liu Xiaobo in 2017. (62) Despite being China's only Nobel Peace Prize recipient, Liu Xiaobo was not relieved of his sentence; rather, he was granted permission to serve it outside of prison. (63)
C. Overcrowded Prisons
1. Overcrowding in Massachusetts Prisons
Although "[t]he United States has less than [5%] of the world's population... it has almost a quarter of the world's prisoners." (64) In Massachusetts specifically, "[a]lmost every correctional facility is operating above its capacity." (65) The overcrowding in Massachusetts exists at all security levels. (66) Massachusetts has four security levels: prerelease/contracted residential placement, minimum, medium, and maximum. (67) Continuing to imprison dying inmates contributes to overcrowding and prison costs. (68) As of July 4, 2015, the Massachusetts Department of Corrections facilities had a [121%] total custody-overcrowding rate. (69)
In April 2018, S. 2371, also known as, An Act Relative to Criminal Justice Reform, was enacted by the Massachusetts Senate and the House of Representatives and signed by Governor Charlie Baker, officially establishing a compassionate release program in Massachusetts. (70) S. 2371 was a popular bill amongst the Senate and House of Representatives, passing in the Senate 37-0 and in the House of Representatives 148-5. (71) Although signed by Governor Charlie Baker, he recommends amending the medical parole portion of the bill to set limitations for compassionate release for specific crimes including first-degree murder and sexually dangerous persons. (72) Fortunately for Massachusetts, the compassionate release guidelines recently enacted in the bill are narrowly tailored to address major parole concerns, which are designed to properly implement the program to benefit terminally ill prisoners. (73)
2. Overcrowding in China's Prisons
Similar to the United States, China also faces the problem of overcrowded prisons. (74) China has five prisons that are the size of small towns. (75) Starting in 2012, and up until 2018, prisons became overcrowded as a result of President Xi Jingping's decision to crack down on corruption. (76) As of 2014, the rate of incarcerated women in Chinese prions has increased an average of three percent. (77) Although overcrowding is a concern in Chinese prisons, the death penalty cuts annual prison overcrowding. (78) Overcrowded prisons are criticized and are considered a form of inhumane treatment in China. (79)
A. National Compassionate Release Standard Needed as There is in China
The best solution for the United States compassionate release program is to adopt universal national guidelines, as China has, to provide consistency and fairness to each terminally ill or elderly inmate; one that is not just enacted but implemented among the states. (80) The United States should adopt and enforce a similar standard of guidelines for review under these petitions like China's medical parole system, which operates apart from other parole systems and other forms of sentence reduction. (81) Each state in the United States should enforce the enacted guidelines for medical parole, and the implementation and enforcement of guidelines should be a national standard that must be enforced by each state. (82) Each state should consider an inmate's age, length of sentence, programming, seriousness of the illness, type of offense, and release plans to decide on whether a prisoner should be released. (83) Human dignity must be at the forefront when determining whether inmates should be released on medical parole, no matter where they are imprisoned. (84)
Not only does compassionate release benefit prisoners, it also benefits prisons by addressing correctional costs. (85) Compassionate release would also cut unnecessary costs of confining prisoners in state and federal prisons who do not pose a risk of harm to anyone while also cutting medical costs. (86) Unfortunately, without medical insurance in prisons, inmates continue to grow ill and age faster than the general population, posing both a financial and ethical problem. (87)
B. Massachusetts' Push for Conformity of Compassionate Release
Although recently enacted, Massachusetts is an example of an advantageous opportunity to adopt a national guideline among states. (88) Massachusetts is ranked seven out of the fifty states for highest health care spending, a cost that can be greatly reduced if terminally ill or elderly inmates are released following S.2371. (89) In 2011, Massachusetts' lawmakers supported former House Speaker Salvatore F. DiMasi's federal petition for compassionate release for years, and finally enacted a state program in 2018. (90) Inmates suffering from terminal illnesses in Massachusetts now have the option to apply for compassionate release; policy, morality, and financial terms indicate that prisoners who qualify should receive compassionate release. (91)
Although the push for a Massachusetts' compassionate release program seemed to have been a forgotten issue, it surfaced again, this time finally making a statement in April 2018. (92) Fortunately, S.2371, An Act Relative to Criminal Justice Reform, passed both houses and was signed by Governor Charlie Baker. (93) Although not perfect, the bill addressed many concerns Massachusetts has for terminally ill prisoners, focused on fixing these concerns, and created guidelines for inmates to petition for medical parole. (94) Although Massachusetts has neglected to include specific nuances, such as elderly release for prisoners, considerations for first-degree lifers and sexually dangerous persons, and detailed training guidelines for parole officers and correctional officers, other states have include some, recognizing the importance of such provisions in such a controversial bill. (95)
Among the United States, there are only four states that do not have a program implemented and enforced for compassionate release. (96) The Massachusetts legislature's inability to ensure prisoners have the opportunity to apply for early release from prison has caused major concerns for many years, but change is finally happening, especially in Massachusetts. (97) In order for this to be rectified, Massachusetts needs to implement and enforce the new compassionate release program, and not let it slip through the cracks, to ensure prisoners get the chance at early release. (98) China's compassionate release program is implemented on a national basis and not a forgotten issue, a strategy Massachusetts, as well as all other states, must adopt. (99)
Compassionate release in Massachusetts needs to not only recognize release for those inmates who are terminally ill, but implement and enforce those strict guidelines for prisoners to follow on their quest to be granted compassionate release. (100) Compassionate release is the only appropriate and justifiable release plan that is beneficial to Massachusetts' terminally ill prisoners, and although S. 2371 passed, Massachusetts has a long way to go with enforcing a beneficial compassionate release program. (101) Although opinions differ on how to resolve the issue of compassionate release, policymakers should provide solutions to protect those who are terminally ill and aging, as well as society at large, by providing a step-by-step analysis of the process through enacting strict national guidelines. (102) It is time for states with no programs and newly enacted programs to join in on implementing a successful compassionate release program aligned with other states that have successful programs until a national guideline is created. (103)
(1.) See Medical Parole, 28 C.F.R. [section] 2.77 (2018) (establishing medical parole statute); TINA MASCHI ET AL., ANALYSIS OF UNITED STATES COMPASSIONATE AND GERIATRIC RELEASE LAWS 9-10 (2015) (listing U.S. states with compassionate release programs). "Beginning around the 1970's, compassionate and geriatric policies, such as medical parole and compassionate release laws and programs for mostly non-violent terminally ill incarcerated people, have been implemented in an effort to transition aging and/or serious or terminally ill incarcerated people to community-based care." MASCHI ET AL., supra, at 6. Prisons face a great financial cost when they house elderly and seriously ill prisoners. Id. According to a Human Rights Watch report from 2012, providing care for elderly or sick inmates costs the state and federal governments "an annual sum of [USD]2.1 billion, which is three times the amount it costs to accommodate a younger prisoner." Id. Although the implementation of the medical parole policies would cut prison costs, the policies are often not used "due to bureaucratic red tape and negative public attitudes towards more compassionate approaches to criminal justice." Id. According to the report's findings, four states do not have any program for compassionate release, while forty-six states, Washington, D.C., and the federal government, do. Id. at 8. Those states without any implementation of compassionate release laws are Illinois, South Carolina, South Dakota, and Utah. Id. States consider a number of factors when evaluating prisoners for medical parole, including: "(1) physical/mental health, (2) age, (3) pathway to release decision, (4) post release support, (5) personal and criminal justice history, and (6) stage of review." Id. at 9-10. Thirty-six states require inmates to be terminally ill to be considered for medical parole. Id. at 10. Of those states, seventeen require a maximum anticipation period or life expectancy of the inmate. Id. Federal law requires that a patient be facing an eighteen-month life expectancy. Id. See also 18 U.S.C. [section] 3582 (2017) (determining proper term of imprisonment); Marty Roney, 36 States Offer Release to Ill or Dying Inmates. USA TODAY, Aug. 13, 2008, at 4A (discussing states offering parole to sick inmates). Alabama enacted the compassionate release program to allow inmates who are "permanently incapacitated or terminally ill" early release from prison. Roney, supra. The cost for medical treatment was a reason for an enactment of a law like compassionate release. Id. These costs can total up to USD65,000 per year. Id.
(2.) See Roney, supra note 1, at 4A (distinguishing states with compassionate release). Some argue that there is a fear of reoffense, even though the inmates are medically ill and limited because of their illness. Id. Others believe that compassionate release programs do not help save money because inmates will have to receive medical care outside of prison using other government programs. Id. See also Andrew Wilper et al., The Health and Health Care of US Prisoners, 99 AM. J. PUB. HEALTH 666, 666-71 (Apr. 2009) (analyzing health care statistics nationwide). "Worldwide, imprisonment per 100,000 ranges from... 119 in China... and 750 in the United States." Id. at 666. In the United States, "[a]mong inmates with a persistent medical problem, 13.9% of federal inmates, 20.1% of state inmates, and 68.4% of local jail inmates had received no medical examination since incarceration." Id. at 669. Prior to incarceration, "slightly more than [one in seven] inmates were taking a prescription medication for an active medical problem." Id.
(3.) See JIANFU CHEN, CRIMINAL LAW AND CRIMINAL PROCEDURE LAW IN THE PEOPLE'S REPUBLIC OF CHINA 329, 329-30 (2013) (discussing and articulating Article 254 within China's criminal procedure). China allows any individual with a sentencing term to seek medical parole, including those sentenced to life in prison. Id. The illness presented to the Parole Board must be diagnosed and certified by a government hospital. Id.
(4.) See Kevin Johnson & H. Barr Beiser, Aging prisoners' cost put systems nationwide in a bind, USA TODAY, July 11, 2013, 10:37 AM, https://www.usatoday.com/story/news/nation/2013/07/10/cost-care-aging-prisoners/2479285/ (highlighting monetary care for sick inmates). A recent investigation concluded that federal inmates in the United States die before they receive a decision regarding medical release. Id. Decisions are neglected and inmates are forced to wail and eventually die because of the lack of care within the compassionate release process. Id. See also PEW CHARITABLE TRUSTS, STATE PRISON HEALTH CARE SPENDING 1, 3 (2014), http://www.pew trusts.org/~/media/assets/2014/07/stateprisonhealthcarespendingreport.pdf (addressing health care spending within prisons). In fiscal year 2011, correctional health care costs totaled USD7.7 billion. Id. As numbers of elderly and terminally ill prisoners increased, so did inflation costs. Id. See also Matt Murphy, Mass. prison spending ranked 7th in US, COMMONWEALTH MAG., July 8, 2014, https://commonwealthmagazine.org/criminal-justice/002-mass-prison-spending-ranked-7th-in-us/ (explaining increase spending on healthcare among states). Among the fifty states, Alaska, California, Massachusetts, Montana, New Hampshire, Vermont, and Wyoming are the top seven states spending the most money on prisoner health care. Id.
(5.) See Carrie Johnson, Sick Inmates Dying Behind liars Despite Release Program, NAT'L PUB. RADIO (May 23, 2013, 3:05 AM), https://www.npr.org/2013/05/23/185563665/sick-inmates-dying-behind-bars-despite-release-program (describing problems with compassionate release programs). Clarence Allen Rice is an example of an inmate who suffered throughout the release-request process. Id. In 2004, Rice was found guilty of fraud and sentenced to a little under six years behind bars. Id. While serving his sentence, Rice was diagnosed with bile duct cancer and told he had less than three months to live. Id. A lawyer for Families Against Mandatory Minimums concluded that only about two dozen inmates get compassionate release a year, despite there being thousands who could be eligible for the program. Id. Rice was denied medical parole because the warden believed he should spend more time in prison, triggering an appeal process. Id. In December 2012, Rice received his final denial while bedridden and unable to move. Id. Rice's cancer led to a decline in his health, making him unable to perform tasks such as walking and talking, and ultimately led to him dying in prison approximately three months after he was diagnosed with cancer. Id. Due to the higher security in prison hospitals, only certain family members were able to say their goodbyes to Rice. Id.
(6.) See Mary Price, Everywhere and Nowhere: Compassionate Release in the States, 5-6 n.3, FAMM (June 2018) https://famm.org/wp-content/uploads/Exee-Summary-Report.pdf (explaining significant changes to federal sentencing guidelines). The new proposal sets forth medical conditions, age, and family support as circumstances that must be met to prompt the Bureau of Prisons (BOP) to ask for permission from the court to grant medical parole. Id.
(7.) See infra Parts II.A-B and Part III-IV (explaining how United States should adopt compassionate release as in China).
(8.) See infra Parts II.A-B (examining differences for parole in United States and China).
(9.) See infra Part III (explaining differences between parole functions in United States and China).
(10.) See infra Part IV (proposing recommendations for compassionate release implementation across entire United States).
(11.) See infra Part V (suggesting United States must create and implement policy for compassionate release for inmates).
(12.) See Parole in the United States: People & Policies in Transition, DIALOGUE (Dui Hua, S.F., Cal.), Nov. 29, 2009, https://duihua.org/wp/?p=2704 (explaining history of traditional parole system in United States and how it functions today). Prison as "a place of punishment was being replaced by the concept of prison as a place of reform," beginning in the nineteenth century. Id. Historically, therefore, when a judge set an indeterminate sentence, "[t]he amount of time a prisoner actually served reflected his or her willingness to reform." Id. At parole hearings, the parole board evaluated the inmate's record and behavior while incarcerated, his past actions and remorse, and his plans if he were released. Id. "If the board was satisfied with the inmate's improvement, it would parole the inmate back into the community to serve out the remainder of his sentence." Id. See James T. McCafferty & Lawrence F. Travis, History of Probation and Parole in the United States, in 1 ENCYCLOPEDIA OF CRIMINOLOGY AND CRIMINAL JUSTICE 2217, 2217-20 (Gerben Bruinsma & David Wcisburd eds., 2014) (describing how parole came about in United States). The development of parole in the United States came from church intervention and statutory reforms in England in the early nineteenth century, when practices like judicial reprieve and release on recognizance were codified. Id. at 2218-19. "The Progressive Era of corrections in the early twentieth century survived legal challenges to the discretionary powers inherent in probation and parole... [and] helped formalize the systems of how offenders secure an early release and how they are supervised in the community." Id. at 2220. "In 1870... prison reformers pushed for the creation of parole... for United States prisons," and the first U.S. prison to adopt indeterminate sentencing for prisoners was in Elmira, New York. Id. at 2220. See also EDWIN H. SUTHERLAND ET. AL., Release from Prison, in PRINCIPLES OF CRIMINOLOGY 548, 557-58 (11th ed. 1992) (showing when parole came into existence in United States). In 1884, parole was "first extended to state prisons in Ohio, and... adopted by twenty-five states by 1898." Id. at 557. By 1922, forty-five states had adopted a parole system; by 1944, all states had parole statutes. Id. See also Jean Trounstine, Why Keep Dying Prisoners Behind Bars?, Bos. MAG. (Dec. 4, 2012, 12:30 PM), http://www.bos-tonmagazine.com/news/2012/12/04/massachusetts-elderly-prisoners-dying-behind-bars/ (detailing arguments for reforming Massachusetts' compassionate release system). Although recidivism is rising and dangerousness is decreasing, the sick and dying are not being released from prison. Id. "The only way a gravely ill prisoner can try for clemency is to apply for a pardon or, more commonly, for a commutation," to remit what is left to be served of an inmate's sentence "in times of 'exceptional circumstances.'" Id.
(13.) See Sixteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1985-1986: IV. Sentencing, Probation, and Parole, 75 GEO. L.J. 1129, 1195 (1987) (describing main purpose of parole). Although prisoners are released into the community, they have significant restraints with their freedom. Id. Special parole conditions regarding state confinement are implemented with the expectation of litigation or child visitation. Id. at 1196. Parolees are also subject to warrantless searches at any time their parole officers deem necessary. Id. at 1195. See John R. Turner et al., Is it Reasonable? A Legal Review of Warrantless Searches of Probationers and Parolees, 27 CRIM. JUST. POL'Y REV. 684, 685 (2016) (explaining reasonableness of warrantless searches of parolees). In most states, parolees have a reduced expectation of privacy and may be searched without prior notice. Id. at 684, 686. Unlike law enforcement, probation officers need not have probable cause, nor reasonable suspicion of criminal activity to justify a search of a parolee. Id. at 685, 696.
(14.) See Sixteenth Annual Review of Criminal Procedure, supra note 13, at 1195 (detailing conditions following prisoner's release). Parolees are subject to significant limitations regarding their freedom. Id. at 1196. Many times, a parolee is confined to his or her home state, and cannot travel to another state without a parole officer's permission. Id. See also COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF COLUMBIA, STRATEGIC PLAN FISCAL YEARS 2014-2018, 1, 20 [hereinafter STRATEGIC PLAN FISCAL YEARS 2014-2018], available at https://www.csosa.gov/wp-content/uploads/bsk-pdf-manager/2018/03/csosa-strategic-plan-fy2014-fy2018.pdf (listing general conditions of release for parole). Some of the most important conditions include not violating any laws, not associating with anyone with a criminal record, maintaining employment, refraining from using drugs and alcohol, paying fines, participating in periodic drug tests, and staying in contact with an assigned parole officer. Id. at 11. Any violation of the conditions can result in an inmate returning to prison to continue serving the original fixed sentence. Id.
(15.) See STRATEGIC PLAN FISCAL YEARS 2014-2018, supra note 14, at 11 (discussing consequences for parole violations). Sanctions vary depending on the seriousness of the parole violation. Id. The most frequently used sanctions include community service, curfews, electronic monitoring, or a program focused on treatment. Id.
(16.) See Paul Heroux, Reducing Recidivism: The Challenge of Successful Prisoner Re-Entry, HUFFINGTON POST (Oct. 17, 2011), https://www.huffingtonpost.com/paul-heroux/reducing-recidivism-the-c_b_929510.html (discussing how parole affects recidivism). Parole is important to help with recidivism because the inmates are released from prison and are supervised by parole officers. Id. Although supervision does not keep inmates from reoffending, post-supervision is important to reduce recidivism, not merely completely abolishing. Id.
(17.) See Recidivism, BLACK'S LAW DICTIONARY (10th ed. 2014) (defining recidivism as "tendency to relapse into" habitual criminal "activity or behavior"). In criminal law, a person repeating their criminal conduct is considered a recidivist. Id. Usually, a recidivist commits the same crimes that he or she has been convicted of previously. Id.
(18.) See Joan Petersilia, Parole and Prisoner Reentry in the United States, 26 CRIME & JUST. 479, 483-84 (1999) (identifying re-offense rates for parolees rejoining society).
(19.) See Rehabilitation, BLACK'S LAW DICTIONARY (10th ed. 2014) (distinguishing rehabilitation's meaning within criminal law context); Holly A. Harrison, Violations of the Double Jeopardy Prohibition Under the Federal Parole Release System, 63 B.U.L. REV. 673, 677 (1983) (explaining how rehabilitation affects parole decisions). Individual case evaluations of inmates continue to be heavily relied on for determining if an inmate is rehabilitated. Harrison, supra.
(20.) See Harrison, supra note 19, at 677-78 (elaborating on how parole boards evaluate inmate's rehabilitation). Deciding whether an inmate is rehabilitated is determined at the Board's discretion. Id. at 681. Critics of "penal rehabilitation programs charged that the rehabilitation-orientated penal system was a failure and that rehabilitation was an unsuitable objective for incarceration." Id. at 678.
(21.) See Daniel S. Medwed, The Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 IOWA L. REV. 491, 496 (2008) (listing what information parole boards consider in deciding an inmate achieved rehabilitation). Inmate participation to further the rehabilitation process is a pivotal focal point when deciding parole. Id. at 514. Parole boards view whether the inmate presents a "sincere admission of guilt at a hearing as evidence of that inmate's cooperation in his own rehabilitation." Id. The board determines during the hearing whether the inmate's apology and remorse are genuine or is an act put on by the inmate just to be released, and really are "truly unrepentant... [or is] factually innocent and motivated solely by the desire for liberty in choosing to 'admit' guilt." Id. at 516.
(22.) See Isaac Fulwood, Chairman, U.S. Parole Commission, History of the Federal Parole System, U.S. DEPT. OF JUST., 1, 7 (May 2003), https://www.justice.gov/sites/default/files/uspc/legacy/2009/10/07/history.pdf (explaining U.S. origin of parole). Before the mid-nineteenth century, judges set a specific amount of time in which the prisoner has to serve. Id. See also Charlie Savage, More Releases of Ailing Prisoners are Urged, N.Y. TIMES, May 1, 2013, http://www.nytimes.com/2013/05/02/us/report-urges-more-compassionate-reIease-of-federal-prisoners.html (describing benefits of releasing ailing prisoners). In 2013, Inspect General Michael E. Horowitz led an inquiry for compassionate releases, and determined that "[t]he federal Bureau of Prisons could save taxpayer money and reduce prison overcrowding if it better managed a program for the 'compassionate release' of inmates." Id.
(23.) See ROBERT D. HANSER, COMMUNITY CORRECTIONS 12-15 (SAGE Publications, 2d ed., 2014), available at https://us.sagepub.com/sites/default/files/upm-binaries/86776_Chapter_1_Definitions%2C_History%2C_and_Development_of_Community_Corrections.pdf (laying out United State's adoption of Great Britain's parole decisions). When Alexander Maconochie was appointed governor at Norfolk Island, a English penal colony in New South Wales, he "proposed a system in which the duration if the sentence was determined by the inmate's work habits and righteous conduct... in contrast to the use of indeterminate sentencing" structure used on Norfolk Island. Id. at 12-13. "Maconochie created a 'mark system' in which "marks" would be earned by an inmate" for good behavior and hard work. Id. at 13. Inmates "were given 'marks' and moved through phases of supervision until they finally earned full release." Id Similarly, in the 1850s, Sir Walter Crofton, as Ireland's prison system director, developed a "classification system" for Irish prisons, "borrow[ing] from Maconochie's system on Norfolk Island." Id at 14-15.
(24.) See James J. Beha II, Redemption to Reform: The Intellectual Origins of the Prison Reform Movement, 63 N.Y.U. ANN. SURV. AM. L. 773, 778 (2008) (explaining prison reform movement). In the United States, a report published in 1867, which comprehensively assessed the American penal system, "confirm[ed] the emerging consensus that the nation's prison systems were dysfunctional" and did not prioritize inmate rehabilitation. Id. at 791. In 1870, the First National Prison Congress developed a series of reforms, the centerpiece of which "was the combination of broad indeterminacy [in sentencing] with a rehabilitative or therapeutic regime in the prison." Id. at 788. "The proposed system was first implemented at Elmira under the supervision of [Zebulon] Brockway." Id at 799. The Elmira System of Classification and Marks divided inmates into three grades; "[t]he new prisoners began in the intermediate grade," the middle tier. Id at 801-02. "In order to facilitate the system of classifications, officials at Elmira instituted a 'mark' system, evaluating each inmate monthly on the basis of three criteria--performance at school, performance at work, and general demeanor--and awarding them a maximum of three credits in each area." Id at 802. Inmates who achieved the highest marks "could be eligible for release in as little as a year, regardless of their statutory sentences." Id Along with evaluating inmates using the point system, Elmira's Board of Governors "held monthly meetings to discuss governance issues and quarterly meetings to make decisions about parole." Id. at 804.
(25.) See MASSACHUSETTS PAROLE BOARD, 2007 ANNUAL STATISTICAL REPORT 1, 4 (2007), http://www.mass.gov/eopss/docs/pb/2007annualreport.pdf [hereinafter 2007 ANNUAL STATISTICAL REPORT] (discussing mission statement of Massachusetts Parole Board). The first Massachusetts parole officers' duties included "assisting released prisoners in finding jobs and providing them with tools, clothing and transportation at state expense." Id. at 4. The Massachusetts Parole Board's mission is "to make decisions about whether to release an inmate on parole, taking into account input from victims, members of the law enforcement community, District Attorneys, correctional staff, treatment providers and the public. Id.
(26.) See B. H.2173, 187th Leg., available at https://malegislature.gov/Bills/187/House/H2173 ("Download PDF," then follow "H2173" to download) (Mass. 2011-2012) (proposing compassionate release program in Massachusetts). This petition became the start to the compassionate release program becoming adopted in Massachusetts. Id. at 3. This statute sought to address the program being used in Massachusetts facilitates. Id. The standard was whenever a physician at the prison facility determined the prisoner to be terminally ill or expected to die in custody, he was released. Id. The statute specifically pushed to place inmates who qualify into hospitals and hospice care, rather than keeping the prisoner behind the prison walls. Id. The Commissioner will monitor the inmates released on parole and if it is determined the prisoner is not complying with the guidelines may be returned to prison to finish out one's sentence. Id.
(27.) See 2007 ANNUAL STATISTICAL REPORT, supra note 25, at 5 (discussing roles of each unit in Massachusetts Parole Board). First, the executive clemency unit, in charge of the pardons and commutations, works with the Board during the investigation process, assembles records, and manages the hearing process. Id. Second, field services controls releases and discharges to and from supervision, conducts the community supervision of parolees by assisting new parolees release plans. Id. Field services also assists inmates reintegrating back into the community, investigates parole violations, and transports parole violators. Id. The legal unit conducts the litigation of all parole in state courts, oversees agency employment matters, creates and enforces agency regulations and policies, and drafts parole legislation. Id. Third, interstate compact controls interstate supervision investigations, coordinates the transfer of interstate parolees leaving and entering the state. Id. Interstate compact also supervises Massachusetts inmates paroled to Immigration and Customs Enforcement.. Id. Fourth, the warrant and apprehension unit breaks down warrants and issues warrants, apprehends parolees that do not follow parole supervision, and enters warrants into the "Commonwealth's Criminal Justice Information System (CJIS)." Id. Fifth, "|t|he victim service unit provides parole-related information, support, referral, and outreach services to all crime victims, witnesses and other individuals who are CORI-certified by the Criminal History Systems Board." Id. The victim services unit's job is to notify victims of hearings, set up client services, and attend hearings. Id. Information technology manages all applications and support users. Id. Lastly, the program unit coordinates programs for inmates on parole or inmates being released. Id. These programs include substance abuse, recovery and re-entry centers, and transitional housing programs. Id.
(28.) See Roy Walmsley, World Prison Population List, PRISON STUD. 1, 9, http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition_0.pdf (last visited Nov. 18, 2018) (describing China's prison population). China "has 119 prisoners per 100,000." Id.
(29.) See Crime and Penitentiary System in China-Statistics & Facts, STATISTA, https://www.statista.com/topics/2253/crime-and-penitentiary-system-in-china/ (last visited Nov. 19, 2018) (listing China's incarceration statistics). In July 2018, 1.7 million individuals were incarcerated in China. Id. China had the largest prison population among Asian countries, and "more than four times as large [a population] as the runner-up, India." Id. "With a population of about 1.4 billion, the country was the world's most populous country in 2013." Id. China has a unique feature in its penitentiary system, which is a system of "re-education through labor." Id. "Sentences under re-education through labor were issued as a form of administrative punishment rather than according to criminal law." Id. These facilities are disfavored due to the physical abuse practiced within them. Id. The re-education through labor system, was abolished at the end of 2013. Id.
(30.) See Jeffrey Hays, Prison and Labor Camps in China, FACTS AND DETAILS (2003), http://factsanddetails.com/china/cat8/sub50/item1646.html (discussing China's largest prison population and programs within each facility). China has 670 prisons and approximately 1.5 million prisoners. Id. There are approximately 1.3 million prisoners in the "reform through labor camps." Id. This specific type of prison is among the harshest. Id. On the other hand, there are approximately 260,000 in the "reeducation through labor prisons" which are slightly less harsh. Id. The goal of these labor prisons is to punish and reform for the crimes they committed in society. Id. In these labor prisons, the inmates are able to gain skills, such as, knitting, or making Christmas lights, that will be useful when trying to gain employment after they are released. Id. See also INFORMATION OFFICE OF THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA, CRIMINAL REFORM IN CHINA, sec. 8-8 (1992) [hereinafter CRIMINAL REFORM IN CHINA], available at http://www.china.org.cn/e-white/criminal/8-8.htm (discussing reform through labor benefits). "Requirements for being released on parole for medical treatment are more flexible for juvenile, elderly, and female prisoners. Statistics show that 1.91% of the prisoners in the country were released on parole for medical treatment in 1990 and 1.94% in 1991." Id.
(31.) See Hays, supra note 30 (explaining differences between two types of Chinese prisons). Inmates are kept at reeducation prisons "until the (sic) 'change their thinking' and 'raise their level of understanding.'" Id. Under this system, inmates can be held "for up to four years" before making a case before a prosecutor or judge. Id. "The policy of 're-education through' labor has been used to imprison prostitutes, petty thieves, people regarded as a threat to the government but who committed no crime and crack down on groups such as Falun Gong and Muslim Uighars in Xinjiang." Id. Re-education through labor gives sentences to inmates for a one to three-year term, and can be given without a trial. Id.
(32.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-4 (discussing China's push for reform through labor). China forces inmates to participate in meaningful and productive work in order to punish and reform. Id. This is done under the theory that labor helps criminals realize that "social wealth does not come easily, fosters a love for work." Id. It forces inmates to become law-abiding citizens, and helps inmates gain responsibility experience. Id. Labor helps inmates stay physically fit, as well as mentally fit. Id. This type of labor also helps inmates gain personal experience that can be used in the real world after they are released from prison. Id.
(33.) See Life Without the Possibility of Parole, DIALOGUE (Dui Hua, S.F., Cal.) (2012), https://duihua.org/wp/wp-content/uploads/2012/08/nl48_web.pdf (comparing China's and United States' life without parole policies). Arguably, China's extensive use of the death penalty extinguishes the need for life without parole. Id. at 3. According to the Dui Hua Foundation, "China executed 4,000 individuals in 2011." Id. "Chinese lawmakers have rejected the [life without parole] sentence at least in part because of their support for rehabilitation" among prisoners. Id. See also Katie Lannan, Gov. Baker signs criminal justice reform bill, WCVB (Apr. 13, 2018, 5:44 PM), http://www.wcvb.com/article/gov-baker-signs-criminal-justice-reform-bill/19811470 (proposing limitations to crimes eligible for compassionate release).
(34.) See Life Without the Possibility of Parole, supra note 33, at 1 (discussing juvenile sentences and life without parole). "Although juveniles [in China] who commit 'extremely serious crimes' can be given up to life imprisonment, maximum terms are rarely used and are discouraged." Id. at 3. National policies instead focus on juvenile rehabilitation by "'combining leniency and severity' and 'education first, punishment second.'" Id. at 3. "In 1997, revisions to China's Criminal Law lowered the maximum sentence for juveniles to life imprisonment from 'death with two-year reprieve.'" Id. This is a death sentence changed to a term of life, or twenty-five years with the possibility of parole. Id. "By 2006, people sentenced to death with two-year reprieve generally served around [eighteen] years, while prisoners sentenced to life imprisonment served approximately [fifteen] years." Id.
(35.) 466 Mass. 655 (2013).
(36.) See Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 14 (2015) (highlighting Massachusetts' abolishment of juvenile life sentences without parole); Life Without the Possibility of Parole, supra note 33, at 2 (discussing changes to juvenile life sentences). A United States Supreme Court decision moved the country toward international norms by abolishing life sentences without parole for juvenile offenders "for a crime in which no one was killed" in 2010. Life Without the Possibility of Parole, supra, at 1. The decision took children's level of development into consideration. Id. at 2. See Mass. Juv. Life Sentence Commission, Report of the Juvenile Life Sentence Commission, ST. LIBR. MASS. 4 (Aug. 12, 2016), https://archives.lib.state .ma.us/handle/2452/422926 (click "ocn956504468.pdf") (highlighting cases bringing major change to life sentences for juveniles). The changing of juvenile parole started in 2012, when Miller v. Alabama, 567 U.S. 460 (2012), was decided. Id. at 3. The U.S. Supreme Court held that "the Milter decision applies retroactively and imposed a categorical bar on the imposition of life without parole sentences for juveniles convicted of murder." Id. at 4. The factors that the Supreme Court used were supported by:
Scientific studies that documented the parts of the brain involved in behavior control that do not reach full maturity until age twenty-five and concluded, "those [scientific] findings--of transient rashness, proclivity for risk, and inability to assess consequences--both lessened a child' moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed."
(37.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-8 (explaining China's point system for assessing prisoners' "day-to-day behavior"). The point system is based on "a fixed number of points" for inmates to earn. Id. Points are awarded to inmates who display positive behavior, and lose points for displaying poor behavior. Id. The results are provided to inmates on a monthly basis. Id. "Prisoners have the right to question or protest their scores." Id. See also Zhonghua Renmin Gongheguo xing fa ([phrase omitted](2017[phrase omitted]) [phrase omitted]) [Criminal Law of the People's Republic of China (2017 Amendment PKULAW Version)] (promulgated by the Standing Comm. Nat'l People's Cong., July 1, 1979, amended Nov. 4, 2017, effective Nov. 4, 2017), art. 81-86, translated in LAWINFOCHINA (PRC) (defining parole in China). Section 7 describes the breakdowns of sentences given to inmates and parole eligibility based on the types of crimes and imposed sentences. Id.
(38.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-8 (describing point system furthering reform of prisoners). This type of point system further pushes inmates to reform. Id. Inmates are rewarded or punished on a month-to-month basis that is made publicly available, meaning the information is publicized as standard released. The points are established from the inmate's day-to-day behavior as they undergo prison reform. Id. Inmates who show a positive attitude will be rewarded for their commitment to reform, while inmates who show negative attitudes and break prison regulations will not receive positive reform points. Id. "According to statistics, in 1990 16.38% of all imprisoned criminals in the whole country had their sentences commuted or were released on parole, and in 1991 the figure was 18.35%." Id. Inmates who commit the most heinous crimes, and are not sentenced to death immediately, still have the opportunity to reform during a set two-year period. Id. If an inmate shows true repentance during the probationary period, their sentence can be changed to life imprisonment, or upon exemplary behavior, have their sentences reduced fifteen to twenty years. Id. In China, approximately 99% of inmates have shown they have been reformed during this two-year probationary period and have had their sentences reduced. Id.
(39.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-8 (discussing early release for inmates with less serious crimes). In China "[i]n 1991, over 65,000 criminals had their sentence suspended." Id. According to the Chinese Criminal Code, the country's early release and suspended sentencing policies "allows [criminals] to stay with their families, keep their jobs and remain in a normal social environment." Id. Letting inmates be in society furthers their reform to greater education, and enables them to become better members of society. Id.
(40.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-8 (defining inmate qualifications for medical release). The People's Court in China is the ultimate decision maker on whether an inmate is released early from prison. Id. Medical parole is granted for those seriously ill prisoners, including those serving a set term or life imprisonment. Id. The requirements for medical parole are more flexible for prisoners who are juveniles, female, and elderly. Id. Of those incarcerated in China, "[s]tatistics show that 1.91% of the prisoners in the country were released on parole for medical treatment in 1990 and 1.95% in 1991." Id.
(41.) See Systemic Sickness: Diagnosing the Ills of Medical Parole in China, DIALOGUE (Dui Hua, S.F., Cal) (2010), https://duihua.org/wp/?p=2608 (listing medical paroles of prisoners announced by Dui Hua). Generally, early release may be given to prisoners "who exhibit exceptional behavior in prison." Id. If early release is granted, the decision and conditions upon release must be agreed upon by the court and the parolee. Id.
(42.) See China Releases Ngawang Choephel on Medical Parole, INT'L CAMPAIGN FOR TIBET (Jan. 20, 2002), https://www.savetibet.org/china-releases-ngawang-choephel-on-medical-parole/ (explaining release of Ngawang Choephel). Ngawang Choephel was arrested in September 1995 and "imprisoned by the Chinese government for engaging 'in separatist activities.'" Id. After serving six years, Choephel was "the first high-profile Tibetan prisoner to be issued early release." Id. After being released, Choephel returned to the United States on a tourist visa for medical treatment, and then was released from the United States to India. Id. See also 1,400 prisoners released in China on compassionate grounds, TIMES OF INDIA (June 4, 2010), https://timesofindia.indiatimes.com/world/china/1400-prisoners-released-in-China-on-compassionate-grounds/arlicleshow/6012096.cms (discussing number of prisoners released on compassionate grounds). 1,400 prisoners were released on compassionate release grounds in China. Id. "Of the 1,400 prisoners, 632 were elderly, 160 handicapped and 604 severely ill, said Ma Chengzu, Director of the Department." Id.
(43.) See Press Release, Did Hua Found., Statement on Jigme Sangpo's Arrival to the United States (Apr. 3, 2002), available at https://duihua.org/wp/?p=1938 (discussing release of elderly Chinese prisoner, Jigme Sangpo). Jigme Sangpo was sentenced to prison for counterrevolution. Id. Sango left China due to the need of proper medical treatment in the United States with a condition never to return to China. Id. See also United States Welcomes Takna Jigme's Release, INT'L CAMPAIGN FOR TIBET (July 20, 2002), https://www.savetibet.org/united-states-welcomes-takna-jigmes-release/ (discussing reason why Jigme is paroled to United States). "His release on medical parole and the recent permission for him to travel to the United States for medical treatment is a result of the active involvement of several Administrations, the Department of State, and or diplomats posted in China, Congress, private Americans, and the community of non-government organizations." Id. See also Press Release, Dui Hua Found., Statement on Jigme Sangpo's Arrival in the United States (July 13, 2002). After his release from prison, Sangpo expressed a desire to seek out medical treatment in the United States. Id. With the help of John Kamm, the Executive Director of the Dui Hua Foundation, the American and Chinese governments allowed Sangpo to arrive in the United States and serve the rest of his nine-year sentence with his family on house arrest. Id.
(44.) See Press Release, Dui Hui Found., Statement on the Release of Xu Wenli (Dec. 24, 2002), https://duihua.org/wp/?page_id=1932 (explaining release of Xu Wenli to United States). Id. Wenli was convicted of subversion, and served thirteen years before being granted medical parole. Id. Wenli suffered from Hepatitis B, and was ordered to the United States to receive medical treatment and be reunited with his daughter, who will be his caretaker. Id.
(45.) See Press Release, Dui Hua Found., Statement of the Medical Parole of Wang Youcai (Mar. 4, 2004), available at https://duihua.org/statement-on-the-medical-parole-of-wang-youcai/ (explaining release of Wang Youcai to United States). Youcai was convicted of subversion and sentenced to eleven years in prison. Id. After serving approximately six years, Youcai was granted medical parole for bronchial disorders, tracheitis, and myocarditis, and ordered to gain medical treatment in the United States. Id. In order for a prisoner to be released to another country, the governments must come to an agreement together regarding the prisoner's release. Id. Many times, when a prisoner is scheduled for early release, the country's governments will reach out to express desire to accept the inmate. Id. In Youcai's case, the American and Chinese government kept the desire to parole to another country quiet. Id. Youcai became an American interest because Clark Randt Jr., the American Ambassador in China used this story in a recent speech. Id.
(46.) See Jeffrey Hays, Rebiya Kadeer and Blacklisted American Xinjiang Experts, FACTS AND DETAILS (2008), http://factsanddetails.com/china/cat5/sub89/item1903.html (discussing release of Rebiya Kadeer to United States). Kadeer was sentenced to eight years in prison for "revealing state intelligence." Id. After approximately five years in prison, she was released on medical parole. Id. The United States weighted in on the resolution of her case, and lobbied for her release. Id.
(47.) See Systemic Sickness, supra note 41 (diagnosing ills of medical parole in China). "For instance, [forty-four] prisoners in Henan Province were granted medical parole around National Day in 2009, when the prison bureau reduced the sentences of 2,485 prisoners to mark the 60th anniversary of the founding of the People's Republic of China." Id. See Dui Hua Found., Parole, Sentence Reductions Benefits Hundreds of Prisoners in Beijing Before Spring Festival, DUI HUA: HUM. RTS. J. (Jan. 22, 2009), https://www.duihuahrjournal.org/2009/01/parole-sentence-reductions-benefit.hlml (assessing popular times for early release in China). Right before the Spring Festival holiday in China, 144 prisoners were released on parole. Id. Agency leaders are instructed to be more lenient by the Beijing party leaders when assessing parole eligibility for elderly inmates, inmates falsely accused of crimes, female inmates, juveniles, and those families facing major difficulties. Id. Decisions must be particularly made and carefully decided when dealing with inmates at risk of committing more serious violent crimes. Id. "The types of prisoners in Beijing who received parole and sentence reductions are similar to those paroled in Sichuan in the latter half of 2008, when the Sichuan prison system released more than 1,000 prisoners categorized as 'elderly, infirm, or disabled.'" Id. See also Dui Hua Found., Clemency for Prisoners on PRC's 60th Anniversary Comes from Provinces, Not Central Government, DUI HUA: HUM. RTS. J. (Oct. 6, 2009), https://www.duihuahrjournal.org/2009/10/clemency-for-prisoners-on-prcs-60th.html (determining reasons why early release is granted on national holidays). "Compared to the seldom-used pardon procedure, sentence reduction and parole are more routine and better defined legislatively, an d this may in part explain why they were used to show clemency during the anniversary period." Id.
(48.) See Brie A. Williams et al., Balancing Punishment and Compassion for Seriously Ill Prisoners, ANNALS OF INTERNAL MED. (July 10, 2011), http://annals.org/aim/fullarticle/747043/balancing-punishment-compassion-seriously-ill-prisoners# (underlying history and rationale of compassionate release). A federal statue regarding compassionate release arose under the Sentencing Reform Act of 1984. Id. All but five states currently have a form of compassionate release throughout the United States. Id. "Over the past [three] years, [twelve] states passed legislation to expand early release programs for dying and incapacitated persons." Id Incarceration focuses on four principles: (1) retribution, (2) rehabilitation, (3) deterrence, and (4) incapacitation. Id. Terminally ill prisoners may lack the capacity to partake in achieving each of these four principles. Id.
(49.) See 120 MASS. CODE REGS. [section][section] 200.01-200.02 (2017) (listing parole eligibility requirements including definitions and sentence calculations). "A house of correction sentence, or a sentence of sixty days or more, makes an inmate eligible for parole." Id [section] 200.02(1). A house of corrections inmate should have a parole eligibility date that is half of their total term of incarceration or two years, whichever sentence is shorter." Id. When an inmate is serving a "state prison term of mandatory minimum sentence," he or she is parole eligible after serving the minimum number of years required by statute "minus deductions, if applicable, for earned good time." Id. [section] 200.02(2).
(50.) See Editorial, Compassionate release in the USA, 381 LANCET 1598, 1598 (May 2013), http://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(13)61007-7.pdf (criticizing lack of national policy for compassionate release). For example, the life expectancy qualifying inmates for compassionate release program varies from state to state; in some states, less than six months left to live can qualify an inmate for consideration, but in others an inmate can have no more than a twelve-month life expectancy. Id. Decisions can take up to sixty-five days before an inmate receives a decision, leading many inmates to die before ever knowing the decision. Id. Although releasing an inmate back into the public poses a threat to society, only 3.5% of released inmates were rearrested within three years of being released. Id. That is compared to the 41% of inmates who are released outside of the compassionate release program. Id. "Additionally, if 100 inmates with serious medical conditions were released from medical referral centres (sic) each year, the Bureau of Prisons could save at least [USD]5.8 million per year, although benefits in terms of medical costs from freeing inmates have not been thoroughly investigated." Id. See also Brie Williams, Alex Rothman & Cyrus Ahalt, For Seriously Ill Prisoners, Consider Evidence-Based Compassionate Release Policies, HEALTH AFF.: BLOG (Feb. 6, 2017), https://www.healthaffairs.org/do/10.1377/hblog20170206.058614/full/ (summarizing U.S. Sentencing Commission's reform of case referrals guidelines for terminally-ill federal prisoners). The new guidelines instruct federal judges to consider motions for compassionate release into a line with current medical knowledge. Id. "In particular, three key health-focused reforms, grounded in medical research, represent model policy components that the Bureau of Prisoners should apply and the state departments of corrections should seek to replicate." Id See also Alan Ells & Mark H. Allenbaugh, Department, Federal Sentencing in the U.S. Sentencing Continues to Make Fundamental Fixes to the Sentencing Guidelines, 31 CRIM. JUST. 50, 50 (2017) (finding reduction of requirements for inmates). On April 15, 2017, the United States Sentencing Commission voted to make fundamental fixes to the United States Sentencing Guidelines. Id. "During this amendment cycle... the Commission addressed needed reform expanding the invocation of compassionate release for elderly and/or seriously ill inmates." Id. According to the Sentencing Court:
"Upon motion of the Director of the Bureau of Prisons," may reduce an inmate's sentence where it finds that:
(1) extraordinary and compelling reasons warrant such a reduction; or
(2) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. (18 U.S.C. [section] 3582(c)(1)(A)).
Id. See also Bill H.2173, supra note 26 (proposing petition for compassionate release in Massachusetts). Unfortunately, the bill was never passed. Id. See also Act of Apr. 4, 2018, ch. 69, 2018 Mass. Acts [section] 119A (proposing petition for compassionate release in Massachusetts). S.2371 recently passed through the Senate and the House of Representatives, and was enacted upon signing by Governor Charlie Baker. Id.
(51.) See Valeriya Metla, Aging Inmates: A Prison Crisis, L. STREET MEDIA (Feb. 15, 2015), https://lawstreetmedia.com/issues/law-and-politics/aging-inmates-prison-crisis/ (discussing increased costs for elderly inmates compared to youthful offenders). In 2015, elderly offenders accounted for approximately 16% of the overall prison population. Id. "Across the states, the proportion of prisoners [fifty-five] years and older range from 4.2[%] to 9.9[%]." Id. The majority of elderly American prisoners are male, whereas females constitute only 6% among aging prisoners. Id. Older prisoners are up to three times more expensive to house than youthful offenders. Id. "It costs around [USD]24,000 a year to house a young prisoner, but the expenses for an aging prisoner can be up to [USD]72,000 per year." Id. The main reason for the cost differences among inmates is medical costs. Id. Prisons housing aging and ill inmates resemble nursing homes, rather than prisons. Id. According to the North Carolina Department of Correction Division of Prisons' Aging Inmate Population Study:
Inmates are not eligible for federal health insurance programs such as Medicaid and Medicare, but by law are required to receive medical treatment. State and federal prisons cover all the costs. No matter whose responsibility it is to maintain prisons, taxpayers are the ones who pay for it. And as an aging prison population increases, health care costs will require more of the taxpayers' money.
(52.) See Bryant S. Green, Comment, As the Pendulum Swings: The Reformation of Compassionate Release to Accommodate the Changing Perceptions of Corrections, 46 U. TOL. REV. 123, 137 (2014) (explaining criticism of compassionate release program). Between 2009 and 2011, the Office of General Counsel approved only fifty-five out of the eighty-nine requests because of the strict guidelines not being met. Id. at 138. See Casey N. Ferri, A Safety Valve: The Inadequacy of Compassionate Release for Elderly Inmates, 43 STETSON L. REV. 197, 199 (2013) (critiquing implementation of compassionate release). With a release rate of only 0.01 % for the entire prison population, there is no material effect on the prison system. Id. at 198. This number has a low rate because of the "safety valve" considered when releasing prisons back into society. Id. at 220. See also Christie Thompson, Old, Sick, and Dying in Shackles, MARSHALL PROJ. (Mar. 7, 2018), https://www.themarshallproject.org/2018/03/07/old-sick-and-dying-in-shackles (criticizing states for not abiding by and granting qualified inmates compassionate release). The most popular reasoning on prison case files as to why they are being denied compassionate release is because of their risk to the public or the seriousness of the crime is too serious to justify release. Id. In 2013, approximately 60% of prisoners were denied compassionate release because of their criminal history or seriousness of the crime. Id. Another reason why many inmates are denied compassionate release is judges believe the medical requirement is not met. Id. In 2016, the Bureau of Prisons officials decided the compassionate release program was not to be used as a means to help overcrowding issues. Id.
(53.) See Andreas Mitchelle & Brie Williams, Compassionate Release Policy Reform: Physicians as Advocates for Human Dignity, 19 AM. MED. ASS'N J. ETHICS 854, 855 (Sept. 2017), https://journalofethics.ama-assn.org/sites/journalofethics.ama-assn.org/files/2018-04/peer2-1709.pdf (reforming compassionate release policy regarding human dignity). "Nationwide, compassionate release occurs relatively infrequently." Id. "Out of 2,621 requests for compassionate release during a one-year span in the Federal Bureau of Prisons, only [eighty-five] were granted." Id. See also Jamie Fellner, The Answer is No: Too Little Compassionate Release in US Federal Prisons, HUM. RTS. WATCH (Nov. 30, 2012), https://www.hrw.org/report/2012/11/30/answer-no/too-little-compassionate-release-us-federal-prisons (discussing fundamental human rights). "Keeping a prisoner behind bars when it no longer meaningfully serves any legitimate purpose cannot be squared with human dignity and may be cruel as well as senseless." Id.
(54.) See Nicole M. Murphy, Comment, Dying to Be Free: An Analysis of Wisconsin's Restructured Compassionate Release State, 95 MARQ. L. REV. 1679, 1694 (2012) (determining not all states' compassionate release programs fail). Texas' early release program releases approximately 170 prisoners per year. Id. at 1698. Since 2008, Michigan reports that more than 100 ill inmates are released under their compassionate release program. Id. at 1697. See also Kevin E. McCarthy & Carrie Rose, State Initiatives to Address Aging Prisoners, OFF. LEGIS. RES. (Mar. 4, 2013), https://www.cga.ct.gov/2013/rpt/2013-R-0166.htm (addressing Connecticut state initiatives for aging prisoners). Many states include aging inmates when dealing with compassionate release, along with medically ill inmates. Id. States are free to choose a cut off number, if they choose to determine an age requirement for early release inmates. Id.
(55.) See McCarthy & Rose, supra note 54 (explaining roles of correctional officers with sick inmates). Although correctional officers are trained in many areas, caring for terminally ill inmates should not be one of their tasks because of their lack of training and experience in the medical field. Id. Correctional officers care for prisoners battling cancer, dementia, and a variety of other health issues daily. Id. These particular inmates need specialized care from correctional officers in order to meet their health needs. Id. See also Correctional Officer Careers & Degrees: How to Become a Correctional Officer, LEARN HOW TO BECOME, https://www.learnhowtobecome.org/correctional-officer/ (last visited Nov. 19, 2018) (listing qualifications for correctional officers). Correctional officers are required to obtain the following before becoming a correctional officer; (1) obtain a high school diploma or GED, (2) obtain a bachelor's degree (if necessary), (3) pass the entrance exam, (4) enter a training academy, (5) gain experience, and (6) advance education with additional certificates or degrees. Id. As a result, there is no requirement for correctional officers to gain the knowledge and experience in the medical field. Id.
(56.) See Victoria Law, Aging, Sick, and Incarcerated: The Need for Compassionate Release, TRUTHOUT (June 18, 2016), http://www.truth-out.org/news/item/36464-aging-sick-and-incarcerated-the-need-for-compassionate-release (explaining low number of prisoners released on medical parole). According to Michael E. Horowitz, of the Office of the Inspector General, the Bureau of Prisons' compassionate release program is poorly managed and inconsistently implemented. Id As a result of these two major problems, inmates who are eligible are not aware of the program and die before their requests are considered. Id. Horowitz stated, "[s]pecifically, we found that the BOP did not have clear standards as to when compassionate release is warranted and whether particular medical or nonmedical circumstances qualify for consideration. BOP staff therefore had varied and inconsistent understandings of the circumstances that warrant consideration for compassionate release." Id.
(57.) See Milton J. Valencia, Among State Lawmakers, Compassionate Release of Inmates is Divisive Issue, Bos. GLOBE, Oct. 20, 2016, https://www.bostonglobe.com/metro/2016/10/19/program-that-could-benefit-dimasi-has-stalled-state-level/EmrtDbksrMS9j09JL7qycM/story.html (discussing early release of former house speaker from federal prison). DiMasi was sentenced to eight years in federal prison for a public corruption conviction in 2011. Id. During his incarceration, DiMasi battled cancer twice. Id. DiMasi, then-Speaker of the Massachusetts House of Representatives, received backlash following his early release, because Massachusetts did not recognize compassionate release of its inmates at this point in time. Id. This led to compassionate release programs to come about in Massachusetts, which was cleared by the Senate. Id. In the House, the proposal was sent to a committee to be studied, but was ultimately shut down in the legislative session. Id. According to the Department of Corrections, Massachusetts spends USD 100 million a year in health care for prisoners. Id. See Peter J. Koutoujian & Leslie Walker, Koutoujian and Walker: Compassionate Release Programs are Good Public Policy, METRO WEST DAILY NEWS (June 22, 2017), http://www.metrowestdailynews.com/opinion/20170622/koutoujian-and-walker-compassionate-release-programs-are-good-public-policy (criticizing Massachusetts for not implementing compassionate release programs at this time); Milton J. Valencia, No Program for Inmates at Life's End, Bos. GLOBE, Oct. 6, 2014, https://www.bostonglobe.com/metro/2014/10/05/commutation-sought-for-terminally-ill-convicted-murder/rRAZd0sO0tPH4qVOEAIzBK/story.html (illustrating example of inefficiency of incarceration of terminally ill inmates in states without compassionate release). U.S. District Court Judge Mark L. Wolf released Sal DiMasi from prison on compassionate release. Koutoujian & Walker, supra. Because of the aging and terminally ill populations, correctional officers are being put in charge of caring for these inmates. Id. "While corrections professionals are trained to address a myriad of situations, treating terminally ill and permanently incapacitated individuals should not be one of them." Id.
(58.) See Law, Aging, Sick, and Incarcerated, supra note 56 (describing lengthy waiting periods for early release decisions). Mary Ziman, a federally-convicted prisoner, suffered from debilitating fibromyalgia and was unable to work prior to her arrest. Id. In 2000, Ziman was arrested for conspiracy to distribute marijuana, methamphetamine, and cocaine and sentenced to twenty-seven years in federal prison. Id. "Now sixty-seven years old, Ziman has three cancerous spots on her left lung, require[ing] her to use three inhalers and has only 51 % lung capacity." Id. "She is also blind in one eye and has a cataract in the other." Id. "In March 2016... [Ziman] was hospitalized for a kidney infection stemming from an untreated urinary tract infection... where tests found she suffered from anemia, arthritis, a hernia and problematic potassium levels affecting her heart. Additionally, Ziman now requires hip and knee surgery." Id. In April 2016, her request for clemency for early release was denied by the Office of the Pardon Attorney. Id. With only one more avenue available for release, Ziman decided to petition for compassionate release and "if granted, be released home to her nine children, twenty-eight grandchildren, and two great-grandchildren." Id.
(59.) See Victoria Law, Aging People in Prison Face Continuing Denial of Compassionate Release, TRUTHOUT (July 26, 2016), https://truthout.org/articles/aging-people-in-prison-face-continuing-denial-of-compassionate-release/ (explaining Ziman denial of compassionate release). The paperwork stated, "from August 12, 2013, to September 12, 2014, 2,621federal prisoners applied for compassionate release. Of those, 320 requests were approved by the prisons. The [BOP] director... approved only 111 of those requests. Of those, only [eighty-five] people were ultimately released." Id. Staff and administrators denied Ziman's request for compassionate release. Id. '"Specifically the Medical Department advised, at the present time, that your medical condition does not represent extraordinary or compelling circumstances which would require a compassionate release, or a reduction in sentence,' stated the paperwork signed by Calvin Johnson, the warden." Id. The paperwork also stated:
Medical has also determined that the medical records show your recounting of the seriousness of your medical conditions and allegations are quite exaggerated. While you do have numerous conditions, and undoubtedly suffer from chronic pain, these conditions are not at stages which would reduce your life expectancy, or cause you to be incapable of functioning in your current prison environment. Furthermore, besides your proposed cataract surgery, there is no 'surgical intervention (necessary) to prevent further unnecessary deterioration of my health,' and no malignancy. In your present condition, you can remain under the usual careful medical care of the Federal Bureau of Prisons.
Id. Many were shocked by this result and disagreed with the decision, believing that Ziman had met all qualifications necessary for compassionate release. Id. In early July 2016, two weeks after her decision rendered, prison officials advised Ziman to apply for compassionate release again on the basis of age. Id. Ziman again filed for compassionate release and is awaiting a decision. Id.
(60.) See CRIMINAL REFORM IN CHINA, supra note 30, sec. 8-8 (illustrating parole standards in China); 1,400 prisoners released in China on compassionate grounds, supra note 42 (providing statistics for compassionate release in China).
(61.) See Lena H. Sun, China Dissident Wei Jingsheng Arrives in U.S., WASH. POST, Nov. 17, 1997, https://www.washingtonpost.com/archive/politics/1997/11/17/china-dissident-wei-jingsheng-arrives-in-us/3a476f7b-88fa-49c5-a564-316179a9f9e1/?utm_term=.e1a472033ef.3 (discussing Chinese political prisoner who traveled to United States for hypertension treatment). The theory behind sending Chinese inmates to the United States was preventing political opposition activity in China and giving Chinese prisoners access to proper medical care. Id. After an inmate is sent to fulfill their medical release in the United States, one may never return back to China. Id.
(62.) See Press Release, Dui Jua Found., Liu Xiaobo Granted Medical Parole (June 26, 2017), https://duihua.org/liu-xiaobo-granted-medical-parole/ (explaining medical parole of Liu Xiaobo). Liu Xiaobo was sentenced to eleven years in prison for "inciting subversion," and was granted medical parole for liver cancer treatment. Id. See Emily Rauhala & Simon Denyer, Nobel Peace Laureate Liu Xiaobo taken from prison for treatment of liver cancer, WASH. POST, June 26, 2017, https://www.washingtonpost.com/world/chinese-nobel-peace-laureate-liu-xiaobo-released-from-prison-on-medical-grounds/2017/06/26/7a68f098-5a46-lle7-a9f6-7c3296387341_story.html?utm_term=.e640bac37c52 (describing release of Nobel Peace Prize recipient to hospital). Not only did Liu Xiaobo "participate[ ] in the 1989 pro-democracy Tiananmen Square demonstrations, [but he also] became China's first Nobel Peace Prize winner in 2010 for advocating greater freedoms in his country. He is the only laureate serving a prison sentence." Id.
(63.) See Rauhala & Denyer, supra note 62 (illustrating conditions of medical parole for Chinese prisoners). Under Chinese law, although an inmate is technically "allowed to leave prison" on compassionate release, the inmate must still serve the fixed sentence "in a location other than the prison itself." Id. When he was released on medical parole, "it is likely that Liu Xiaobo [was] supervised by armed guards." Id.
(64.) See Adam Liptak, U.S. prison population dwarfs that of other nations, N.Y. TIMES, Apr. 23, 2008, https://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html (comparing U.S. prison populations to other countries). The United States leads the world in number of prisoners. Id. In 2008, "[t]he United States ha[d], for instance, 2.3 million criminals behind bars, more than any other nation." Id. In contrast, "China... is in distant second, with approximately 1.6 million people in prison." Id. Although Chinese prisons overcrowding incarceration rates are significantly lower than the rates in the United States. Id. China does not only offer prison as a sentence, but also allows for administrative detention which focuses on re-education through labor. Id.
(65.) See David M. Reutter, Massachusetts: Overcrowding Forces Changes in Correctional Facilities, PRISON LEGAL NEWS (Oct. 15, 2013), https://www.prisonlegalnews.org/news/2013/oct/15/massachusetts-overcrowding-forces-changes-in-correctional-facilities/ (discussing overcrowding problems in Massachusetts prisons). Budget cuts and longer prison sentences are two of the major problems causing prison overcrowding. Id. "The Massachusetts Department of Corrections (DOC) projects its 2011 population of 11,892 will grow by almost 24% to 14,735 by 2019. The state's expanding prison and jail populations have resulted in more prisoners being squeezed into cells designed for fewer occupants." Id. For example, at Norfolk County Correction Center, "a typical cell is the size of a small walk-in closet" for three inmates. Id. In those cells, there are two inmates assigned to bunk style beds, "while the third [prisoner] sleeps on a stack-a-bed--also known as a "canoe" or a "boat." Id. "Old Colony Correctional Center (OCCC)... was designed to house 480 prisoners but now holds over 800." Id. The housing situation in Bristol County Jail was compared to college-style dormitories as opposed to regular prison cells. Id. This comparison is due to the amount of cell mates each room has and the setup of the cells. Id. As a result of overcrowding, prison staff are put in dangerous situations because of the confinement of many inmates inside cells. Id.
(66.) See MASS. DEP'T OF CORRECTION, QUARTERLY REPORT ON THE STATUS OF PRISON OVERCROWDING, FIRST QUARTER (2015), http://www.mass.gov/eopss/docs/doc/research-reports/overcrowding/2015-1stqtr-overcrowding-report.pdf [hereinafter MASS. QUARTERLY REPORT ON PRISON OVERCROWDING] (reporting overcrowding and population data for Massachusetts prisons). Approximately eleven inmates in custody at the Middlesex Sherriff's Office between January 2012 and October 2015 qualified for medical release. Id. See also Public Safety Secretary: Inmates in Shirley Prison Riot Were 'Getting Ready For War,' CBS Bos. (Jan. 10, 2017, 4:40 PM), http://boston.cbslocal.com/2017/01/10/prison-riot-photos-shirley-souza-baranowski-correctional-facility-massachusetts-jail/ (determining inmate riots can overpower correctional staff). "[Forty-six] inmates... refused to be locked in their cells... after two fights broke out." Id. "Corrections officers were pulled from the unit and the inmates began destroying it using makeshift weapons and fire extinguishers." Id. The inmates were pepper-sprayed by police and eventually surrendered. Id.
(67.) See MASS. QUARTERLY REPORT ON PRISON OVERCROWDING, supra note 66, at vi (describing regulations for each security level). Prerelease is the least restrictive level of security. Id. Prerelease has minimal physical boundaries, and "inmates may leave the institution daily for work and/or education in the community." Id. Inmates in the prerelease security level "must be within eighteen (18) months of parole eligibility or release" and have intermittent supervision within the prison. Id. The minimum-security level houses inmates in "single, double, or multiple occupancy areas." Id. Inmate "supervision is intermittent" in this level. Id. Inmates also have the benefit of "contact visits and personal clothing." Id. The medium security level controls "inmate movement and interaction" with physical barriers, as well as rules and regulations. Id. Inmates are under supervision most of the time, but have the pleasure of contact visits. Id. The most severe security level is maximum security. Id. Personal clothing is not allowed, and contact visits may be allowed "at the superintendent's discretion." Id. Inmates are housed under a strict physical barrier to prevent escape, and are supervised by staff at all times. Id.
(68.) See Tim Toomey & Pat Jehlen, Opinion, Time to move terminally ill, aged convicts from ill-equipped prison, jail care facilities, CAMBRIDGE DAY (Apr. 15, 2016), http://www.cambridgeday.com/2016/04/15/time-to-move-terminally-ill-aged-convicts-from-ill-equipped-prison-jail-care-facilities/ (pushing for states to adopt medical parole to reduce prison overcrowding). In the opinion of Tim Toomey and Pat Jehlen, "[c]ontinuing to imprison dying inmates who no longer pose a danger to the public is pulling funds away from corrections initiatives that directly affect public safety, such as programming for inmates nearing release." Id. Unless action is taken, prisons continue to suffer health care costs and aging inmate populations. Id.
(69.) See Massachusetts Department of Correction Frequently Asked Questions, MASS. DEP'T OF CORRECTION, https://www.mass.gov/files/documents/2016/09/st/faq-jull-2016.pdf (last updated Aug. 2016) (examining data for overcrowding in Massachusetts prisons). Of Massachusetts' seventeen institutional facilities, the medium security facilities overcrowding rate is 132 percent. Id. "During the year 2015, there were 3,329 criminally sentenced inmates released from both [the Massachusetts Department of Corrections] facilities, as well as facilities in other jurisdictions." Id. Of these releases, 7.34 inmates were released on parole. Id.
(70.) See S. 2371, supra note 50 (enacting compassionate release program in Massachusetts). The plan includes, "a comprehensive written medical and psychosocial care plan specific to a prisoner." Id. 2018 Mass. Acts ch. 69 establishes guidelines in order to be considered for medical parole. Id. An inmate must have a condition that is deemed incurable by a licensed physician and will result in death within eighteen months. Id. The process starts when an inmate petitions for their release to the superintendent of their correctional facility. Id. Upon receiving the petition, the superintendent is to make a decision within twenty-one days either accepting or denying the petition. Id. If the decision to release the inmate is granted, the commissioner will notify the district attorney, prisoner, "victim, and victim's family" of the decision, and they will have the opportunity to write a written opposition. Id. If granted, the commissioner must write a written decision within forty-five days. Id. See also Rabiah Burks, FAAM: Reforms in New Massachusetts Criminal Justice Bill Going in the Right Direction, FAMM (Mar. 26, 2018), https://famm.org/famm-reforms-new-massachusetts-criminal-justice-bill-going-right-direction/ (explaining major changes to compassionate release in Massachusetts). 2018 Mass. Acts ch. 69 creates a form of compassionate release for terminally ill and permanently incapacitated prisoners. Id. According to Families Against Mandatory Minimums:
Massachusetts is one of a growing list of states to tackle the problem of how to release aging and ill prisoners who are expensive to incarcerate but pose little public safety threat. The bill's medical parole process would allow a prisoner, his lawyer and next of kin, or prison wardens and sheriffs to petition for release if the prisoner is terminally ill or incapacitated.
Id. The Department of Corrections would be the ultimate decision maker about compassionate release. Id. "The bill also gives a right of appeal to prisoners whose requests are denied and mandates stringent reporting requirements." Id. Mary Price, general counsel of Families Against Mandatory Minimums, stated:
With this legislation, Massachusetts is poised to take a big step toward improving compassionate release for prisoners with terminal or permanent debilitating conditions in the state... They are the most expensive to house and the least likely to reoffend. There is simply no public safety benefit from keeping such prisoners behind bars. Moreover, it is horrific for loved ones on the outside who have to watch a loved one deteriorate in a prison cell. This bill creates a tool for saving a prison bed for a more dangerous person, and reuniting a family when it matters most.
(71.) See Colin A. Young, Major Criminal Justice Reform Bill Clears Mass. Legislature With Little Opposition, NEW ENG. PUB. RADIO (Apr. 4, 2018), http://nepr.net/post/major-criminal-justice-reform-bill-clears-mass-legislature-little-opposition#stream/0 (discussing agreement between Senate and House of Representatives). The passage of the bill focuses on rehabilitation and treatment rather than punishment. Id
(72.) See Lannan, supra note 33 (amending new medical parole program). According to Massachusetts Governor Charlie Baker, amending the new bill would include changes to medical parole. Id. Governor Charlie Baker advises amending the new bill so that "[t]hose serving life without parole for first degree murder, sexually dangerous persons and sex offenders who have yet to be finally classified will be categorically ineligible." Id.
(73.) See 2018 Mass. Acts ch. 69, supra note 50 (setting forth strict compassionate release guidelines). The new bill implements guidelines and includes specific definitions for important language within the bill. Id. This bill provides specific definitions for words including medical parole plan, department, permanent incapacitation, secretary, and terminal illness. Id. Although enacted, Massachusetts must implement this bill in order for inmates to be released on medical parole. Id.
(74.) See Practical, Humanitarian Means Can Help Relieve Crowded Chinese Prisons, DUI HUA (Apr. 29, 2009), https://duihua.org/wp/?p=2819 (comparing United States and China prison overcrowding). Both of these countries account for the top two "largest prison populations in the world." Id. Each also enforces "strict crime laws to incarcerate criminals more readily and for longer periods." Id. For example, the United States has the "three strikes" law, and China has the "strike hard" laws. Id. Prison law and Chinese law address overcrowding issues, as well as inmate protections. Id. In order to ensure prisoner safety, inmates are given approximately five squares meters, however:
According to a study of [twenty-four] prisons in six Chinese provinces published in 1998, however, 42.2[%] of prisoners had less than three square meters and only 13.1[%] had more than five square meters. Another study released around the same time showed Chinese prisons nationally were 30[%] over capacity and 100[%] over capacity in Guangdong Province, where more than two dozen prisons are slater for construction by 2010, according to an article published recently in the Yangcheng Evening News.
Id. China has implemented "many cost-effective and humanitarian options" to reduce overcrowding in prisons. Id. China's main options are "parole, sentence reduction, and other forms of early release." Id. "Since last year, large-scale paroles have been reported for groups of prisoners who pose no threats to society, including the elderly and the infirm, who excessively burden prisons responsible for incarcerating and caring for them." Id. See also Crime Comparison Between China and United States, NUMBEO, https://www.numbeo.com/crime/compare_countries_result.jsp?country1=China&country2=United+States (last visited Oct. 9, 2018) (contrasting crime statistics in United States and China).
(75.) See Jenny Li & Larry Ong, 5 Chinese Prisons That Are the Size of Small Towns, EPOCH TIMES, https://www.theepochtimes.com/5-chinese-prisons-that-are-the-size-of-small-towns_1408741.html (last updated Jan. 6, 2017) (discussing sizes of Chinese prisons). Shenyang Prison City was built in 2003 and has an area of 0.39 square miles. Id. It cost USD120 million to build, and "is known as an important achievement of Bo Xilai." Id. Bo Xilai is known to be an ambitious Chongqing boss among the people in China, starting his political years as a prominent politician then becoming hated by society because of his life of corruption. Id. Xilai "was purged in 2012, [and] oversaw the construction of the 'prison city."' Id. Yancheng Prison was built in 2002 and has an area of 0.17 square miles. Id. This prison is known as "The White House" because of its particularized external architecture. Id. The wife of Bo Xilai, Gu Kailai, is currently serving a life sentence at Yancheng Prison for the murder of a British businessman, Neil Heywood, whose husband owned the million dollars that was demanded. Id. Yancheng is known as a "luxury prison." Id. "The palatial jail boasts neatly manicured lawns as large as three soccer fields (hence its other nickname, the Garden Prison), cells the size of an 'average New York City apartment,' a modern-looking, well-equipped gym, and even a cocktail lounge." Id. Most of the inmates at this prison are ex-Party members or well-known mob bosses, who get to enjoy life behind bars with electronics, fancy meals, and prostitute services. Id. In contrast, Shandong provincial Prison was built in 1962 and has an area of 0.14 square miles. Id. This prison holds inmates who are considered "spies" and "intelligence operatives." Id Because prisoners are stereotyped this way, many have been denied "monthly family visits, right to appeal sentences, and medical treatment." Id. Baoanzhao Regional Prison was built in 1954 and has an area of 0.13 square miles. Id. "The prison's civilian police take on multiple roles--teachers, doctors, nurses, regular staff--in the Water and Electricity unit, and are also residents in the area." Id. Heilongjiang Nehe Prison was built in 1955 and has an area of 53.54 square miles. Id. This prison has a reputation of inmates committing suicide. Id Prison studies show:
Numerous incidents of manslaughter and suicide at Nehe were reported in January this year. Prison guards shot and killed [six] local residents; a prisoner who helped a prison guard fish his firearm out of the water during a hunting trip drowned to his death; and also several instances of prisoners being beaten to death by the guards. Between 2008 and 2014, at least eight prisoners and one prison guard attempted suicide in Nehe Prison.
(76.) See Rosie Perper, Xi Jingping has locked up so many of China's elite the state is running out of prison spaces for them, Bus. INSIDER (Feb. 15, 2018, 11:44 PM), https://www.businessinsider.com/chinas-jails-full-after-xi-jinping-corruption-gralt-2018-2 (explaining reasoning behind overcrowding in Chinese prisons in 2018). The Qincheng Prison in Beijing has become the housing jail for many leading Chinese politicians, known as "tigers." Id. The prison is now referred to as the "tiger's cage." Id. "This number has soared since Xi's anti-corruption probe began, which has seen over 1 million officials punished." Id. Shortly after taking office, Xi began to crackdown on corruption. Id. "Xi has justified his tough measures, saying that upper-tier corruption could trickle down and weaken the party's grip on power." Id. During Chinese celebrations in the past, inmates were allowed contact family visits that also included dinner. Id. Because of the overcrowding in 2018, families were unable to enjoy the family dinners because of the at-capacity status causing problems. Id.
(77.) See Dui Hua Found., China: Women Prisoner Numbers Rise 10 Times Faster than Men, DUI HUA: HUM. RTS. J. (June 23, 2015), https://www.duihuahrjournal.org/2015/06/china-women-prisoner-numbers-rise-10.html (comparing women incarceration rates in China to United States rates). Between the years 2003 and 2014, women incarcerated in Chinese prisons have seen an increase of 46%, which is a rate ten times greater than the men imprisoned. Id. "By comparison, the number of women in US (sic) prisons grew 15[%] over the period, about one and a half times faster than the growth for men." Id. Because of the overcrowding issue, China has built six women's prisons since 2003. Id. Even though more prisons were built for women, the problem with overcrowding is still at issue. Id.
(78.) See Cornell Center on the Death Penalty Worldwide, CORNELL L. SCH., https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=China (last updated Apr. 10, 2014) (listing execution rates per year). From 2007 to 2017, executions in China ranged from approximately 6,500 in 2007 and 2,400 in 2017. Id. Because of the death penalty still enacted in China, prison overcrowded rates are lower than those countries with abolished death penalties. Id. The United States has great crime statistics than China in each of the following categories: "(1) crimes increasing in the past three years, (2) burglaries, (3) drug/opiates use, (4) fear of violent crime/violate hate crime, (5) robberies, (6) violent crime/gun crime, (7) violent crime/international homicide rate, (8) violent crime/murder rate per million people, (9) assaults, (10) auto theft, (11) assault and armed robbery, (12) murders, (13) vandalism and theft, (14) drug offences, (15) illegal drugs, and (16) serious assaults." Id. Although execution rates for 2016 and 2017 remain confidential, it is reported that in 2013, 2014, and 2015, approximately 2,400 prisoners were executed as a result of the death penalty. Id.
(79.) See Tang Jingling, A Prisoner's Human Rights Report, CHINA CHANGE (Aug. 28, 2016), https://chinachange.org/2016/08/29/a-prisoners-human-rights-report/ (criticizing Chinese prisons for their inhumane treatment of prisoners). For months, and even years, prisoners are locked in small confined "spaces with no [natural] sunlight or fresh air." Id. These types of conditions are contributing to the increasing deaths within prisons. Id. There are times when twenty to thirty prisoners are "in a space of [twenty to thirty] m[eters]." Id. At the Baiyun District Detention Center, inmates are "forced to sleep lying packed together." Id. Inmates sleep so close together that "[i]ts common to be awoken from a deep sleep with a kick in the face" by an inmate sleeping close by. Id.
(80.) See CHEN, supra note 3, at 329-30 (laying out China's national standard). Article 254 of China's criminal procedure determines three qualifications for inmates to be released from prison after an inmate receives a fixed-term, even if the fixed-term includes life in prison. Id. at 329. One of the three qualifications for early release is that seriously ill criminals request "to be released on parole for medical treatment." Id. In order for an inmate to receive medical parole, the inmate must be seriously ill and must receive treatment. Id. at 330. Before inmates are granted medical parole, inmates must be diagnosed by a "hospital designated by the people's government at provincial level." Id. A proposition must be "in writing by the prison or detention" center in which the inmate is being held, and must be "approved by the prison administration organ at provincial level or above, or by the public security organ at the level of city-with-districts or above." Id. According to Article 255, when a written proposal is submitted, a copy must also be submitted to the people's procuratorate. Id. The people's procuratorate is given the opportunity to respond with an opinion on whether the inmate should be granted medical parole or should serve the remainder of their sentence in prison. Id. The organ that decides the opinion of "execution of a sentence outside of prison" must "send a copy of its decision to the people's procuratorate." Id. The people's procuratorate has the opportunity to appeal the decision if approved by the organ "within one month from the date of the" receiving the decision. Id. China also has three standards in which medical parole may be revoked:
(1) it is found that the conditions for temporary execution of a sentence outside prison are not met;
(2) there is serious violation of the provisions on the supervision and administration of the temporary execution of a sentence outside the prison;
(3) when the condition for temporary execution of a sentence outside prison no longer exists, the term of the criminal's sentence has not been completed.
(81.) See Systemic Sickness, supra note 41 (discussing operation of China's medical parole system). Although medical parole isn't as common as sentence reduction, it is used "as often as regular parole." Id. China has determined that an inmate with a serious, chronic illness may be released from prison after serving at least one-third of their fixed sentence term. Id. Inmates given a life sentence may also be granted medical parole after serving seven years of their sentence. Id. "Unlike regular parole, Chinese courts do not intervene in matters of medical parole, and parolees are not required to report to the police." Id. Like many other countries, China tries to avoid having prisoners die while serving a fixed sentence, and therefore are released to die at home or a medical facility. Id.
(82.) See MASCHI ET AL., supra note 1, at 9-16 (discussing different guidelines among states). Although there are broad guidelines that states follow, each state decides medical parole at its discretion. Id. at 10. While some states are specific about the specific qualifications for medical parole, many states are extremely vague. Id. Thirty-six states mention terminal illness for consideration when determining medical parole. Id. Terminal illness calculations range from as low as thirty days in Kansas, to eighteen months federally, and other states do not make any time determination. Id. at 11. Only seventeen states make mental health a factor when determining early release. Id. at 10. Only thirteen states have regulations as age for a determining factor for early release. Id. at 12-13. Only eleven states have clear rules governing physician documentation, which physicians should be reviewed, and what factors must be documented in a medical letter. Id. at 14. Personal and criminal justice history are also unestablished, considering many states have excluded first or second-degree murder convicted inmates, as well as offenses of sexual nature, from receiving medical parole. Id. at 15. Victims and their families are notified on a case by case basis, which tends to favor not notifying victims regarding medical parole of an inmate, whereas if the release is regular parole, they are notified when the inmate returns to the community. Id. at 16.
(83.) See MASCHI ET AL., supra note 1, at 10 (requiring specific guidelines for each inmate seeking compassionate release). First, age should be taken into consideration, but it should not be determinate. Id. at 13. Age should be viewed to analyze whether a person is able to care for oneself, or medical attention is needed. Id. Second, an inmate's physical and mental health should be taken into consideration when discussing early release. Id. at 14. Physician documentation should be required and each inmate should be given a physical and mental examination before release. Id. Third, post release support should be taken into consideration. Id. at 15. A decision must be made if granted compassionate release whether an inmate is to reside with family members, a hospital, or in hospice. Id. at 15. Fourth, an inmate's criminal history and prison behavior should be taken into consideration when reviewing a compassionate release application. Id. Dangerousness and seriousness of the crime should be valued heavily when making a decision. Id.
(84.) See Mitchelle & Williams, supra note 53 (advocating for human dignity). Each person is entitled to human dignity, regardless of the situation. Id. Prisons may not offer the proper care to take care of the terminally ill prisoners. Id. When this scenario occurs, compassionate release offers to shift the patient's care to a more appropriate environment, which could be outside of the prison walls. Id. Physicians should be allowed to advocate for terminally ill patients and have their opinions considered when a prisoner is being considered for medical parole. Id. Physicians play a very important role when determining medical release and their opinion should be carefully considered to protect a prisoner's human dignity. Id.
(85.) See Williams et al., supra note 48 (discussing health care costs within prisons). "Between 1982 and 2006, United States state and federal prison populations grew 271%, prisoners fifty-five, years or older increased 418%, and spending increased 660%." Id. There are approximately 79,100 prisoners over age fifty-five, and the cost of keeping them in prison is three times the amount to house younger prisoners, specifically because of higher health care costs. Id. Although there is a concern that releasing ill or elderly inmates would just shift the expenses to Medicare or Medicaid, the prison costs reduce other areas within the prison such as hospital security, medical transportation, construction for disability-accessibility, and medical housing. Id. For example, in California, the average annual costs for healthcare for twenty-one terminally ill prisoners exceeds USD1.97 million per prisoner. Id. Comparatively, the costs of housing a terminally ill individual in a nursing home care in California is approximately USD73,000 per person. Id.
(86.) See Fellner, supra note 53 (discussing federal prison population). "The Department of Justice has recently acknowledged that the ever-expanding federal prison population and the budget of almost [USD]6.2 billion that BOP uses to keep federal prisoners locked up are unsustainable." Id. Increasing the number of compassionate release prisoners would free the BOP from putting costs towards confining prisoners and contributing to medical costs. Id. "The per capita cost of caring for a prisoner in one of the BOP's medical centers was [USD]40,760 in [fiscal year] 2010, compared to an overall per capita cost of [USD]25,627." Id.
(87.) See Metla, supra note 51 (discussing caring for ill and aging inmates). Because of their status in prison, inmates age faster than if they were out in society. Id. Studies suggest:
Their physiological age is seven to ten years older than their chronological age. That means that if an inmate is [fifty-five] years old, he may have the medical needs of a [sixty-five]-year-old person on the outside. The reasons for this phenomenon are lack of access to health services prior to incarceration, poor diet and exercise habits, and drugs and alcohol abuse. At the same time, stress, lack of a support system, and depression while in prison add to the odds of faster aging.
Id. No matter the circumstances, prisons must house and provide adequate medical care and maintain training staff to care for ill or aging inmates. Id. Due to the lack of money available to prisons, only twenty states have special housing for ill and aging prisoners. Id. Instead of being prisons, many have become nursing homes with bars. Id.
(88.) See Trounstine, supra note 12 (criticizing Massachusetts for lack of compassionate release system). Currently, Massachusetts is working on implementing a process for inmates to seek medical parole. Id. The main reason prisoners seek medical parole is to live the last of their lives at home and receive proper medical treatment. Id. The only way to receive early release from a Massachusetts prison is to apply for a pardon or commutation, a way of getting some or all of a sentence remitted, only in "exceptional circumstances." Id. "Since [Governor] Deval Patrick took office, at least 280 pardon and 220 commutation petitions have been filed in Massachusetts." Id. Of those applications, only one petition got to Governor Deval Patrick, but it was later denied. Id. DOCs throughout the country are all concerned with the costs of creating a better medical release process. Id. According to the DOC, housing a prisoner in Massachusetts costs USD46.000 per year. Id. Nationally, according to the American Civil Liberties Union, "it costs more than [USD]68,000 to house a prisoner who is sick and dying, and that's a conservative figure for Massachusetts, considering our costs are far above the national average of [USD]34,000 per prisoner." Id "The [American Civil Liberties Union] estimates that if Massachusetts does not create a system of medical release by 2030, "over one-third of all prisoners in the United States will be over fifty-five years old." Id.
(89.) See Murphy, supra note 4 (criticizing Massachusetts for healthcare spending). "A news report on state prison health care spending published by the Pew Charitable Trusts and the MacArthur Foundation showed that between 2007 and 2011, per inmate spending on health care in Massachusetts grew from [USD]7,527 to [USD]8,427 as the daily prison population climbed from 10,837 to 11,315." Id The main contributing factors to the health care spending is elderly inmates and inmates with diseases. Id Hepatitis-C and mental illness are among the top reasons for rising health care costs. Id. Paroling elderly and terminally ill inmates can save money by cutting guarding and transportation costs. Id.
(90.) See Valencia, supra note 57 (criticizing state lawmakers' support for federal compassionate release). Although state lawmakers support DiMasi's release, Massachusetts had yet to implement a compassionate release program for terminally ill inmates at this time. Id Compassionate release has been at the forefront in the state Legislature for five years, and finally had its breakthrough in 2018. Id.
(91.) See Valencia, supra note 57 (critiquing Massachusetts cost of prison healthcare). "Massachusetts spends one-million dollars a year in health care for inmates, according to Department of Corrections' figures." Id James Flowers is an example of an inmate who would likely be granted compassionate release if Massachusetts had a system. Id. James Flowers has spent fifty years in prison for murdering a liquor store clerk. Id. Flowers now suffers from end-stage dementia and spends most of his time bed-ridden and mute. Id.
(92.) See H.B. 2173, supra note 26 (critiquing bill not being passed in 2011).
(93.) See 2018 Mass. Acts ch. 69, supra note 70 (describing plans to implement compassionate release program in Massachusetts). In April 2018, Massachusetts finally enacted a law for a compassionate release program. Id Although enacted, Massachusetts must implement the law in order for prisoners to receive the chance to get out of prison. Id. This enactment must be strictly followed and not fall into the dark like it has in many other states. Id.
(94.) See 2018 Mass. Acts eh. 69, supra note 70 (defining definitions of medical parole). "'Terminal illness,' a condition that appears incurable, as determined by a licensed physician, that will likely cause the death of the prisoner in not more than 18 months and that is so debilitating that the prisoner does not pose a public safety risk." Id. This statute also includes "permanent incapacitation" as a form a subsection of medical parole. Id. "Permanent incapacitation, a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk." Id.
(95.) See 2018 Mass. Acts ch. 69, supra note 70 (lacking implementation of elderly early release). S.2371 only focuses on prisoners with terminal illnesses and fails to consider elderly inmates, which is an area that should be heavily focused on. Id. Elderly prisoners are sometimes looked at as one unit with terminally ill prisoners, but each should be looked at separately. Id. See Lannan, supra note 33 (criticizing portion of bill). According to Governor Charlie Baker, "Those serving life without parole for first degree murder, sexually dangerous persons and sex offenders who have yet to be finally classified will be categorically ineligible." Id.
(96.) See MASCHI ET AL., supra note 1, at 16 (criticizing states for not having compassionate release). Forty-six of the fifty states, plus Washington, D.C., and a federal law, are found to have some form of compassionate release for inmates. Id.
(97.) See Trounstine, supra note 12 (asserting need for compassionate release in Massachusetts). The only hope for an ill prisoner is to apply for a clemency or a commutation. Id. Because of the arduous process, inmates do not partake in the process. Id.
(98.) See Fellner, supra note 53 (pushing for enforcement of compassionate release). Without this type of program, keeping a terminally inmate behind bars can lead to cruel and inhumane punishment. Id.
(99.) See supra Part II.B (outlining China's current system). Although China's parole program is similar to the United States' program, there are still many differences. Id. The biggest difference being reform through labor, which China uses to rehabilitate their inmates. Id. Although the United States does not have this implemented, there are many ways it works on rehabilitating inmates. Id.
(100.) See supra Part II.A (setting forth benefits of compassionate release in Massachusetts). Compassionate release can directly impact prison overcrowding across the state. Id. Money would also be positively affected because the care of these inmates will not be on the prison itself. Id.
(101.) See supra Part II.A (summarizing best option for Massachusetts inmates). The best option for Massachusetts is to look at other states, as well as federal, parole programs and enforce their new program that will be beneficial for the prisoner, as well as the prison. Id.
(102.) See Metla, supra note 51 (criticizing policymakers for lack of compassionate release). Due to the number of aging inmates, the prison population will continue to grow. Id. Prisons are now looking more and more like nursing homes instead of prisons. Id.
(103.) See MASCHI ET AL., supra note 1, at 15 (enforcing strict guidelines for Massachusetts new program). Massachusetts needs to implement the new compassionate release program and take the initiative to help terminally ill or elderly inmates die peacefully outside the prison walls, without letting this program fail. Id.
[Please note: Some non-Latin characters were omitted from this article]
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|Publication:||Suffolk Transnational Law Review|
|Date:||Jan 1, 2019|
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