Abstract
Early release of seriously ill and elderly prisoners is possible in several countries, but only few prisoners gain such exemption. We identified hurdles to the implementation of early release laws in Europe by analyzing legal requirements for such release and with 40 stakeholder qualitative interviews. Provisions are based on prisoners’ health status and the ability to care for them in prison. Interviews revealed three barriers: practical hurdles, penological goals, and multiple interests. Finally, early release is obstructed because three justifications are often confounded: compassion, the principle of equivalence, and practical concerns, such as costs and overcrowding.
Introduction
Legal regulations for the early release of seriously ill and elderly inmates 1 exist in a number of countries. Such provisions, often termed compassionate release, are based on a humanitarian concern for the dying (Beck, 1999) and high financial costs associated with end-of-life care (Maschi, Viola, & Sun, 2013). Interests such as upholding penological claims often work against the release of seriously ill and elderly prisoners on compassionate grounds (Reimeringer & Gautier, 2012; Williams, Sudore, Greifinger, & Morrison, 2011).
Early release for these prisoners is generally based on medical criteria, such as a terminal illness, debilitating conditions, or the impossibility of providing adequate care in prison. Programs differ according to national- and state-level jurisdictions. In some jurisdictions, such release is not limited to medical reasons and may occur in light of a prisoner’s old age, coupled with time spent in prison, severity of the crime committed (Reimeringer & Gautier, 2012), or “other extraordinary and compelling reasons” (Berry, 2009, p. 850). Hinging on these criteria, different terminologies are used, including medical parole or geriatric release to indicate early release of these prisoners, but refer to slightly different practices. In this article, we will use early release to encompass all these different programs: compassionate release, medical parole, and geriatric release.
The low number of prisoners receiving release based on such provisions indicates that seriously ill and elderly prisoners continue to die in prisons. This raises concerns because end-of-life care in prison is yet to be established in most countries and difficult to implement by nature of the environment (Wright & Bronstein, 2007). In the United States, where there is a longer tradition of providing end-of-life care in prison, such care is still not widely available (Williams et al., 2011). As such, prisoners neither receive adequate end-of-life care inside prison nor can they access these medical services in the community due to lack of functioning release provisions in place. However, prisoners should receive end-of-life care equivalent to the standard available in the community (Council of Europe [Committee of Ministers], 1998; Lines, 2006), even if the full application of international human rights law is sometimes limited by other factors (Easton, 2013). For example, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) notes that detainees “who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age” require humanitarian assistance because the “continued detention of such persons in a prison environment can create an intolerable situation” (CPT, 1992, Section III, e.iv). Given the rising numbers of elderly prisoners, a trend, sometimes termed the “aging crisis” (Maschi et al., 2013, p. 543; Williams, Goodwin, Baillargeon, Ahalt, & Walter, 2012, p. 1150), the topic of care for dying and fragile elderly detainees needs to be urgently addressed.
In Europe, the number of elderly prisoners is also on the rise. For example, in England and Wales, prisoners aged 60 and older are the fastest growing age group in prison, between 2002 and 2011 it rose by 103% (Prison Reform Trust, 2013). Based on numbers provided by SPACE I Annual Penal Statistics, between 2007 and 2012, the number of prisoners aged 50 years and above has increased from 7,713 to 8,600 in France and during the same period, in Germany, the number has risen from 7,078 to 7,378 (Aebi & Delgrande, 2009, 2014). In Spain, the proportion of prisoners of 60 years and older has risen from 443 in 2000 to 1,740 in 2012 (Instituto Nacional de Estadística, 2014). The increasing older prisoner population also means that natural deaths in prison are likely to become more frequent (Glamser & Cabana, 2003).
Available studies on the release of seriously ill and elderly prisoners are mainly from the United States. The Human Rights Watch (2012) reported that of the 444 requests made for compassionate release by prisoners in the United States (representing preapproved requests by wardens and regional directors between 2000 and 2011), only 266 were approved. Considering the 6,629 deaths occurring in prison due to illness during a similar time period (2000-2012; U.S. Department of Justice, Bureau of Justice Statistics, 2014), this small number of prisoners receiving release begs the following question: What are the hurdles that make these releases practically difficult?
Obstacles that hinder early release at the end-of-life are (a) a lengthy and cumbersome process, (b) restrictive and unsound medical criteria, and (c) narrow interpretations of legislations (Beck, 1999; Reimeringer & Gautier, 2012; Williams et al., 2011). The application process for release varies and can impact the time it takes to receive the permission for release. Possibilities for undergoing this process include a request that can be made by the prisoner on his own behalf or by the treating physician, which can delay the process (e.g., if the prisoner is too sick or has difficulty filling out legal forms) or that those who are seriously ill should be considered automatically for early release, which would save time and ensure more widespread use (Beck, 1999). Finally, in cases where release is granted, the prison must address another critical issue, namely, where to transfer the prisoner (Adams, 1994; Groupe de travail Santé Justice, 2013).
In addition to the practical barriers, there are problems with the justifications for this practice that are antithetical to the goals of imprisonment. Policies for the release of seriously ill and elderly prisoners were developed on the premise that changes in health status of prisoners can impact the four justifications for imprisonment (Williams et al., 2011)—retribution, deterrence, incapacitation, and rehabilitation (Berry, 2009). Illness and old age can influence these justifications. For example, prisoners suffering from dementia may no longer be aware that they are being punished for a crime, thus, undermining retribution. Berry (2009) argues that the purposes of punishment, even in light of changes due to debilitating mental and physical health, are not sufficient justification for early release. Rather, other interests of the state have to outweigh “the penological benefit sacrificed by the corresponding sentence reduction” (Berry, 2009, p. 882). Such state interests are often financial ones (Berry, 2009). The costs for keeping seriously ill and elderly prisoners incarcerated are high (Williams et al., 2011), and it is estimated that 10% of the total direct U.S. prison costs of care are associated with serious/terminal illness and disabilities (Maschi et al., 2013). Finally, other interests could also be humanitarian considerations, such as compassion or dying with dignity. In spite of the often used terminology of “compassionate release,” such considerations are seldom mentioned explicitly.
Despite the aging prisoner population across Europe, so far, no studies have assessed the varying criteria for the release of seriously ill and elderly prisoners across countries or the barriers to implementation of related laws and regulations. Therefore, the goal of this article is to first identify and analyze relevant legislations in five European countries. Second, we present findings from qualitative interviews with 40 stakeholders from three European countries who described different hurdles to the implementation of early release laws and processes. Finally, we propose a solution for meaningful and functional legal provisions for the release of seriously ill and elderly inmates.
Method
Legal Analysis of Compassionate Release Provisions in Europe
For legal analysis, we first chose five western European countries with the highest prison population according to the World Prison Population List (Walmsley, 2013). These five countries included England and Wales, 2 Spain, France, and Germany. We additionally decided to include Switzerland in our analysis as the research team is conducting a larger study on aging prisoners. We searched for legal provisions relevant to the release of seriously ill and elderly prisoners for each country, such as compassionate release or medical parole. The analysis consisted of classifying the type of law or regulation and identifying the criteria necessary to obtain release. Where available, we listed the proportion of prisoners having received early release in those countries.
Stakeholder Interviews
As part of a larger study investigating the health care for elderly prisoners, interviews were conducted with stakeholders to seek opinions about the legal, prison, and health care systems that affect older prisoners. They were recruited via purposive and convenience sampling from three western European countries. Ethics committee approval was sought and obtained from all three countries.
Semistructured interviews were carried out with 40 experts who were categorized into three groups as presented in Table 1. Four researchers conducted the interviews in French, German, or English. The interview guide contained one relevant question about what minimal criteria are considered for early release of a prisoner at the end-of-life as well as a vignette on this topic. Interviews were on average 70-min long, and were either conducted face-to-face, via Skype, or telephone. The recorded interviews were transcribed verbatim, anonymized, and checked by independent assistants. All stakeholders had several years of experience working in the field. On average, they were 49.5 years old (32-69 years), and 13 of them were female. For more details, see Bretschneider and Elger (2014). In the results, stakeholders are coded by a number, country ID, and their category.
Stakeholder Categories by Countries.
Note. HCP = physicians, health care professionals, and researchers; NGO/IO/Omb = work for international organization, NGO, or NGO-like institution; PA = prison administration (directors, personnel responsible for probation or social reintegration) and policy makers.
Analysis
Interviews were coded using the qualitative analysis software MAXQDA 11. The interviews were first read followed by extraction of relevant interview passages into one document. This document was then coded thematically (Braun & Clarke, 2006), with thematic analysis performed independently by three research team members, V.H., T.W., and W.B., to check if similar themes were recorded by each. Agreement on themes and structure was reached through discussion among the three coders. Results were compared with those of an independent coder (B.E.). V.H. drafted the final coding scheme, and W.B. as well as T.W. checked it for consistency. Quotes were translated from French and German into English by bilinguals in the two languages and checked for errors.
Results
Legal Analysis in Europe
We found that the criteria for early release of seriously ill and elderly prisoners vary across the countries included in the analysis: England and Wales, Spain, France, Germany, and Switzerland (see Table 2 for details). Most notable is that only England and Wales mention compassion explicitly in their Prison Service Orders. Only these countries offer a provision permitting release rather than an interruption of the sentence. Spain and France have a provision with a predefined age as a criterion. All countries rely on health reasons mostly compounded by availability of care in prison. The numbers of prisoners who had applied and for which proportion had been granted release were often not available. This means that it is not clearly and regularly documented in any of the countries.
Legal Provisions for Early Release in Five European Countries.
Experts’ Perspective on Hurdles to the Release of Seriously Ill and Elderly Prisoners
Stakeholders commented on the process of release based on their involvement in those requests and/or general experience as well as their knowledge on the topic. From their responses, we identified three barriers to the provision of early release.
Practical and organizational hurdles
The practical and organizational hurdles evident from the interviews revolved around four issues: (a) the process of release for seriously ill and elderly prisoners being lengthy and complicated, (b) the difficulty of providing a definitive prognosis, (c) finding an institution when release is granted, and (d) improvement of available prison care.
Lengthy and complicated process
The overall process of release for seriously ill prisoners was described as arduous. Participant (27 C2, NGO/IO/Omb) stated, It’s really unlikely [that compassionate release is granted]. . . . It takes quite a long time to make the decision. And often somebody applies for compassionate release but may have died before the decision is made.
Additionally, a few participants pointed out that the procedure had become very complicated over the years because many people were involved in the decision-making process (such as prison administrators, medical doctors, lawyers, governors), and public pressure had increased.
Well, people [in the community] want to have these people [prisoners] locked up. This is regrettable, really, because previously there were more possibilities, but today, there isn’t . . . There are so many people who want to have a say that it has become difficult. And probably it will not become easier. (4 C1, HCP)
Difficulty of providing a definitive prognosis
While medical eligibility criteria require the presence of a terminal illness, this is often not sufficient as a prognosis as to when the death of the patient is likely to occur. Indeed, some stakeholders pointed to this problem that physicians face in giving a definitive prognosis: And the other thing is sometimes . . . doctors say, although we know this person is going to die, we can’t be specific about when they’re going to die. . . . So doctors sometimes say we can’t give a diagnosis that clear. So it’s very difficult, it’s a very difficult situation. (27 C2, NGO/IO/Omb)
The challenging condition of prisoners who do not have a terminal disease but a debilitating illness was also discussed. Considering an example of an older prisoner with dementia, a participant relayed his disagreement on how these decisions are made: [I would find it good] if somehow the authority could be side-stepped a bit and [we can] simply say, okay, this man or this woman has dementia or is old and sick and simply not accountable for what happened 30 years ago. But I think it needs a change in ideology in these expert commissions . . . I mean for this woman [with dementia] they re-evaluated her prison sentence [indeterminate sentence] . . . and said: ‘This has to be kept that way.’ Well, from a medical point of view, it’s utter nonsense. (6 C1, PA)
Problem of finding an institution after release
Stakeholders pointed out that even if compassionate release is granted, it may not happen, if there is no institution willing to accommodate the prisoner: “I think the issue that is the most difficult to resolve is: Where would these people go? It’s the question of who would be willing to accommodate them outside. If that is not taken care of, these people remain in prison” (37 C3, HCP). One participant (6 C1, PA) described the case of an ill inmate who was released early to his country of origin and the “logistical problems” such as “organizing who can pick him where and where does he even go, is there a pharmacy close by” because they needed “to get all these things sorted out.” Moreover, institutions in the community are often reluctant to accept to accommodate prisoners “because they have no obligation to do so” (18 C1, PA).
Improvement of care available in prison
Stakeholders agreed that prisoners should receive the same level of care as the general population. When care can be provided, release of seriously ill and elderly prisoners is no longer necessary and vice versa. Highlighting this situation a participant reported, “Everything that is necessary [in terms of health care] has to be guaranteed. If the structure of the prison cannot guarantee this, you have to interrupt the execution of the sentence” (17 C1, HCP). However, another participant stated the consequence, “[Today], we can treat and provide care for almost any illness within the system and this is why there are no releases anymore” (12 C1, BA).
Penological goals override
The justifications for imprisonment (deterrence, retribution, incapacitation, and rehabilitation) were used to argue against the practice of releasing seriously ill and elderly prisoners. Arguments in its support included claims that justifications must change considering the current condition of the prisoner (old age and illness) and humanitarian concepts such as dignity of the dying individual.
Retribution
For most participants, retribution was not a factor to oppose releasing prisoners at the end of life. Some even questioned the goal of punishment: “You release them [seriously ill and elderly prisoners] outside. But you cannot have somebody who is 65 years old, who is completely unable to walk, and tell me, you are punishing him, he’s already being punished” (9 C1, NGO/IO/Omb).
Few underscored that the crime committed should be an underlying factor for early release decisions. The seriousness of the crime determined these decisions: I think, it [release of seriously ill and elderly] depends very much on the type of offense [someone has committed]. One, who has murdered ten children, well he will die in prison or in a prison hospital. I don’t know anybody [like him] who would be released easily. (5 C1, PA)
The sentence as just desert for the crime committed is relevant in some legislations where there is the possibility to recall a prisoner to continue their sentence, in cases where they have gained temporary release. That is, if the prisoner’s condition improves, he/she could be recalled: “So when the person gets better, they are re-incarcerated into prison and they continue their sentence” (35 C3, HCP).
Incapacitation
Public safety was an overriding concern in the early release of seriously ill and elderly prisoners. The potential risk of prisoners reoffending when released was presented as substantial, making incapacitation and therefore continued detention necessary to protect society: I have to say it like this; even in a case like this [terminal illness] you probably cannot release a dangerous offender, because everyone can handle a gun, even shortly before dying. (10 C1, PA)
However, some stakeholders also pointed out that due to criteria such as dangerousness and crime those offenders most in need of legal provisions are not eligible. This situation was exemplified by participant (29 C2, NGO/IO/Omb) as follows: In reality the situation is that these individuals [sex offenders or other serious crimes] can hardly demonstrate that they are no risk and . . . that they could be released. The risk of public confidence [in the justice system] being damaged if people who have relatively recently been sentenced [because of a historic offense] if it’s a late and life sentence or [if they] have very long sentences, releasing them is a difficult judgment.
Humanity and dignity were used as supporting arguments to argue for the release of seriously ill and elderly prisoners. Stakeholder (28 C2, HCP) stated, What you see is that some prison administrators . . . really push to have their terminally ill offenders released. Because, you know, it’s to do with dignity and, you know, all of those kind of issues associated with coming to the end of your life whatever you’ve done, you know, you’re no longer a risk to society.
Another participant (38 C3, PA) pointed out that dignity and humanity were the basis of the legal provisions in his/her country, but this focus became diluted with the addition of practical and medical criteria: So [release for seriously ill and elderly prisoners] is actually underused because when it is accorded it is really so that the person dies 15 days later or when they are already hospitalized. So they just do it in a way that the person is no longer in custody and these deaths are not counted in the prison statistic anymore . . . At the outset we had a humanitarian law but the intention of these laws . . . is not respected and moreover they have narrowed it. . . . So they have redefined that law, these humanitarian criteria and have added criteria like non-adherence to rules and regulations and serious risk of re-offending.
Conflicting and multiple interests
Another important hurdle for the provision of release for seriously ill and elderly prisoners was difficulties in the decision-making process and that the decisions were made considering different interest groups. First, release decisions were made by an entity consisting of different professions with varying interests and opinions. This meant that the process was often complex. Some stakeholders described it as shifting the responsibility for the decision between the parties involved due to fear of a possible wrong decision and accountability of its negative outcomes.
That is the crazy thing. Medicine and law try to pass the buck. . . . It is not a medical problem in that sense, but in the end it will probably be a legal problem. And the term “incompatibility with detention” is not defined. Also here, it would be important to have clarity—a definition, a standard—would be essential. (8 C1, PA)
Highlighting accountability as a possible reason for this complicated process, another participant (20 C1, NGO/IO/Omb) described the possible consequence of such decisions: Because they [prisoners] are people who still have criminal capacity and if the judge says, well this is an 85-year-old elderly gentleman. And once he is outside, [if] he starts to sexually abuse children again, then the judge will have to suffer the consequences, especially the public will be very dissatisfied. So it is a very delicate subject.
Second, as evident in the quote above, the interests of different groups such as the public opinion are highly valued. Participants discussed interest groups in favor of and against the release of seriously ill and elderly prisoners such as the prison administration, the victim, the state, the public, and prisoners themselves. Participants reported that prison administration pushed for release because the death of an inmate in custody is not desired: End-of-life equals outside. So there, the prison administration helps us, because they absolutely don’t want any deaths in their statistics. Deaths in prison don’t look nice. (32 C3, HCP)
A few times, participants mentioned what releasing someone means to the victim. For example, one admitted, You see I’m kind of, I’m in two minds about this because you do have to think about the victims of the crime that [the prisoner] committed as well. (31 C2, HCP)
An interest group with the power to make decisions for and against early release for seriously ill and elderly prisoners was the authorities and the state. Participant (18 C1, PA) reported clearly that ill health is no reason for the state to give up its penalty claim if care can be provided in prison: That was the big discussion between the clinic director and us [the authority] and I said: “I don’t see why, if medical care can be provided [inside prison], why should we renounce to the state’s claim for punishment.” This is an ethical dispute between physicians and penal authorities. And there I said, “No, I cannot, I have no legal basis to release him early.”
In line with this comment, another participant highlighted that for some prisoners, the authorities insist that these prisoners are not released until they die: “Once we had a patient where the authorities firmly said that he would not get out until he dies” (6 C1, PA). Society, as a whole, has a strong influence on these decisions. However, participant (29 C2, NGO/IO/Omb) actually stated that society needs to make a conscious choice about death in prison: I also think that it’s something that society needs to confront as we have more and more old people [in prisons]. Whether society wishes prisons to become as they increasingly have to be, places of death, where people will die in custody and then manage something, I think, society has not actually debated but I think there is little evidence available that compassionate release is granted with any or regarded with any great sympathy certainly by politicians but also by the public as a whole.
Finally, stakeholders argued that sometimes prisoners themselves refuse to be released on two grounds: quality of end-of-life care is perceived to be better in prison and the lack of relations outside prison to accompany them at the end-of-life.
One final footnote is that longer sentence prisoners, institutionalized prisoners, prisoners who have no family, perhaps because of their offense and because of their past, may often ask to die in prison. So, it is not easy, it’s not an easy equation . . . . But there are a lot of other issues, moral, political, practical and humane where the individual says: well, I have nobody on the outside, please let me die inside. (29 C2, NGO/IO/Omb)
Discussion
In the interviews, we underlined the following obstacles for the release of seriously ill and elderly prisoners: practical and organizational hurdles, weighing penological versus humanitarian goals, and balancing of interests and responsibilities. These three concerns share a common feature, namely, an inherent tension stemming from conflicting justifications for early release of seriously ill and elderly prisoners. A similar tension is evident in the legal provisions. Based on our results, we will first describe this tension to underscore its centrality in obstructing the early release process. Second, we will propose a solution to resolve this conflict by developing a guideline for drafting and/or analyzing release provisions for seriously ill and elderly prisoners.
Obstructions in the Early Release Process: Tensions Between Justifications
Often, there is a confusion surrounding release on humanitarian grounds such as compassion and the principle of equivalence of care (Lines, 2006) both in the interviews and in the legal regulations. If compassion is the central element of a legal provision for early release of a seriously ill or elderly prisoner, it then should not be based on practical criteria like the availability of end-of-life care in prison. Provision of care should not depend on compassion. It is a duty in accordance with the principle of equivalence of care, which is the guiding principle in the health care for prisoners in Europe (Lines, 2006). Nonadherence to this principle and, by extension, nonfunctioning legal regulations for release without providing appropriate end-of-life care in prison can present serious human rights violations (CPT, 1992).
If the terminology “compassionate release” is taken in its literal sense, “compassion” emphasizes the need to acknowledge the suffering of a dying prisoner as “deprived of freedom” rather than “deprived of appropriate end-of-life care.” This was expressed by stakeholders who felt that the repressive, and often violent (Liebling & Arnold, 2012), prison environment does not provide the conditions for a death with dignity in spite of availability of end-of-life care and that dying in freedom is important. This is also often voiced by prisoners (Linder & Meyers, 2007) and in literature (Russell, 1993; World Health Organization [WHO], 2007). A problem arises when confounding compassion with the principle of equivalence. A legal regulation for release based on compassion is permanently applicable and independent from the provision of health care. However, release provisions built on the principle of equivalence are mandatory if end-of-life care is not provided in prison and place the availability and accessibility of health care at the center. Thus, they are only applicable as long as end-of-life care is not available in prison. This trend was mentioned by discussants stating, much as Beck (1999), that with improvements made in end-of-life care for prisoners, it is less likely that release for seriously ill and elderly prisoners is requested. Most legal regulations (see Table 2) are based on the criterion that release is granted for the prisoner to seek care not available in prison rather than explicitly stating any goals related to compassion. Only England and Wales have provisions, based on compassion but combine them with criteria relating to the principle of equivalence. New legal regulations should make a distinction between humanitarian and health care criteria for early release. Such a regulation should also mirror its terminology, that is, only those provisions based on true compassionate grounds should be called compassionate release.
The lack of clarity concerning these different justifications is reflected in the legal regulations but this impedes on the application. In the interviews, humanitarian grounds like compassion were overruled by penological goals but intermingled with positive duties like the principle of equivalence. Two penological goals took precedence over early release in the legal requirements as well as in the interviews: retribution and incapacitation. Retribution encompassed three considerations: the exclusion of certain crimes, the minimum time served, and the possibility of reincarceration. These three variables in early release decisions compromise the extensive application of release for seriously ill and elderly prisoners. As pointed out by one stakeholder, the exclusion of certain types of crime might exclude those who are most in need of the provision, because these are crimes that warrant particularly long or even indeterminate sentences. The minimum time served as criterion in U.S. legislations (Chiu, 2010) illustrates how retribution can trump humanitarian goals. Finally, the possibility of recall (Russell, 1993; Williams et al., 2011) has its basis in retribution, as prisoners should serve the maximum of their sentences. Additionally, it also has its grounding in incapacitation, as prisoners can be reincarcerated if they reoffend. This element is very prominent in the legal provisions as all but one referred only to an interruption of the sentence. Incapacitation to protect society from further crimes seems to overrule all other considerations in the interviews. However, it must be substantiated with regularly collected and updated statistical evidence on criminal offenses perpetrated by elderly and terminally ill prisoners after gaining release. There is a need for a decision on how much risk a society is willing to accept balancing it against humanitarian grounds such as compassion. This should ideally happen before drafting a legal provision. One participant actually pointed out how a humanitarian regulation can become obstructed by retrospectively adding criteria based on penological goals.
Early release decisions for seriously ill and elderly prisoners are dependent on two elements: medical eligibility and authorization by a legal entity (Beck, 1999; Williams et al., 2011). However, more than just medical and legal personnel are involved in the decision-making process, thereby adding to the overall complexity. Prison administration can play a decisive role and the concerns of the victims are sometimes given special weight (O’Meara, 2010). Evident from our results is the political dimension of the decision (Beck, 1999; Russell, 1993) related to concerns of authorities about bad press or to be perceived as being soft on crime (Human Rights Watch, 2012; Ornduff, 1996). One member illustrated this by describing the consequences of a decision that, retrospectively, turned out to be “wrong.” Protecting public interest is central to such decisions (Mancini & Mears, 2010; Payne, Gainey, Triplett, & Danner, 2004), and this interest is usually portrayed as very retributivist. Hence, public opinion and politics can be an obstacle for early release decisions (Chiu, 2010). Our participants also assumed that the public would be opposed to such release. The lack of information on this subject given the influence public opinion has should be further investigated, such as has been attempted by Boothby and Overduin (2007) who found that undergraduate students had negative attitudes toward compassionate release. Roberts (1992) found that the public has misconceptions about crime and the criminal justice system and generally knows little about it. Payne and colleagues (2004) reported that the public needs to be made aware of some decisive issues, such as the role of deterrence or their ability to influence the development of policy. As decisions on the release of seriously ill and elderly prisoners continue to be influenced by public opinion, a discussant alluded that the public has responsibility. It is important to place the discussion within the context of statistical risks to innocent victims that society accepts in general (e.g., deaths from traffic accidents) and put it in perspective with the consequences of a penal system which tries to guarantee zero risks. Indeed, the consequences of the greater call for public safety with longer and harsher sentences and increasing use of indeterminate or life-sentences (Prison Reform Trust, 2013) are not raised in public discourse.
If this involvement of different interests is not resolved when drafting legal requirements for the release of seriously ill and elderly prisoners, it is likely that the decision-making process will continue to remain obstructed. Therefore, the general acceptability of such a law as well as questions about responsibility and accountability must be resolved at the outset. When drafting a provision—including the definition of medical and legal criteria—for such release, the different professions concerned—lawyers, doctors, social workers, and prison directors—need to be involved in its design. For example, clear medical criteria, such as which diseases to include or the problems with prognosis, could be clarified by physicians. Otherwise, they will continue to exclude those most in need of it, such as prisoners with indeterminate security measures or those considered dangerous and remain vague on decisive criteria, such as the diagnosis and prognosis.
Clarification of Release Provisions for Seriously Ill and Elderly Prisoners
Based on our findings, we propose a guideline to clarify and/or direct the drafting of legal regulations for seriously ill and elderly prisoners. This guideline contains two levels of decision-making. First, at the societal level, the grounds on which early release for seriously ill and elderly prisoners will be based upon must be resolved. Two justifications can be identified in our results: compassion and the principle of equivalence. A third justification is found in literature, namely practical reasons such as costs, which in the United States has been the impetus for many release legislations, together with finding possible solutions to reduce overcrowding (Chiu, 2010; O’Meara, 2010; Ornduff, 1996). Elderly prisoners suffer from more diseases than younger prisoners and use health care services more often (Lindquist & Lindquist, 1999). End-of-life care is known to cause significant costs (Emanuel & Emanuel, 1994). The wish to reduce the strain on prison budgets is therefore a key factor.
It is important to distinguish these three justifications and to be aware of the fact that they will have different implications concerning their introduction and application. A legal regulation based on compassion will overwhelmingly take precedence over penological goals and thus will be least restrictive. It is also the only reason whose application is permanently valid as it is not based on criteria in the process of change. However, the introduction of such a regulation is optional because they are exclusively based on humanitarian grounds and no other obligations toward prisoners. Without a doubt, compassion needs the greatest commitment if translated into law and also requires a broad support from the society. If legal regulations are to be based on the principle of equivalence of care, this means assurance that seriously ill and elderly prisoners will have access to care that is not available in prison, such as social or end-of-life care, like every other person who is not incarcerated. If legal regulations are based solely on the principle of equivalence, early release of seriously ill and elderly prisoners must only be ensured when the necessary care is not available within prisons. Thus, its introduction is mandatory if the principle of equivalence is respected while its application can be transitory, that is, when prisons have the means to provide such care, early release regulation will have no utility. The same is true for legal regulations based on practical issues, such as costs and overcrowding. The difference is that implementations of this kind of legal regulations are not mandatory when other solutions are available to address these issues.
Second, if a decision has been taken to translate one or more of these justifications into law, several different regulations are a possibility, which can address the practical problems that we identified. Comparing our findings to the literature, mostly from the United States, practical problems concerning the release of seriously ill and elderly prisoners seem to be similar. The length and complexity of the process of applying for and gaining early release has been criticized by our study participants, as well as other scholars (Beck, 1999; Chiu, 2010; Williams et al., 2011). Possible solutions have been proposed to change the process like forgoing second opinions of physicians for instance in France, allowing any person to apply for early release for seriously ill and elderly prisoner, or simplifying the entire procedure (Chiu, 2010; Reimeringer & Gautier, 2012; Russell, 1993). Difficulties associated with providing a definitive prognosis and the problems of prisoners with slow progressing debilitating diseases mentioned by stakeholders have also been discussed in the literature (Williams et al., 2011). Estimates of the time to live should not enter into the decision-making process as such predictions are extremely difficult to establish (Williams et al., 2011) and physicians might be held accountable if prisoners live longer than predicted. The problem of where to release a prisoner has been stressed by participants. Certainly, if no concrete plans after release are in place, the prisoner remains incarcerated. For elderly long-term prisoners, the difficulty is often that they may no longer have family anymore (Ginn, 2012). This means that institutions such as hospices or nursing homes must be willing to accept them. To materialize such possibilities, stronger relations should be built between prisons and outside institutions. Additionally, lack of obligation on the part of outside institutions to take on prisoners makes placement extremely difficult. One could think of creating financial incentives for these institutions or other inducements such as increased staffing and/or staff training. These issues should also be addressed in the legislation in order for the regulation to be both meaningful and practical.
Finally, for those prisoners who consider prison as a home (Ginn, 2012), for whom prison staff is the closest to a family, and who do not wish for an early release, the situation is more complicated, as highlighted by a study participant. Those prisoners might find that to die in a familiar environment as dignified. Finding a solution for these persons will depend on our understanding of compassion and test the flexibility of legal regulations based on that concept.
Limitations
It was not possible to be exhaustive in the legal analysis. We only mapped those legal provisions in a given country that either explicitly mention age or health status as criteria for release or where it was documented that they had been used for such reasons. As a qualitative study, our findings are not generalizable and give an insight into subjective opinions of the participants. This means that stakeholders from other countries could have other point of views. Social desirability could have played a role in the answers as well. Participants were working for different institutions or organizations, which is why their responses could have been biased by their policies rather than reflecting their personal opinions.
Conclusion
We set out to describe the status quo of early release legislations for seriously ill and elderly prisoners in five European countries and to identify the barriers for the use of such provisions by drawing on stakeholder interviews from three European countries. We conclude that legal provisions for the release of seriously ill and elderly prisoners should focus on only one justification at a time, either compassion or the principle of equivalence or practical reasons such as costs and overcrowding. Each justification has a special characteristic which needs to be reflected in the legal regulation. The introduction of a legal provision based on compassion is optional but once instated, it is permanently applicable. In a different vein, those based on the principle of equivalence, although mandatory in their introduction, are only transitory in their application, and those based on practical solutions are both optional in their introduction and transitory in their application. Practical hurdles associated with the early release of seriously ill and elderly prisoners need to be addressed in drafting such regulations and should involve all relevant stakeholders. Finally, it has to be stressed that legal regulations based on the principle of equivalence can amount to serious human rights violations if they do not function correctly and at the same time end-of-life care is not provided in prison. Using a concept such as compassion concerning seriously ill and elderly prisoners will require a solid understanding of its limits and implications to be fully applicable in law.
Footnotes
Acknowledgements
We thank those prisons granting us access and the prisoners who agreed to talk to us. We are indebted to our assistants for transcribing the data. For the support of the project, we acknowledge C. Bula, B. Gravier, N. Biller-Andorno, M. Aebi, A. Holly, J. Page, A. Stuckelberger, R. Kressig, J. Sommer, and C. Ritter. Finally for the help with this article, we thank B. Williams.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The study was funded by the Swiss National Science Foundation Grant No. CR1311_135035.