The Fight For
COMPASSIONATE RELEASE
IN CALIFORNIA
by Judy Greenspan
"We are your sons and daughters, and as exasperated and
dispirited as you may become, remember: We do not want to die. We do not
want to die in here alone, and possibly under questionable circumstances.
Help us, love us, teach us, and pray for us, please."
-Charles W. Perry, prisoner, California Medical Facility, Vacaville, 12/5/92
Compassionate release is a critical bottom line demand for advocates for
prisoners with AIDS. It is also a winnable one-capable of rallying the broadest
support.
We have had some successes in California with individual campaigns for compassionate
release for prisoners with HIV/AIDS and other serious illnesses, and we
have also ushered two compassionate release bills (Assembly Bill 1408 and
AB 3093) through a hostile, anti-prisoner state legislature. However, ignoring
an impressive array of bipartisan support, Governor Wilson vetoed AB 1408
last year and AB 3093 this year.
California is not the only state with a functioning compassionate release
procedure. Many states have either a legislated mechanism or an internal
department of corrections procedure for the early release of dying prisoners.
Often, the process is labeled "medical parole," involving the
overview of the state parole board. Occasionally, the courts have the final
word. In some states, the individual cases go directly to the governor for
clemency action. Regardless of what procedure is in place, advocates and
activists have to fight for each individual early release. The prison system
is very reluctant to part with even the most seriously ill or disabled prisoner.
The worst case scenario is New York State, which has a newly amended medical
parole law and the largest population of prisoners with full-blown AIDS.
Medical parole in New York and other places is clearly a political issue
rather than a medical decision, so prisoners continue to die locked in their
cells rather than being released back to their families. This bipartisan
criminal inaction cannot be blamed solely on Republican Governor Pataki,
who is merely following in the footsteps of Democratic Governor Cuomo, who
was never renowned for his compassion for prisoners.
The California penal code has a special section (1170(d)) entitled "recall
of sentence," which outlines the procedure for the early release of
prisoners. This statute was originally put in place by prosecutors who wanted
to reward their informants by cutting their sentences. In the late 1980s,
legal advocates for prisoners with AIDS began using the recall-of-sentence
procedure to win compassionate release for prisoners with AIDS.
The procedure is long, cumbersome, and without realistic time limits. Prisoners
must first be designated terminally ill with six months to live by the prison
doctor. The prisoner's counselor and the warden must concur. Then California
Department of Corrections (CDC) Director James Gomez must also sign-off.
If the prisoner has been sentenced to a determinate sentence, then the application
must be approved by the sentencing judge. If the prisoner has been sentenced
to an indeterminate term (7 to life, 25 to life), the application must be
approved by the parole board then by the sentencing judge. The parole board
in California is as "stingy" as its New York counterpart, guaranteeing
that most indeterminately sentenced prisoners will die in prison.
Small Victories
Despite its cumbersome nature, this process has allowed the release of nearly
100 prisoners over the last five years. One man, Peter Hatzidakis, a first
time non-violent offender, lived only two weeks after his release. Joann
Walker, a well-known peer educator and fighter, lived for two months. Neither
prisoner ever recovered enough to enjoy their last days with their family.
On the other hand, Cynthia Greene recovered enough to leave the hospice
she had been released to and enjoy nearly seven months with her mother and
sister. Each case was treated differently by the sentencing judge as well
as the CDC. Each prisoner owed their release to public pressure and high-profile
media exposure, strategies that can succeed regardless of the actual early
release law.
The first component essential for a successful compassionate release campaign
is contact and discussion with prisoners on the inside. The Coalition to
Support Women Prisoners at Chowchilla was formed at the urging of Joann
Walker while she was in the Central California Women's Facility (the world's
largest women's prison). From the very beginning the Coalition was in close
touch with women inside. CCWF prisoners with HIV formulated the demands
for our first demonstration in January 1994. Over 100 activists from the
Bay Area travelled over three hours to demand "Women prisoners Deserve
the Right to Live!"
Prisoners inside the California Medical Facility (CMF), the men's prison
hospital in Vacaville, California, have begun contacting advocates about
men with AIDS needing early release. Ezra Davis, III, a jailhouse lawyer
at CMF with HIV, has even developed a compassionate release questionnaire
for use by peer educators and prisoner advocates behind the walls.
Public Pressure is Crucial
The second essential ingredient for an effective campaign is outside support.
Despite the current climate, the compassionate release issue has generated
considerable public sympathy. Over the past two years, we have put a coalition
of organizations in place to support both compassionate release bills. Several
organizations have played key roles in ensuring the legislation's passage.
AIDS service organizations and lobbying groups helped generate statewide
support with mass mailings and fax alerts. Prisoners' rights groups, as
well as family members of prisoners, have offered assistance. Compassionate
release for prisoners with AIDS and other terminal illnesses has been placed
on the agenda of many organizations and individuals for the first time.
The third element for a successful campaign is getting the support of state
legislators and other policy makers. Despite a hostile, anti-prisoner climate,
there is invariably one legislator who will come forward to sponsor a compassionate
release bill. Then everyone must rally the rest of the state legislature,
who respond more to fiscal arguments than humane ones. The statement that
won the most support in California was that compassionate release would
save taxpayers a great deal of money. During two years of legislative campaigning
we used the example of Albert Brown, a lifer, who was approved for compassionate
release by the CDC, then turned down by the Board of Prison Terms. He lay
in a vegetative state under armed guard, chained to his bed, for six months
before he died. The cost of his medical and custodial care (two armed guards
for 24 hours a day) was over $1 million. Mr. Brown had a family willing
to take care of him. His medical care would have been paid by the federal
Veterans Administration.
Surprisingly enough, most legislators with correctional backgrounds (former
sheriffs, jail administrators, etc.) are in full support of compassionate
release, regardless of their political background, therefore paving the
way for strong bipartisan support.
The overall campaign for compassionate release should be closely tied in
with ongoing cases of individual prisoners. Both campaigns are strengthened
by the public support and media exposure of the issues.
The fourth ingredient for a successful campaign is getting the media to
write about the issue. The media has responded enthusiastically to local
stories about prisoners needing compassionate release and have printed editorials
supporting compassionate release legislation and campaigns. In several cases,
the media helped orchestrate the prisoner's release by putting pressure
on the CDC and judge and later did follow-up stories with the prisoner at
home. Whether you win or lose the legislative battle, it's the overall campaign
that counts.
The battle for compassionate release for terminally ill prisoners will be
hard to win in the current political climate, but it is a campaign worth
fighting. It will help to put a human face on prisoners who are fighting
for their lives against AIDS and other diseases, medical neglect and a callous,
uncaring prison system. It will also help turn around the current demonization
and vilification of prisoners, who are predominately poor African-American,
Latino, and Native American, who are disproportionately represented in jails
and prisons throughout this country.
[For copies of sample bills, news articles, press releases, fact sheets
and other information about California's compassionate release campaign,
contact Judy Greenspan, Director, HIV/AIDS in Prison Project, 433 Jefferson
Street, Oakland, CA 94607, phone: (510) 834-5656, ext. 3150; fax no. (510)
451-6998; e.mail address: judyg@igc.or]
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