MEDICAL AND GERIATRIC SUSPENSION OF SENTENCE

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1 The District of Columbia provides compassionate release to prisoners who have serious medical conditions or are elderly through (1) Medical and Geriatric Suspension of Sentence 1 and (2) Medical and Geriatric Parole. 2 The applicable type of release depends on when the prisoner committed the crime for which he or she is serving a sentence: Eligible prisoners who committed their offense on or after Aug. 5, 2000, may be considered for Medical and Geriatric Suspension of Sentence. 3 Eligible prisoners who committed their offense before Aug. 5, 2000 (sometimes referred to as old-law prisoners) may be considered for Medical and Geriatric Parole. 4 MEDICAL AND GERIATRIC SUSPENSION OF SENTENCE I. ELIGIBILITY Medical Condition/Age To be considered for Medical or Geriatric Suspension of Sentence, prisoners must be serving a sentence for crimes committed on or after Aug. 5, 2000, 5 and must be: Permanently and irreversibly incapacitated due to a medical condition that was not known to the court at the time of sentencing; 6 Terminally ill, having a medical condition that was not known to the court at the time of sentencing; 7 or Geriatric, being age 65 or older with a chronic infirmity, illness, or disease related to aging. 8 Exclusions Prisoners convicted of first-degree murder, or certain crimes committed when armed, are not eligible for Geriatric Suspension of Sentence. 9 Note that these exclusions do not apply to prisoners seeking a Medical Suspension of Sentence. II. APPLICATION/REFERRAL The Director of the Federal Bureau of Prisons must file a motion with the D.C. Superior Court on behalf of the prisoner asking that his or her sentence be suspended due to incapacitation, terminal illness, or age. 10 If the court receives a request for Medical or Geriatric Suspension of Sentence directly from a prisoner or a prisoner s representative, it may refer it to the Federal Bureau of Prisons for (1) a motion or (2) a statement of the reasons the Bureau will not be filing a motion. 11

2 III. DOCUMENTATION AND ASSESSMENT A copy of the motion is served on the prisoner s attorney and the prosecutor. 12 No additional information on documentation that is needed for the motion is provided in the relevant regulations. IV. DECISION-MAKING PROCESS Decision Maker The Superior Court of the District of Columbia makes all decisions regarding Medical and Geriatric Suspension of Sentences. Note that the court must give the prosecutor and the prisoner s counsel notice and an opportunity to be heard regarding the motion. 13 Time Frames The court is directed to act expeditiously on any motion submitted by the Bureau of Prisons for a Medical and Geriatric Suspension of Sentence. 14 Decision Factors The Court will determine whether the prisoner s release under supervision is compatible with public safety. 15 V. POST-DECISION Supervision If the court grants a Medical or Geriatric Suspension of Sentence, it will impose a period of probation/supervision equal to the suspended period of incarceration. 16 Supervision is provided by the Court Services and Offender Supervision Agency (CSOSA), a federal, executive branch agency that coordinates with the D.C. Superior Court and the U.S. Parole Commission. 17 In addition to general probation conditions, the Court may order special conditions, including that the former prisoner cooperate in seeking and accepting medical, psychological, or psychiatric treatment. 18 VI. REPORTING/STATISTICS There is no publicly available information providing the number of D.C. prisoners who have been granted a Medical and Geriatric Suspension of Sentence by the Superior Court of the District of Columbia. 2

3 MEDICAL AND GERIATRIC PAROLE ( OLD-LAW PRISONERS ONLY) I. ELIGIBILITY Medical Condition/Age To be eligible for Medical and Geriatric Parole, a prisoner must be serving a sentence for a crime committed before Aug. 5, 2000 (an old-law prisoner) and meet one of the following criteria: Permanently and irreversibly incapacitated due to a physical or medical condition that is not terminal and that did not exist at the time at the time he or she was sentenced; 19 or Terminally ill, due to an incurable illness or disease that did not exist at the time of sentencing, with the prisoner being within six months of death; 20 or Geriatric, defined as age 65 or older with a chronic infirmity, illness, or disease related to aging that did not exist at the time of sentencing. 21 Exclusions According to the Code of Federal Regulations, prisoners convicted of firstdegree murder, or sentenced for committing certain crimes when armed, are not eligible for Medical or Geriatric Parole. 22 II. APPLICATION/REFERRAL A prisoner, or prisoner s representative, 23 may submit an application for Medical or Geriatric Parole to the case management staff at the institution in which the prisoner is housed. 24 III. DOCUMENTATION AND ASSESSMENT The institution is responsible for submitting the application to the U.S. Parole Commission (Commission), along with supporting documentation that the prisoner is terminally ill or irreversibly incapacitated by a physical or medical condition that is not terminal. 25 Medical Parole Applications Within 15 days of receiving an application for Medical Parole from a prisoner or a prisoner s representative, the institution s case management staff must forward the application, a medical report, and any recommendations to the Commission. 26 If the prisoner has requested Medical Parole based on a terminal illness, the institution s medical staff must provide the Commission with a reasonable medical judgment that the prisoner is within six months of death due to an incurable illness or disease. 27 3

4 Geriatric Parole Applications Within 30 days of receiving an application for Geriatric Parole from a prisoner or a prisoner s representative, the institution s case management staff must forward the application, a medical report, and any recommendations to the Commission. 28 IV. DECISION-MAKING PROCESS Decision Maker The U.S. Parole Commission (Commission) has sole authority to grant Medical and Geriatric Parole and grant conditions of release for D.C. prisoners who are serving sentences for felony offenses committed prior to Aug. 5, Time Frames Medical Parole Cases The Commission must make a decision within 15 days of receiving a Medical Parole application and report. 30 Geriatric Parole Cases The Commission must make a decision within 30 days of receiving a Geriatric Parole application and report. 31 Hearings The general parole regulations include detailed requirements for hearings. 32 However, nothing in the regulations indicates that these apply to Medical and Geriatric Parole cases. Given the expedited time frames for Medical and Geriatric Parole decisions, the general parole hearing rules would not appear to apply. Victim Input The general parole rules state that the victim of a crime, or representative of the immediate family of a victim, has the right to testify and/or offer a written or recorded statement as to whether parole should be granted. 33 Although the Medical and Geriatric Parole rules do not state that this requirement applies, the Commission s website says that [v]ictims or victim s next-of-kin who are registered to receive notification will receive information regarding an application for medical parole. The victim has the opportunity to provide input to the Commission on this decision. 34 Decision Factors/Medical Parole Cases To find a prisoner eligible for Medical Parole, the Commission will consider the following factors: Seriousness of the crime Although the Commission can order release on Medical Parole at any time, whether or not a prisoner has completed his or her minimum sentence, 35 it will still consider the seriousness of the prisoner s crime in deciding whether or not release should be granted prior to completion of the minimum sentence. 36 Danger to self or others The Commission must find that the prisoner will not be a danger to self or others if released. 37 o For prisoners applying for Medical Parole on the basis of permanent and irreversible incapacitation, the Commission must find that he or she will not 4

5 be a danger to self or others because his or her medical condition renders him or her incapable of continued criminal activity. 38 Welfare of society The Commission will consider whether the prisoner s release is compatible with the welfare of society. 39 Decision Factors/Geriatric Parole Cases To find a prisoner eligible for Geriatric Parole, the Commission will consider the following factors: Risk To grant Geriatric Parole, the Commission must find that there is a low risk that the prisoner will commit new crimes. 40 Welfare of society The Commission will consider whether the prisoner s release is compatible with the welfare of society. 41 Seriousness of the crime Although the Commission can order release on Medical or Geriatric Parole at any time, whether or not a prisoner has completed his or her minimum sentence, 42 it will still consider the seriousness of the prisoner s crime in deciding whether or not release should be granted prior to completion of the minimum sentence. 43 Age; 44 A comprehensive health evaluation, including the severity of the prisoner s illness, disease, or infirmities; 45 Institutional behavior; 46 Level of risk for violence; 47 Criminal history; 48 and Appropriate alternatives to a traditional prison setting. 49 Conditions and Pre-Release Planning The general parole rules state that release plans must include evidence that the necessary aftercare will be available for parolees who are ill, or who have any other demonstrable problems for which special care is necessary, such as hospital facilities or other domiciliary care. 50 V. POST-DECISION Effect of Medical or Geriatric Parole Request on Nonmedical Parole Eligibility The Commission can consider Medical and Geriatric Parole in addition to any other parole for which a prisoner is eligible. 51 5

6 Denials and Appeal Rights On the basis of changed circumstances, a prisoner, his or her representative, or staff at the institution in which the prisoner is housed, can ask the Commission to reconsider its decision denying Medical or Geriatric Parole. 52 Supervision D.C. Code prisoners released on Medical and Geriatric Parole are supervised by the D.C. Court Services and Offender Supervision Agency (CSOSA). 53 Revocation/Termination The U.S. Parole Commission has authority to return parolees to prison upon an order of revocation. 54 However, there are no revocation grounds specific to Medical or Geriatric Parole. VI. REPORTING/STATISTICS There are no publicly available statistics provided by the Commission on the numbers of D.C. Code prisoners released on Medical and Geriatric Parole in the last five years. NOTES 1 D.C. Code See the National Capital Revitalization and Self-Government Improvement Act of 1997 (the Revitalization Act ), Title XI of Pub. L , 111 Stat. 712 (Aug. 5, 1997), amended by Pub. L , 111 Stat (Oct. 21, 1998); the Truth in Sentencing Amendment Act of 1998, effective Oct. 10, 1998, D.C. Law ; and D.C. Code through The Revitalization Act made significant changes to the criminal justice system in D.C., including the abolition of parole and creation of the Truth in Sentencing Commission. For a detailed history of the Revitalization Act and resulting changes in parole and sentencing, see the District of Columbia Sentencing Commission at See also the Sentencing Reform Amendment Act of 2000, D.C. Law , Act No , and D.C. Code D.C. Code C.F.R and Note that D.C. Code through also cover Medical and Geriatric Parole. However, the Code sections include provisions that are no longer current, e.g., referring to the D.C. Board of Parole even though the Board was abolished many years ago. Because the D.C. Code sections are outdated and appear to contradict the Code of Federal Regulations, this report cites only the relevant C.F.R. sections when discussing Medical and Geriatric Parole. 5 D.C. Code (a) (1). 6 Id. at (b) (1) (A). 7 Id. 8 Id. at (b) (1) (B). 9 D.C. Code D.C. Code (a) (1). 11 Id. at (b) (2). 12 Id. at (a) (1). 13 Id. at (b) (1). 14 Id. at (b) (2). 15 Id. at (b) (1) (A) and (B). 16 Id. at (a) (1). 17 See Court Services and Offender Supervision Agency website at and the CSOSA Community Supervision Services Operations Manual (CSOSA Manual), css/manual-toc.aspx. 18 CSOSA Manual, Chapter II, A.1.b.ii C.F.R (a) and 2.77 (g) (2) C.F.R (a) and 2.77 (b) (1) and (g)(2) C.F.R (a) and (g)(2). 6

7 22 28 C.F.R (g) (1) and 2.78 (g) (1), referencing crimes listed in D.C. Code , (b), and Note that 2.77 (g) (1), which says this exclusion applies to Medical Parole, lists D.C. Code as its source. However, D.C. Code states that prisoners are not eligible for Geriatric Parole if they have been convicted of first-degree murder or certain crimes committed while armed it does not include such an exclusion for prisoners applying for Medical Parole. Thus, the C.F.R. and D.C. Code conflict with each other. 23 The regulation does not define representative C.F.R (e) and 2.78 (d) C.F.R (a) and 2.78 (a) C.F.R (e). 27 Id. at (b) (1). 28 Id. at (e). 29 Section (a) and (b) of the Revitalization Act, supra note 1, transferred the authority of the Board of Parole to the U.S. Parole Commission and abolished the D.C. Board of Parole. See also D.C. Code and 28 C.F.R (b) and (d). Thus, the U.S. Parole Commission handles all parole-related matters for D.C. prisoners convicted of crimes before Aug. 5, Id. Note that the D.C. Code still erroneously includes references to the D.C. Board of Parole even though the Board was abolished and its functions were taken over by the U.S. Parole Commission C.F.R (e) C.F.R (d) C.F.R Id. at (c). 34 U.S. Parole Commission, Medical Parole, Sentencing, Incarceration & Parole Offenders webpage, C.F.R (a). 36 Id. at (d). 37 Id. at (b) (2) (i) and (c) (1) C.F.R (c) (1) C.F.R (b) (2) (ii) and (c) (2) C.F.R (b) (1). 41 Id. at (b) (2). 42 Id. at (a). 43 Id. at (c). 44 Id. at (e) (1). 45 Id. at (e) (2) and (e) (3). 46 Id. at (e) (4). 47 Id. at (e) (5). 48 Id. at (e) (6). 49 Id. at (e) (7) C.F.R (e) (3). Note that the original D.C. Medical and Geriatric Parole law at D.C. Code (a) stated that when a prisoner was granted Medical or Geriatric Parole federal public assistance applications (including Medicaid) had to be forwarded to, and coordinated with, the D.C. Department of Human Services. That provision does not exist in the Commission s rules C.F.R (a) and 2.78 (a) C.F.R (f) and 2.78 (f). 53 See U.S. Department of Justice/U.S. Parole Commission, Frequently Asked Questions, gov/uspc/frequently-asked-questions C.F.R (e). 7