Thursday, October 28, 2021

Botswana’s medical parole laws must be expanded

Democratic states and societies can be measured by how they treat their prisoners. And part of that measure can be the degree of compassion shown towards dying prison inmates. The measure will resonate with the noble ideals of a compassionate and caring nation espoused in the country’s Vision 2016 blue print.

While some form of medical parole legislation is in place under the Prison Act which provides that a prisoner may be released out of custody where cogent reasons dictate such release, the Minister of Labour and Home Affairs would have to be informed by medical advice to order the release, for example, where the inmate has a few weeks left before their deaths. The prisoner will then be released to the care of family and friends (palliative care).

The president of Botswana, especially on Independence day (September 30) of very year releases scores of prisoners whom the state considers rehabilitated enough to rejoin society. The presidential pardon does not however extend to chronically and terminally ill inmates. If ever such compassionate releases are ever made, they are rarely made public.

Part of the reason for non-disclosure according to a defence lawyer who did not want to be named is that the law prohibits the disclosure of one’s illness, be they prisoner or not.  His other view is that most defence lawyers abandon clients upon conviction and thus literally leaving the prisoner without anybody responsible for motivating his or her release on medical parole.

The lawyer is imploring defence lawyers to keep constant contact with their imprisoned clients so as to motivate for their release on medical parole. Prison officials also rarely do much to motivate the minister to release the terminally ill.

The process involved in seeking medical parole is lengthy and the state is usually not amenable hence the lawyers consider it time consuming considering that most prisoners will  not be able to pay for services rendered despite the  tedious job the lawyer has to undertake to secure their release.

“I think there ought to be appropriate political will to address this fundamental human rights issue. Parliament must clearly legislate on how these chronically and terminally ill inmates should be assisted. I am afraid that most are dying in prison with their plight unattended. There is not a single study I am aware of in Botswana that has been undertaken to address this fundamental human rights issue. It is highly probable that scores of terminally ill prisoners die in our prisons without getting due attention,” said the lawyer.

According to Jack Beck who has done a study of medical parole in New York State prisons, only a few people are getting out on medical parole. He observed that in New York, the current administration is against parole generally and this spills over to medical parole. This negative influence is not confined to New York. California and other states are facing the same antagonism resulting in low numbers of medical parole releases.

A former public prosecutor and law lecturer at the University of Botswana Patrick Gunda is of the view that parliament ought to augment the Prisons Act so that more attention is directed towards the terminally and chronically ill prisoners.

He extends the blame to friends and family of the inmate who frequently neglect their responsibility of checking on their imprisoned relatives.

In Botswana, the issue is further compounded by the fact that the parole decision rests with the minister instead of the parole board. In other jurisdictions, it is not the responsibility of the minister for prisons to grant medical parole. That responsibility rests with the parole boards which comprise among itself medical experts who give medical advice to the authorities.

In an article on medical parole titled: Politics versus Compassion written by Nina Quinn, the author points that society can be measured by the way it treats its prisoners especially the measure shown or accorded the terminally ill inmates. The author further observes that compassionate release or medical parole is under-used and too rarely granted option for terminally ill inmates in the United States prisons.

“While some form of medical parole is in place in federal and state jurisdictions, it is overly restrictive, narrowly interpreted and muddied by political interests. Unfortunately, a lack of political will affects bureaucratic will and ultimately the number of dying released from prison,” laments Quinn.

Barry Holman of the National Centre for Institutions and Alternatives sardonically states that there is not much of a constituency for criminals in the United States.

The article also observes apart from political influence, there are related obstacles. The eligibility criteria can be overly restrictive eliminating people who are terminally ill. This process can be convoluted and delayed resulting in many inmates dying in prison before their review is completed. In New York, the 2000 statistics showed that more than twice as many inmates died during the review process than were granted release. When these three barriers of politics, criteria and process come together they virtually guarantee a fourth; lack of incentive to initiate applications.

“While there can be various factors contributing to this, Beck points to a common theme of frustration and futility. The paper burden on the medical providers can be both excessive and judged a waste of medical time so few are granted parole. Similarly, many prison staff with compassion for the dying , do not want to raise the inmates’ hopes and put them through  the stress of a long waiting period only to have them die in the process or be refused”, states Quinn in the article.

Other than holding politicians to a higher standard, what else is required for effective release policy?

A first requirement is clear legislation that is free from murky political bias, compromise and overly restrictive criteria. A clearly defined prognosis is required ÔÇô one that includes all terminally ill inmates. It should be clear and factual enough that inmates and their doctors know if they meet the criteria. And it should be fair.

In New York, where incapacitation standard is used some terminally ill are excluded because they can walk ÔÇô they may die tomorrow but they are excluded because of legislative restriction on self-ambulation.

Rather an incapacitation model where the prime emphasis is on risk, Beck makes the case for terminally ill diagnosis with one year life expectancy. Studies show that when a six months diagnosis is used, the median length of stay in hospice is roughly 30 days. One year would increase the possibility of review being completed before the applicant dies. Also, it would allow time for the patient to adjust and relate to his family or new surroundings.

Another requirement is that there be a clear separation between medical prognosis and the risk upon release. Medical staff should not be asked to assess risk but solely address the medical status and prognosis of the inmate. Risk assessment is the pervue of the criminal justice system.

It is at this stage that the process generally gets cumbersome and protracted. So many arms and voices within the criminal justice are included that the inmate may be dead before a decision is reached. The political temptation to spread the risk and decision-making as broadly as possible needs to be reined in and the process stream-lined.

Closer to home in South Africa, political expediency in some cases  has become an overriding factor for consideration for the politically connected at the expense ordinary terminally ill inmates. This is where political influence has to be carefully scrutinized so as not to taint what ordinarily would be a compassionate and noble gesture towards the terminally and chronically ill prisoners.

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