Under the Prisons Act, someone may be released out of custody where cogent reasons dictate such release, naturally, the Minister of Labour and Home Affairs would have to be informed by medical┬áadvice to order such release, for example, where the prisoner has a few weeks left before their death and they are released to the care of friends and family (palliative care).
The president of Botswana, especially on Independence Day on September 30 of every year releases a number of prisoners whom the state feels have been rehabilitated enough to rejoin the society. The presidential pardon does not however seem to extend to chronically and terminally inmates. If at all such compassionate releases are made, they are rarely made public.
Part of reason for non-disclosure according to a defence lawyer who did not want to named is that the law prohibits the disclosure of one’s illness, be they prisoners or not.
His other view is that most defence lawyers seem to abandon their clients upon conviction to the extent that nobody ever motivates their release on medical parole.
“I think as defence lawyers, we don’t do much to take on the health of our clients once they have been convicted. The prison officials don’t equally do much to motivate the minister to release the terminally ill inmates. It is also an extremely tedious job to undertake especially for no pay since most prisoners would not be able to pay. The process involved in seeking medical parole is lengthy and at times the state is just simply not amenable.
“I think there ought to be appropriate political will to address this fundamental human rights issue. Parliament must clearly legislate on how these terminally ill inmates should be helped otherwise I’m afraid a lot of them are dying in prisons. There is not a single study I am aware of in Botswana that has been undertaken to address this issue. It is highly probably that terminally inmates die in prison”, said the lawyer.
A former prominent public prosecutor and present law lecturer Patrick Gunda is of the view that parliament ought to augment the current Prisons Act so that more attention could be diverted towards terminally ill inmates.
The blame equally extends to friends and relatives of the inmate who literally neglect their responsibility of checking on their imprisoned relatives.
In Botswana, the issue is further compounded by the fact that it rests finally rests with the minister instead of the parole board.
In other jurisdictions, it is not the responsibility of the minister responsible for prisons to award medical parole. That responsibility rests with the medical parole board which is comprised of medical experts who give medical advice to the authorities.
In an article on medical parole titled: Politics versus Compassion, authored by Nina Quinn, the author points out that Dostoevsky reminds us that society can be measured by the way it treats its prisoners. And part of that measure must surely be the degree of compassion we show toward the dying. Yet compassionate release, or medical parole, is an under-sued 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.
“Barry Holman of the National Centre for Institutions and Alternatives sardonically states, “There is not much of a constituency for criminals in the United States”. With overtones of Dostoevsky, he adds, “There is a lack of political and bureaucratic will to see dying in prison as a negative marker for what a prison system should be and society as a whole”.
Jack Beck; who has done a careful study of medical parole in New York States reports that not only are few people getting out, there is downward trend. Both applications and releases are dropping. In 2000, out 170 New York state prison deaths ÔÇô most from medical reasons ÔÇô 81 applied for compassionate release and only 12 were granted.
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 and similar low release numbers.
“Apart from negative political influence, there are other related obstacles. The eligibility criteria can be overly restrictive eliminating people who are terminally ill. The process can be convoluted and delayed resulting in many inmates dying in prison before their review is completed. In New York, the 2000 statistics show 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”.
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. 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 an incapacitation standard is used some terminally ill are excluded because they can walk ÔÇô they may die tomorrow but they are excluded because of the legislative restriction on self-ambulation.
Rather an incapacitation model where the prime emphasis is on risk, Beck makes the case for terminally illness 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 the medical prognosis and the risk upon release. Medical staff should not be asked to assess risk but solely address the medial status and prognosis of the inmate. Risk assessment is the preserve of criminal justice system.
It is at this stage that that the process generally gets cumbersome and protracted. So many arms and voices within the criminal; justice system are included that the inmate may be dead before a decisions 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 home in South Africa, political expediency in some cases became an overriding factor for consideration for the politically connected at the expense of ordinary citizens. This is where political influence has to be carefully scrutinised so as not to taint what would ordinarily be a compassionate and noble gesture and undertaking.