THE SENATE	S.B. NO.	2248
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO PUBLIC SAFETY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  According to the Society of Correctional Physicians, an ever increasing number of people are entering prison with serious medical conditions or disabilities, while those in custody are at increasing risk of developing a serious illness or disability due to the long terms of incarceration that are being imposed through mandatory minimum sentencing.  Longer sentences and an aging population mean that correctional facilities across the United States are becoming home to a growing number of elderly adults who often have extensive and costly medical needs that are driving up the cost of incarceration.  Concern over how society should deal with the aging and seriously ill prison population has led policymakers in many states to endorse early release for older and seriously ill prisoners who pose a low risk to public safety.  As of 2009, thirty-nine states had laws governing compassionate release.  However, these laws are rarely used due to political considerations, narrow eligibility criteria, procedures that discourage inmates from applying for release, and complicated and lengthy referral and review processes.

     The authors of an article recently published in Annals of Internal Medicine, the flagship journal of the American College of Physicians, recommend broader use of "compassionate" release in the nation's prison system.  "Compassionate" release is a program through which some eligible, seriously ill prisoners are able to die outside of prison before sentence completion.  The program functions on two premises:  It is ethically and legally justifiable to release a subset of prisoners with life-limiting illnesses, and the financial costs to society of continuing to incarcerate such persons outweigh the benefits.  The United States Federal Prison System and most state systems have a compassionate or medical release program.

     Many states are also considering expanding compassionate release to include physically or mentally incapacitated and elderly prisoners in addition to those with a terminal diagnoses.  Physicians and other medical professionals thus have an opportunity to use their unique expertise and knowledge of prognosis, geriatrics, cognitive and functional decline, and palliative medicine to ensure that medical criteria for compassionate release are appropriately evidence-based.  Using this medical foundation, criminal justice professionals can balance the need for punishment with an eligible individual's appropriateness for release.  Society is incorporating compassionate release into most prison jurisdictions.  The medical profession must lend its expertise and ethical suasion to ensure that compassion is fairly delivered.

     The purpose of this Act is to establish a compassionate release program and authorize the department of public safety to assess and refer inmates to the Hawaii paroling authority for the release of inmates under the program.

     SECTION 2.  Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§353-   Compassionate release program. The department shall assess and refer inmates to the Hawaii paroling authority under the compassionate release program established by the Hawaii paroling authority under subpart    of part II."

     SECTION 3.  Chapter 353, part II, Hawaii Revised Statutes, is amended by designating sections 353-61 to 353-72 as subpart A and inserting a title before section 353-61 to read as follows:

"A. General Provisions"

     SECTION 4.  Chapter 353, Hawaii Revised Statutes, is amended by adding a new subpart to part II to be appropriately designated and to read:

"   .  Compassionate Release Program

     §353-A  Definitions.  For the purpose of this subpart, unless the context clearly requires otherwise:

     "Compassionate release" means the release of an inmate before the expiration of the inmate's sentence due to the patient's medical condition.

     "Compassionate release plan" means a comprehensive written medical and psychosocial care plan that is specific to the inmate and includes, at a minimum:

     (1)  A recommended course of treatment; and

     (2)  A plan to provide continuity of care as the inmate transitions from prison to the community.

     "Continuity of care" means an integrated system that ensures that a patient's medical needs are met as the patient transitions from one health care provider to another, from one setting to another, and from one level of care to another.

     "Department" means the department of public safety.

     "Inmate" means any person sentenced to the custody of the department of public safety.

     "Paroling authority" means the Hawaii paroling authority.

"Reasonable medical probability" means that a medical outcome is more likely to occur than to not occur.

§353-B  Compassionate release program; authority to release; rules.  (a) An inmate in the custody of the department of public safety shall be eligible to be considered for compassionate release if the inmate:

     (1)  Has an illness, disease, or medical condition with a prognosis to a reasonable medical probability that death will occur within one year;

     (2)  Has a seriously debilitating and irreversible mental or physical condition that impairs the inmate's functional ability and that can be managed more appropriately in a community setting; or

     (3)  Suffers from a serious, debilitating, and irreversible physical or mental condition related to aging that impairs the inmate's functional ability and is expected to require costly or complex care, treatment, or management.

     (b)  All requests for compassionate release shall be in writing and shall be made to the Hawaii paroling authority.  Requests may be made by the director of public safety or by an inmate or the inmate's representative.

     (c)  If a request for compassionate release of an inmate is made by the department of public safety it shall contain the following information:

     (1)  A report from a department of public safety physician stating whether or not the inmate meets the criteria for compassionate release and the basis for the physician's opinion; provided that the report shall:

         (A)  State each diagnosis that applies to the inmate and the prognosis for each condition to a reasonable medical probability;

         (B)  Discuss the results of any tests, studies, or physical findings that affect the diagnosis, prognosis, and the nature and extent of the medical treatment that will be required to manage the inmate's condition in prison within the standard of care, where applicable; and

         (C)  Provide citations to relevant medical literature, where appropriate; and

     (2)  A report on the risk for violence and recidivism, if any, that the inmate poses to society in light of such factors as the inmate's medical condition, the severity of the offense for which the inmate is incarcerated, the inmate's prison record, and the compassionate release plan, if any;

     (3)  A statement as to whether or not the department recommends compassionate release for the inmate and the reasons therefore; and

     (4)  A compassionate release plan that provides for continuity of care if the inmate meets the criteria for compassionate release.

     (c)  If a request for compassionate release is made by an inmate or the inmate's representative, it shall state the basis for the request and contain a statement as to:

     (1)  Where the inmate will reside if released;

     (2)  Who will care for the inmate;

     (3)  How the inmate will remain self-sufficient; and

     (4)  How the inmate will obtain medical insurance or pay for medical care.

All requests initiated by an inmate shall be promptly referred to the department of public safety.  Within twenty days of receiving such a request the department shall submit a report to the Hawaii paroling authority containing the information in paragraphs (1) to (3) and a recommendation from the director as to whether the inmate should be released or not.  If the director recommends release, the report shall also contain a compassionate release plan that ensures continuity of care.

     (d)  The department of public safety shall provide the inmate with all department reports pertaining to the request for compassionate release.

(e)  The Hawaii paroling authority shall conduct a hearing on all requests for compassionate release.  The hearing shall be held within fifteen days of receiving a compassionate release report from the department of public safety.  The inmate and the inmate's representative shall be permitted to participate in the hearing and submit medical and other evidence in support of the request.  The Hawaii paroling authority shall also provide the victim or victims of the inmate or the victim's or victims' family or families with the opportunity to be heard.

     (f)  The Hawaii paroling authority shall independently determine whether the inmate meets the criteria for compassionate release and shall independently assess the risk for violence and recidivism, if any, that the inmate poses to society.  The Hawaii paroling authority shall not release any inmate who poses a danger to society.  The Hawaii paroling authority shall grant or deny the request within two days of the hearing.

     (g)  A denial of compassionate release by the paroling authority shall not affect an inmate's eligibility for any other form of parole or release under applicable law.

     (h)  If the paroling authority denies compassionate release under this subpart, the inmate may not reapply or be reconsidered unless there is a demonstrated change in the inmate's medical condition.

     (i)  The director of public safety shall appoint an advocate for any inmate who is incapacitated or debilitated to the extent of being unable to advocate on behalf of the inmate's self.

     (j)  All rules and procedures pertaining to compassionate release shall be published on the websites of the department of public safety and Hawaii paroling authority.

     (k)  The Hawaii paroling authority and the department of public safety shall adopt rules in accordance with chapter 91 to implement the compassionate release program, including rules for an expedited procedure for the evaluation and release of rapidly dying prisoners.

     §353-C  Conditions of a compassionate release.  (a)  The Hawaii paroling authority shall set reasonable conditions on an inmate's compassionate release that shall apply through the date upon which the inmate's sentence would have expired.  These conditions shall include the following:

     (1)  The released inmate shall be subject to supervision by the paroling authority and shall permit officers from the paroling authority to visit the inmate at reasonable times at the inmate's home or elsewhere; and

     (2)  The released inmate shall comply with all conditions of release set by the Hawaii paroling authority.

     (b)  The Hawaii paroling authority shall promptly order an inmate returned to custody of the department to await a revocation hearing if the paroling authority receives credible information that an inmate has failed to comply with any reasonable condition set upon the inmate's release.  If the paroling authority subsequently revokes an inmate's compassionate release for failure to comply with conditions of release, the inmate shall resume serving the balance of the sentence, with credit given only for the duration of the inmate's compassionate release served in compliance with all reasonable conditions set forth pursuant to subsection (a). Revocation of an inmate's compassionate release for violating a condition of release shall not affect an inmate's eligibility for any other form of parole or release provided by law but may be used as a factor in determining eligibility for such parole or release."

     SECTION 5.  Section 353-62, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In addition to any other responsibility or duty prescribed by law for the Hawaii paroling authority, the paroling authority shall:

     (1)  Serve as the central paroling authority for the State;

     (2)  In selecting individuals for parole, consider for parole all committed persons, except in cases where the penalty of life imprisonment not subject to parole has been imposed, regardless of the nature of the offense committed;

     (3)  Determine the time at which parole shall be granted to any eligible individual as that time at which maximum benefits of the correctional institutions to the individual have been reached and the element of risk to the community is minimal;

     (4)  Establish rules of operation to determine conditions of parole applicable to any individual granted parole;

     (5)  Provide continuing custody, control, and supervision of parole individuals;

     (6)  Revoke or suspend parole and provide for the authorization of return to a correctional institution for any individual who violates parole or any conditions of parole when, in the opinion of the Hawaii paroling authority, the violation presents a risk to community safety or a significant deviation from any condition of parole;

     (7)  Discharge an individual from parole when supervision is no longer needed;

     (8)  Interpret the parole program to the public [in order] to develop a broad base of public understanding and support; [and]

     (9)  Establish the compassionate release program under subpart    ; and

    [(9)] (10)  Recommend to the legislature sound parole legislation and recommend to the governor sound parole administration."

     SECTION 6.  In codifying the new sections added by section 4 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

Report Title:

Paroling Authority; Compassionate Release Program

Description:

Requires the Hawaii paroling authority to establish a compassionate release program for inmates who are permanently and totally disabled, terminally ill, or have a serious debilitating and irreversible mental or physical condition, and pose no public safety risk.  Requests the department of public safety to assess and refer inmates to the Hawaii paroling authority.  Sets conditions for compassionate release.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.