California?s Compassionate Release Law Expanded to Include the Medically Incapacitated

California?s compassionate release law, which already provided that prisoners who were physician-certified to have less than six months to live may apply for recall of sentence and release, was expanded to include those who are totally medically incapacitated. In addition, the procedures to gain compassionate release were streamlined to speed up approvals.

Assembly Bill (AB) 1539 was signed into law in October 2007, amending Penal Code § 1170(e) relating to the discretion vested in the secretary of corrections and the Board of Parole Hearings (BPH) to recommend a recall of sentence to the sentencing court. § 1170(e)(2), which previously provided such discretion if (A) the prisoner is incurably terminally ill with less than six months to live and (B) the prisoner?s release conditions would not pose a threat to public safety, now offers, in lieu of (A), (C) the prisoner is so medically incapacitated that he/she is permanently unable to perform activities of daily living and requires 24-hour total care, such as being in a coma or vegetative state, brain-dead, or on a ventilator (and that these conditions did not exist at the time of sentencing). These provisions do not apply to prisoners sentenced to death or life without parole.

Other provisions of amended § 1170 provide for procedures to gain such consideration. The court must give the required hearing within ten days after a positive recommendation by prison or BPH authorities. Another provision offers the prisoner?s family the chance to request such release directly of the prison?s Chief Medical Officer, who may then recommend court proceedings. Also provided is that once approved by the court, the prisoner must be released within 48 hours, and shall have in their possession a discharge medical summary, full medical records, state identification, parole medications and all personal property.

In other words, if you want to relieve the state of your medical costs and can afford private medical care, you may apply to stay in a coma someplace other than the prison hospital. It would seem the rare instance wherein a prisoner or his family could afford such 24-hour care, only to sustain such a dismal quality of life. And predictably, the ?threat to public safety?provision will probably be used to engender denials based upon public outcry by victims? rights groups and politicians. See: Assembly Pill 1539, Chapter 740, California Legislative Counsel?s Digest, October 14, 2007.