Compassionate Release in Indiana
By Natalie Medley, currently incarcerated at Indiana Womens’ Prison
Compassionate release is the reduction of a sentence for circumstances needing humane intervention in incarcerated individuals’ experiences; whereby the morality of continual imprisonment changes. Imminent death, significant illness, or old age are circumstances that may alter the public interest in the continual imprisonment of impacted individuals. Federally, the passage of The First Step Act expanded incentives to reward compliance in the Federal Bureau of Prisons (FBOP)’s use of compassionate release for those in its jurisdictions. Procedurally, the FBOP makes recommendation to the sentencing court when a request is approved [1]. However, the compassionate release amendment in the First Step Act allows clients to bring their own motions to a federal judge after exhaustion of FBOP procedures [2]. Indiana would benefit from committed compliance and review of its compassionate release procedures as well as removing the process from the political domain and making it a legal one [3].
Contrasting Federal law, Indiana law does not detail criteria for compassionate release. Instead, Indiana law qualifies the Indiana Parole Board as a division of the Indiana Department of Correction (IDOC) [4]. Concerning compassionate release applications, the Parole Board acts as an intermediary between those seeking relief and the Governor [5]. It is the IDOC that outlines criteria and the petitioning process for compassionate release applications. IDOC Administrative Policy, “Adult Offender Releases”, describes procedures to request appearances with the Parole Board, either clemency or medical clemency requests [6]. Each option has differing qualifying criteria with the final decision resting with the Governor [7].
Prior to 1979, or the “Old Code”, Indiana bestowed final authority in early release decisions with the Parole Board and not the Governor [8]. This made determinations for such releases apolitical, providing the appearance of an impartial and unbiased decision maker. Since the change issuing final authority for such decisions to the Governor, no single woman has been granted clemency, and minimal women have been granted medical clemency, only for imminent death cases [9]. The political ramifications for the Governor are equivalent to political death, making decision-making much too risky for impartiality. The process must be placed in a legal sphere if it is to have fair and honest application in the justice system.
Two options are available in Indiana for compassionate release requests: clemency or medical clemency [10]. Medical clemency is extremely burdensome and requires many approvals for the continuation of the request. According to policy, it is permitted in cases of terminal illness or if an incarcerated individual would be better served at another institution [11]. To gain relief, the facility’s Health Services Administrator (HSA) meets with the case management, health services staff, and the incarcerated person if possible. The HSA initiates the application and forwards it to Classification who forwards it to the Medical Director. Next, it returns to the HSA who sends it to the Warden for approval or denial. After that, the request goes to Central Office’s Chief-of-Staff, Chief Medical Officer, Executive Director of Re-Entry, Legal Services, Deputy Commissioners, and the Commissioner, whose denial may result in the Parole Board declining consideration of the petition. It is the Parole Board that must make the recommendation to the Governor for final approval [12].
Without a terminal condition or in need of institutional care, clemency is the only other option for those requesting compassionate release. It requires mandatory completion of 1/3 of a total imposed sentence, but the sentence must be longer than 10 years. Additional considerations must also be met. The incarcerated person initiates clemency by contacting staff and submitting a form. The Warden provides a recommendation to the Parole Board who investigates, contacts all parties, and holds both a public and private hearing. The Parole Board makes its recommendation to the Governor for approval [13].
The federal criminal system’s compassionate release procedures are found in federal code [14]. They delineate medical and non-medical circumstances for compassionate release considerations [15]. Medical considerations include terminal medical conditions, debilitating medical conditions, elderly persons with medical conditions, and elderly inmates over 65 years of age, having served the greater of 10 years or 75% of their sentence [16]. Non-medical circumstances include incapacitation of a spouse or registered partner.
The Families Against Mandatory Minimums (FAMM) coalition ran a compassionate release campaign, issuing summaries of compassionate release policies and the need for these policies in systems across the U.S. [17]. FAMM provided findings on individual state’s compassionate release processes in 2018. For Indiana, FAMM reported: “There is no publicly available information as to how many clemency or special medical clemency petitions the Governor of Indiana has granted”. While this may be true, publicly available information of the Parole Board’s “official actions” are accessible, and maintaining statistical information concerning its services and decisions is outlined in Indiana Code [18]. Since making clemency recommendations to the Governor under Indiana Code 11-9-2 is an official action of the Parole Board, it is misleading to claim publicly available information concerning clemency and medical clemency petitions is unavailable. In fact, the Parole Board keeps information concerning the Governor’s decisions on compassionate release decisions [19]. Transparency was denied to FAMM, a watchdog organization, due to the exceptionally poor track record of compassionate release cases in Indiana.
For 20 years, I have been incarcerated inside of Indiana’s female prisons. I have known of no woman ever having been granted clemency under new law scenarios. I have been aware of a few terminal medical conditions whose requests were granted, albeit in the 11th hour. Most relevant are the many requests that are denied and the women I have watched die inside of prison with no family and poor medical care, sometimes in extremely inhumane conditions.
The aging population can barely get around the prison. Many elderly women and sick women require 24-hour care. These people must depend on other inmates to shower, get dressed, use the restroom, eat, transport, etc. Inmates are not certified or trained in these ways, and the elderly and sick are the most vulnerable of our populations. They suffer humiliation with strangers to care for them. Women are forced to suffer oppressive restrictions and lack of medical care and most deaths.
Angie Elliott is a 51 year old confined to a wheelchair. She has major compression of the spinal cord, neuropathy, acquired deformity of the hip, polyneuropathy, and many more diagnoses. She has no physical therapy. She must be cared for by other inmates. The housing conditions are not conducive to her medical needs, with extremely heavy doors that are locked every time she enters or exits her room. The sidewalks are not wheelchair friendly, yet Angie must be pushed in a wheelchair every day to pick up her medication, causing immense pain. Her condition is chronic and debilitating, yet she could get better with proper medical care. She was sentenced to 40 years and has completed 9 years, not enough to request clemency.
Ronica Starks has been on dialysis for 8 years. Her incarceration prevents her from being on a state donor list. Her mother and sister had kidneys for donation, but because IDOC will not pay for organ transplants, Ronica missed the opportunity, having lost both of her family members to death. The ineffective care of her dialysis port caused the lack of circulation to her fingers, requiring one finger to be amputated. She was not given a death sentence, yet her life is gambled in the restrictions upon her life possibilities. Her prosecutor will not consent to a modification which is required under Indiana law. Yet her prosecutor suggests that IDOC can initiate an administrative procedure. IDOC will not permit a medical clemency petition without a terminal illness. Ronica’s will be if she is not cared for. She has done 20 years.
Linda Chesei has been in prison for 30 years. She is 70 years old. Her co-defendants have all been released from prison. She filed for clemency in 2014. She received a copy of the fax from the Governor (at the time Mike Pence) stating society was better without her in it.
Compassionate release is necessary for morality. Promote compassionate release in Indiana by demanding humane action in these ways:
Remove clemency and medical clemency requests from political realms, and restore the process to the legal domain. Provide the process an impartial and non-partisan decision-maker.
Use statistical accounting as a measure of the compassionate release processes. Make this incentive for the use of compassionate release for those who pose little risk to the public safety.
Seek statistical information from IDOC:
Percentage or numbers of inmate populations over 50 years old
Number of inmates with high level medical care, restricted to wheelchairs, or assigned other inmate medical assistants
Number of inmates in need of an organ transplant or who are undergoing dialysis
Number of inmates having served 30 plus years
Require an online death registry for IDOC and jail deaths dating back to 1990. Require prisons and jails to display memorial sights for the deceased in its care.
Return humanity in Indiana.
In loving memory of:
Pam Brown, Glenda Robinette, Karen Carter, Princolla Shields, Tammy Aver, Janet Burtrand, Donna Stites, Gilda Smith, Janet Atherton, Jan Chin, Carolyn Hampton, and the many more not sentenced to death but having died in prison…
Kansas Federal Public Defender: The First Step Act and Compassionate Release, 1-10-19, Federico, Rich, AFPD.
https://kansasfpd.blogspot.com/2019/01/the-first-step-act-compassionate-release.html, p. 1Sentencing Law and Policy: Compassionate Release After First Step, 2-18-19, Blog: Berman, Douglas A. https://sentencing.typepad.com/sentencing_law_and_policy/2019/02/compassionate-release, p. 1
Compassionate release in Indiana must find approval from the Governor, a politically elected official. Removing the process, restoring it back to the 5 person Parole Board who all have to agree, or submitting petitions to the sentencing courts instead of the Governor, restores the legal process to the legal realm.
IC 11-9-1-1 (a)
IC 11-9-1-2 (a)(3) and IC 11-9-2-1
A.P. 01-04-105 pages VIII-I – VIII-8
Clemency requires a sentence greater than 10 years with 1/3 of the sentence completed and a clear institutional record for one year. Medical clemency requires a terminal medical condition or one that would be more effectively treated in another type of facility.
A.P. 01-04-105 pages VIII-II – VIII-13
This is based upon the knowledge I have as a prisoner.
This contradicts the report FAMM put out saying any medical condition will qualify under “Special Medical Clemency”. Also, no option for temporary leaves has been used in the maximum security prisons, contradicting FAMM’s reporting that is an option for the terminally ill (FAMM: Compassionate Release Indiana June 2018).
A.P. 01-04-105 p. VIII-5
Id. p. VIII-8
Id. p. VIII-4
18 U.S.C. 3582(c)(1)(A) & 4205(g)
Policy Statement USS6 1B1.13
Id
FAMM, June 2018, Everywhere and Nowhere: Compassionate Release in the States.
IC 11-9-1-2(a)(5) and (4)
A.P. 01-104-105 p. VIII-4(12) and VIII-8(23)
