Expanded prison medical release eligibility provides opportunity for more sick, aging incarcerated people to go home before they die
Three sisters feared their 64-year-old father, diagnosed with stage 4 lung cancer, would die in prison. One called Sandra Hardee, executive director of NC-CURE, a group advocating for people in prison, pleading for help.
“I’ve got to get him out,” Hardee said the daughter told her through tears during a phone call. “He’s going to die. He’s not being cared for.”
Hardee told her to pursue medical release, a way some incarcerated people can be released for specific health issues before serving their full sentence. Their father, who was sentenced in 2021 to nearly three years in prison for a low-level drug crime, was terminally ill and deteriorating. The daughters questioned whether he was getting the chemotherapy he needed.
This summer, the North Carolina Post-Release and Parole Commission granted his medical release.
He reunited with his daughters, and they ensured that he got to the doctors and treatments he needed.
“Their relief to have him home was great,” Hardee said.
That man is one of 65 people since 2019 who have been granted medical release from prison by the Parole Commission, according to data from the Department of Adult Correction shared with NC Health News.
Language in this year’s state budget that passed last month expands the eligibility criteria for medical release from North Carolina prisons, potentially providing more sick and aging incarcerated people the opportunity to go home before they die.
The new law rolls back the eligibility age for “geriatric” medical release by 10 years — from 65 to 55 — and decreases the risk standard guiding all releases. The new guideline says that people must pose “no risk or low risk” to public safety, instead of the previous absolute of “does not pose a safety risk.”
Hardee called the changes a “win-win” for the prison system, incarcerated folks and their families.
“This makes sense — to allow people who can go home where they’re being taken care of and they're being watched carefully, to reduce the burden on the prison system,” Hardee said.
Need for change
For years, medical release has been narrowly available for old or sick incarcerated people on several grounds. They must have either been so sick that they were likely to die within six months, had a condition that made them “permanently and totally disabled” or were at least 65 years old with a chronic, debilitating disease related to aging. Everyone granted release also had to be deemed to “not pose a safety risk.”
The criteria has been in need of modification for years, said Susan Pollitt, an attorney at Disability Rights NC who specializes in defending the rights of people with disabilities who are incarcerated. North Carolina’s law has long been stricter than those in surrounding states, she said.
“At a certain point in a person's life, they’re much less likely to continue on a criminal trend,” Pollitt said. “If they’re also ill and sick and costing a lot of money to care for, it just doesn’t make common sense for people to be confined in prison at that point.”
Pollitt, along with other advocates, recommended changes in 2018 when the now-defunct Program Evaluation Division at the N.C. General Assembly analyzed the state’s medical release program and whether changes could lower prison health care costs.
Years later, changes have been made. It took the collaboration of state lawmakers, the Department of Adult Correction and prison rights advocacy groups.
“Together we worked through some really simple and logical changes that I would say are really guided by data and science and also compassion for people,” said Yvette Garcia Missri, executive director of Duke University Law School’s Wilson Center for Science and Justice.
Provisions on page 448 of the 625-page state budget expand the medical release eligibility criteria, allowing terminally ill people deemed to be within nine months of death, as well as people age 55 years and older who suffer from a disease that makes them medically incapacitated to be considered for “geriatric” medical release.
Lowering the geriatric age requirement from 65 to 55 years old means thousands more people could be candidates for release. Currently, 4,051 people between the ages of 55 and 65 are incarcerated in North Carolina prisons, according to Department of Adult Correction data, though not all would newly qualify for release based on their sentence and health status.
Analysis by the North Carolina Sentencing and Policy Advisory Commission shows that reoffense rates decline with age.
Additionally, anyone granted release must be medically incapacitated to the extent that they pose “no risk or low risk to public safety” under the new law — a language shift that moves from the previous standard one had to be assessed as posing “no safety risk.”
Department of Adult Correction spokesperson John Bull said in a statement to NC Health News that the risk evaluation criteria change is the most significant part of the legislation.
“No risk is a high bar to clear,” he wrote. “Low risk is not quite as high a bar to clear.”
Bull said this means more people will probably be released based on being considered “low risk to public safety.” He also said that the prison system does not anticipate a surge in the volume of medical releases due to the eligibility criteria changes.
Since 2019, 15 to 45 people each year have been denied medical release based on their sentences or risk to public safety, Bull said. To put this new law into practice, Bull said prison officials still need to reach a consensus and define what “low risk” means.
People released from prison under medical release are not just sent home; they remain subject to state supervision until the date upon which the person would have been released.
“These policies are not creating any danger,” said Tarrah Callahan, executive director of Conservatives for Criminal Justice Reform. “They’re just letting people out that have tremendous health concerns that our systems are not set up to be able to manage.”
Who is eligible for early medical release?
- (1) An individual diagnosed as permanently and totally disabled, terminally ill or geriatric
- Geriatric: An incarcerated person who is 55 years of age or older and suffers from chronic infirmity, illness or disease that has progressed so that they are medically incapacitated.
- Permanently and totally disabled: An incarcerated person who, as determined by a physician, suffers from permanent and irreversible physical incapacitation that has progressed to render them permanently and totally disabled.
- Terminally ill: An incarcerated person who, as determined by a physician, has an incurable condition that has progressed to render them terminally ill and that will likely produce death within nine months.
- (2) A person is incapacitated to the extent that they pose no risk or low risk to public safety.
- Exclusions: People incarcerated for Class A, B1 or B2 felonies (first-degree murder, second-degree murder, possession of weapons of mass destruction, etc.), or for an offense that requires placement on the sex offender registry.
Growing demands of an aging population
People aged 55 and older comprise five times as much of the prison population as they did three decades ago, according to an analysis by Prison Policy Initiative. From 1991 to 2021, the percentage of the state and federal prison population in this age demographic swelled from 3 percent to 15 percent, in part because of mandatory minimum sentences and other “tough on crime” policies that keep people behind bars for longer. In North Carolina, 5,239 people, or 16.7 percent of the total state prison population, are currently 55 years and older, according to data from the Department of Adult Correction.
Prison is an especially tough place to age, Hardee said.
“We know that people with disabilities and frailties are more subject to violence and abuse,” she said. “They are seen as weak.”
Furthermore, research shows that incarceration accelerates aging, some studies indicating that incarcerated people have two fewer years of life expectancy. Others show that people face chronic and life-threatening illnesses earlier in prison than would be expected for someone outside.
Addressing the medical needs of this population is a growing demand.
In North Carolina, prison health care spending has ballooned 51 percent over the past 10 years, according to a February presentation to lawmakers by the General Assembly’s Fiscal Research Division. One factor in that increase is the growing aging population.
In fiscal year 2021-22, the state spent $357.4 million on prison health care services.
To help meet the needs of elderly incarcerated people, the prison system established a dedicated long-term skilled nursing facility in Central Prison in Raleigh to care for elderly and infirm incarcerated people, including those with terminal illnesses. The idea is that prison health care costs will be reduced by lowering the need to move incarcerated people to other hospitals when their conditions get worse.
Although renovations of the facility concluded in March 2019, the unit only opened in early August, Bull told NC Health News, after yearslong delays caused by funding and staffing challenges. The unit currently houses 35 people and can provide care for a total of 40 long-term care patients, Bull said.
Garcia Missri said the sickest, oldest people in prison can cost the state up to a million dollars a year.
In addition to high costs, providing intensive medical care for these individuals also strains the prison health care staff who administer the care and the correctional officers who transport incarcerated people to and from appointments during a time of historic vacancy rates in both positions. Challenges recruiting and retaining staff in these positions will likely persist despite the state budget’s allocation of 7 percent pay raises over the next two years for most state employees — many people say that amount does not go far enough to tackle vacancy problems.
“If we can remove people from prison, who could be well cared for in another location, that will ease up the overcrowding that’s resulted from understaffing,” Hardee said.
Garcia Missri expects there will be cost savings for the prison system from sending more people home under medical release, especially due to the passage of Medicaid expansion — in which many people released from prison may be newly eligible for Medicaid.
“A lot of the care that was happening in prison will be replaced by family members,” Garcia Missri said. “Also on the sort of justice side, a person will probably receive care that they weren't receiving in prison as well.”
Will more people be released?Advocates would like to see increased use of medical release. They say it can be used as a mechanism to ease the burden on the prison system while giving incarcerated people and their families what they want — time at home with their loved ones.
“For those of us who have sat with a loved one who is dying, we know that it’s a really difficult thing. But it’s also a gift to be able to be with them and to be able to say goodbye,” Garcia Missri said. “It’s very difficult on families to miss out on that, and it’s difficult for the person who is ill in prison not to have that with their families. So I think, for them, this is going to make a significant difference.”
Even with the new language, advocacy groups say the review process needs to be streamlined so it doesn’t take as long. Since 2019, incarcerated people have died every year waiting for a decision to be made in their case.
“Their jobs are to confine people convicted of crimes,” Pollitt said. “Their instinct is not to try and release people, so it’s sort of causing the whole system to do something that they don’t do very often. And probably each case raises a lot of complications for them.”
While Pollitt said she understands some of the delay is likely driven by understaffing of social workers who are responsible for ensuring an appropriate home plan before release, she said she’s also seen the prison system work fast to release 3,500 people early during the COVID pandemic. Pollitt hopes lessons learned in that process can be channeled into the practice of medical release to put it to better use for the prison system and families.
“I do think that we are approaching this tipping point where there’s really not going to be much choice but to start thinking about if people currently in prison need to be there,” Callahan said.