Compassionate Release Act

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The Compassionate Release Act (22:16 min, 25.5 MB).

Introduction

The Compassionate Release Act is a pivotal step toward humane sentencing reform in the state of Florida that would position the state as a leader in compassionate justice by addressing gaps in existing frameworks. Florida's current "conditional medical release" is limited to nonviolent offenders deemed permanently incapacitated or terminally ill, but lacks robust retroactive provisions.

This proposed bill aims to address the needs of all incarcerated individuals suffering from terminal illnesses, or severe physical or mental disabilities, by providing them an opportunity to request sentence modifications. By balancing the principles of justice with compassion, the Act not only seeks to alleviate undue suffering but also aligns with the state’s interest in cost-effective and ethically sound criminal justice practices.

Consider the example of Allan Brash. Alan grew up in the rough and tough housing projects of South Boston. Like many young men there, he idolized the Irish mobsters who hung in the local pubs and taverns with their flashy lifestyles - the money, the women, the cars. To join their ranks, he committed a murder in his early twenties. Now, forty years later, early onset Alzheimer's is erasing his mind. His mental condition is quickly deteriorating, and soon he will not even understand why he is imprisoned. His sister is willing to assume the burden of his constant care, but the state refuses to release him. Many others face similarly debilitating conditions - some physical, some mental - yet the state insists on extracting its full measure of punishment, serving no purpose beyond retribution. It’s time to ask: Is this justice, or is it cruelty?

image showing majority of prisoners going to graveyard, and one leaving prison by compassionate release

Analysis of Desirability and Logic

The Compassionate Release Act is both desirable and logical for several reasons:

Humanitarian Considerations: Incarcerated individuals diagnosed with terminal illnesses or debilitating conditions often endure unnecessary suffering when left to serve their full sentences. The act recognizes that terminal illness or severe disability fundamentally changes an inmate's circumstances and potential threat level, and allows them to spend their final days with family, potentially receiving better healthcare. Offering compassionate release also acknowledges that continued incarceration of severely disabled individuals may constitute cruel and unusual punishment and reflects the state's commitment to upholding basic human rights.
Rehabilitation and Reconciliation: Compassionate release can allow individuals to spend their remaining time with loved ones, potentially facilitating reconciliation and closure before the end of life.
Community Safety: By requiring offenders to demonstrate they are not a threat to society, the Act ensures public safety remains paramount while offering a measure of grace and humanity.
Cost Savings: Caring for terminally ill or severely disabled prisoners incurs significant costs. Compassionate release reduces these expenditures by transitioning eligible individuals to probationary oversight.
Judicial Oversight: The Act provides a fair process with court hearings to weigh evidence, maintaining checks and balances in sentence modifications.

Legislative Comparisons: Other States’ Approaches

Similar compassionate release provisions exist in various states, offering valuable insights:

California: Under California Penal Code Section 1170(e), inmates with terminal illnesses and a life expectancy of six months or less may petition for compassionate release. The law considers public safety and the burden of medical care on the state. The state has seen positive outcomes, with reduced medical costs and successful reintegration of released individuals.
New York: The New York Department of Corrections and Community Supervision offers a “Medical Parole” program for inmates who are terminally ill or permanently incapacitated, provided they pose no danger to society. The program has helped mitigate overcrowding and provided humane treatment for seriously ill inmates.
Texas: Texas Code of Criminal Procedure Article 42.12 allows for “Medically Recommended Intensive Supervision” for inmates who meet specific criteria, including medical incapacitation. The program is designed to address humanitarian concerns and reduce the state's incarceration costs.
Federal System: The U.S. Bureau of Prisons authorizes compassionate release for inmates meeting specific medical or age-related conditions under 18 U.S.C. § 3582(c)(1)(A).

map of America prepared by FAMM.org depicting states that have compassionate release. notably Florida is missing

These examples demonstrate that compassionate release is a nationally recognized practice for reducing the burdens of incarceration on vulnerable populations while maintaining public safety.

Full text of the proposed statute.

Statutory Text

HB - 0000, SB - 000

A bill to be entitled

The Compassionate Release Act, creating s. 921.1404, F.S.; providing for its retroactive application; providing an effective date.

Be it enacted by the legislature of the State of Florida:

Section 1. Section 921, 1404, Florida Statutes, is created to read:

Section 921.1404, Compassionate Release Act.

(1) Definitions. - As used in this section:

(a) "Competent medical authority" means:

1. A physician licensed under chapter 458 or chapter 459 who is:

a. Employed by the Department of Corrections or its contracted healthcare provider; or

b. A specialist in the relevant field of medicine who has provided care to the offender; and

2. Has personally examined the offender within 90 days prior to the submission of the medical certification.

(b) "Terminal illness" means an incurable condition that will likely:

1. Result in death within three years; and

2. Is caused by illness or disease and not as a result of trauma.

(d) "Instrumental Activities of Daily Living" (IADLs) means cooking, cleaning, shopping, managing finances, using transportation.

(e) "Cognitive function" means memory, attention, judgment, decision-making.

(f) "Physical mobility" meand walking, standing, sitting, climbing stairs.

1. Significantly diminishes the ability to perform ADLs; and

2. Requires substantial assistance from others to perform IADLs.

(d) "Mental disability" means a severe mental impairment that:

1. Is permanent and irreversible based on current medical knowledge;

2. Is documented through standardized cognitive testing and clinical evaluation by qualified medical authorities;

3. Significantly diminishes the person's ability to:

a. Understand and process information;

b. Communicate effectively;

c. Make rational decisions about daily living; or

d. Control behavior and impulses;

4. Requires substantial assistance or supervision for protection of the person or others; and

5. Results in the person having insufficient ability to:

a. Plan and execute criminal acts;

b. Maintain relationships necessary for criminal enterprise; or

c. Pose a credible threat to public safety.

(2) Any offender who is diagnosed with a terminal illness and is given a life expectancy of 3 years or less by competent medical authorities, or who becomes physically or mentally disabled while incarcerated, may move the court of original jurisdiction to modify his or her sentence.

(3) If the offender offers evidence in the motion for modification of sentence and the required documentation that he or she suffers from a terminal illness, or is physically or mentally disabled, as defined in this section, and is not a threat to society, the court shall hold a hearing to weigh the evidence within 90 days of the filing date.

(4) Required Documentation. - A motion for modification under this section must include:

(a) Medical certification, which shall include:

1. A written statement from a competent medical authority on a form provided by the Department of Corrections or an official letterhead including the medical authority's credentials and contact information, certifying:

a. The specific terminal illness, physical disability, or mental disability;

b. The prognosis, including estimated life expectancy if terminal;

c. The level of care required; and

d. Whether the condition significantly diminishes the risk of future criminal behavior.

2. Supporting documentation including:

a. Relevant diagnostic test results;

b. Recent medical records from the past 12 months;

c. Treatment plans and medications; and

d. Any relevant specialist consultations.

e. A sworn affidavit from the competent medical authority attesting to the accuracy and completeness of the submitted medical documentation.

(b) A release of medical information form signed by the offender or his or her legal representative to enable the court to review copies of relevant medical records, including treatment plans, hospital records, and diagnostic test results that substantiate the diagnosis and prognosis..

1. Where the offender will reside;

2. How medical care will be provided and funded;

3. The identity of designated caregivers; and

4. Contact information for healthcare providers who have agreed to provide care.

(5) Verification and Updates.

(a) The Department of Corrections shall respond to any request for authentication of medical records within 10 days of receipt of the request.

(b) If more than 60 days pass between the medical certification and the hearing date, updated medical documentation must be provided.

(6)Second Opinion: (Optional) At the court's discretion, a second opinion from another competent medical authority may be required for verification purposes.

(7) If the court grants the motion for modification, it shall convert the sentence to a term of probation equalling the time remaining to be served in prison and/or on probation.

(8) If the court denies the motion for modification, no appeal is permitted, but the offender may move the court yearly thereafter.

(9) The Department of Corrections shall:

(a) Develop standardized forms for submission to the courts.

(b) Track release outcomes in compassionate release cases.

(b) Separately monitor recidivism rates in compassionate release cases.

(c)Calculate cost savings for the department.

(d)Assess impact on prison healthcare system.

(10) This section shall apply retroactively.

FAQs - Compassionate Release Act

Frequently Asked Questions

Q. What is the primary objective of the proposed Compassionate Release Act in Florida?

A. The primary goal of the Compassionate Release Act is to establish a legal avenue for incarcerated individuals who are suffering from terminal illnesses, severe physical disabilities, or severe mental disabilities to petition for a modification of their sentence. It aims to balance justice with compassion while also being fiscally responsible, recognizing that continued incarceration may cause undue suffering and place an unnecessary burden on the state’s resources. The Act also addresses limitations in Florida’s existing conditional medical release framework, which is not retroactive and has a narrower scope.

Q. How does the Compassionate Release Act define "terminal illness," "physical disability," and "mental disability," and why are these definitions significant?

A. The Act provides specific definitions to clarify eligibility:

Terminal illness: An incurable condition, caused by illness or disease (not trauma) that will likely result in death within three years.
Physical disability: A severe, permanent, and irreversible impairment that significantly diminishes the ability to perform basic Activities of Daily Living (ADLs) such as eating, bathing, and dressing and requires substantial assistance with Instrumental Activities of Daily Living (IADLs) like cooking and managing finances.
Mental Disability: A severe and permanent mental impairment, documented by cognitive testing and clinical evaluation, that significantly impacts the person's ability to understand information, communicate, make rational decisions, or control their behavior and impulses, and that must also result in the person not being a threat to the public.

These definitions are crucial because they establish the criteria for determining who qualifies for compassionate release and ensure that the law is applied consistently and that the criteria address public safety. By making these definitions detailed and specific, the Act seeks to limit who qualifies for release only to those for whom continued incarceration serves no purpose.

Q. What are the primary factors that a court must consider when evaluating a motion for compassionate release?

A. When evaluating a motion, the court must consider if:

The offender meets the criteria for either a terminal illness, physical disability, or mental disability as defined by the act.
The offender is not a threat to the public, based on the severity of their condition, including if their condition “significantly diminishes the risk of future criminal behavior”.
The medical documentation provided from a "competent medical authority" is complete and accurate. This includes a prognosis, estimated life expectancy if terminal, required level of care, and a statement on whether the condition diminishes future risk of criminal behavior.
A proposed care plan is viable and outlines where the offender will live, how medical care will be funded, and the identity of the designated caregivers, along with their contact information.

The court is required to weigh the evidence and hold a hearing within 90 days of the filing date of the motion, but only if these criteria have been met.

Q. What is the role of "competent medical authority" in the Compassionate Release process?

A "competent medical authority" plays a central role, as they must provide the medical certification required in a motion for modification. The authority must be a physician licensed in Florida who has personally examined the offender within 90 days prior to the submission of the medical certification. They must either be employed by the Department of Corrections (or a contracted provider), or be a specialist in the relevant field who has cared for the offender. The medical certification needs to include a specific diagnosis, prognosis, level of care required, and a statement on whether the condition reduces the risk of future criminal behavior.

Q. How does the Compassionate Release Act address public safety concerns?

A. The Act emphasizes public safety by:

Requiring offenders to demonstrate that they are not a threat to society as part of the motion to modify their sentence.
Requiring the medical certification to include whether the medical condition of the offender significantly reduces the risk of future criminal behavior.
Defining mental disabilities in a way that requires that the person’s condition diminishes their capacity to plan and execute criminal acts.

The court must evaluate not just medical evidence, but evidence of an offender's behavior and condition that makes them a non-threat. These components help to ensure that only those who pose minimal risk to the community are eligible for release.

Q. What specific documentation must be included in a motion for modification of sentence under the proposed Act?

A. A motion for sentence modification must include:

A medical certification, which must be from a qualified physician ("competent medical authority") who has personally examined the offender within the last 90 days. This must include:
- the specific terminal illness, physical disability, or mental disability;
- the prognosis, including estimated life expectancy if terminal;
- the level of care required; and
- whether the condition significantly diminishes the risk of future criminal behavior.
Supporting medical documentation, such as diagnostic test results, medical records from the past 12 months, treatment plans, and specialist consultations.
A release of medical information form, signed by the offender, to allow the court to review relevant medical documentation.
A proposed care plan that includes the residence for the released offender, how medical care will be provided and funded, the identity of designated caregivers, and their contact information. These provisions are in place to ensure transparency and to allow the courts to make informed decisions.

Q. If a court denies a motion for modification under the Compassionate Release Act, can the offender appeal the decision?

A. No, the Act specifically states that if the court denies the motion for modification, no appeal is permitted. However, the offender is allowed to submit another motion to the court annually. This ensures that the process does not become overly burdened with endless appeals, and allows for annual reconsideration in cases where conditions may have changed.

Q. What are the responsibilities of the Florida Department of Corrections if the Compassionate Release Act is enacted?

A. If the Act becomes law, the Department of Corrections (DOC) is responsible for:

Developing standardized forms for submission to the courts.
Responding within 10 days to requests to authenticate medical records.
Tracking release outcomes in compassionate release cases.
Separately monitoring recidivism rates in compassionate release cases.
Calculating cost savings that resulted from the Act.
Assessing the program's impact on the prison healthcare system.

These tasks are essential for monitoring the Act's effectiveness, ensuring its fiscal impact is understood, and making necessary improvements.

Briefing Document

The Compassionate Release Act in Florida Brief

Date: November 28, 2024

Prepared for: Interested Parties, Stakeholders

Subject: Analysis of Proposed Compassionate Release Act in Florida

Introduction

This briefing document provides a comprehensive overview of the proposed "Compassionate Release Act" in Florida, as detailed by FreedomForceFlorida.org. The Act aims to introduce a more humane approach to sentencing by allowing the release of incarcerated individuals who are terminally ill or severely disabled. The document reviews the core arguments for the Act, its proposed structure, legislative comparisons with other states and the key elements of the proposed statute.

Main Themes and Key Ideas:

Humanitarian Reform:

The core driving force behind the Act is a humanitarian concern for incarcerated individuals suffering from terminal illnesses or severe disabilities. As stated in the Introduction, the bill aims "to alleviate undue suffering" by providing a pathway for release.

The Act is framed as a move towards "humane sentencing reform," reflecting a broader trend toward a more compassionate criminal justice system. The text highlights that continued incarceration of such individuals often serves no penological purpose and results in "unnecessary suffering."

Cost-Effectiveness:

The document emphasizes the economic advantages of compassionate release, stating that "caring for terminally ill or severely disabled prisoners incurs significant costs."

The Act is posited as a means to reduce these costs by transitioning eligible individuals to "probationary oversight" or potentially in-home care scenarios. This is positioned as an alignment with the state’s interest in “cost-effective and ethically sound criminal justice practices.”

The Department of Corrections will be tracking costs as well, as point (9)(c) states the department will "calculate cost savings for the department."

Public Safety:

The Act stresses that public safety remains a paramount concern, as stated that the Act "requires offenders to demonstrate they are not a threat to society.” The court is mandated to consider whether the condition "significantly diminishes the risk of future criminal behavior" before approving the release.

The eligibility criteria, as further defined in the proposed bill, establish the court's responsibility to consider if the disabilities make it impossible for the incarcerated person to pose a credible threat to public safety.

The definitions of mental disability include specific points to determine if an individual has insufficient ability to "plan and execute criminal acts," or "maintain relationships necessary for criminal enterprise."

Judicial Oversight and Due Process:

The proposed bill includes a formal process involving court hearings. This ensures "checks and balances in sentence modifications," providing both safeguards against misuse of the law and ensuring that all cases are considered through a formal judicial process.

The Act mandates a hearing within 90 days of filing for review of documentation.

Further, the Act requires "updated medical documentation" if there are more than 60 days between the medical certification and the hearing date.

Alignment with National Trends:

The document presents comparable compassionate release provisions in other states (California, New York, and Texas) and the federal system (U.S. Bureau of Prisons), positioning Florida’s proposed Act as in line with established national practices.

The existence of similar policies elsewhere is used to support the idea that compassionate release is a "nationally recognized practice," which supports the argument that the practice is neither novel nor radical.

These legislative comparisons help illustrate how other regions are working to reduce "the burdens of incarceration on vulnerable populations while maintaining public safety."

Retroactive Application:

A crucial aspect of the bill is its retroactive application, as stated, "This section shall apply retroactively." This clause indicates that the law will apply to prisoners who were incarcerated before the law's enactment, thereby expanding the potential scope of compassionate release eligibility.

Key Provisions of the Proposed Statute:

Definitions: The statute provides clear definitions for "terminal illness," "physical disability," and "mental disability," alongside criteria for demonstrating impairments in Activities of Daily Living (ADLs), Instrumental Activities of Daily Living (IADLs), cognitive function, and physical mobility. These definitions create a legal standard for the bill.

Eligibility: Inmates diagnosed with a terminal illness with a life expectancy of three years or less, or those who become physically or mentally disabled while incarcerated are eligible to petition for release.

The definitions of "physical disability" and "mental disability" are narrow and explicit. For example, the definitions require that the impairments are severe, permanent, irreversible, and significantly reduce the capacity to carry out ADLs or to manage one's behavior.

Medical Certification: The statute specifies the requirement for detailed medical certification from qualified physicians (a "competent medical authority"). This includes specific medical documentation, prognosis, level of care needed and a statement on whether the condition reduces the risk of future criminal behavior.

Proposed Care Plan: The incarcerated individual must also provide a detailed plan that demonstrates where the individual will live, how they will receive and fund medical care, and includes specific contact information of those providing care.

Verification and Updates: The law requires the Department of Corrections to verify medical records, provide updates as needed and allows for the option of a court-requested second opinion.

Probation: If release is granted, the sentence is converted to probation, equivalent to the remaining time in prison or on parole. The Act also allows the Department of Corrections to develop standardized forms for submission to the courts, track compassionate release outcomes and separately monitor recidivism rates.

Limited Appeals: The law specifies that no appeal is permitted if a motion for modification is denied, but offenders may submit another motion annually.

Key Quotes from the Document:

"The proposed Compassionate Release Act is a pivotal step toward humane sentencing reform in the state of Florida..." (Introduction)

"By balancing the principles of justice with compassion, the Act not only seeks to alleviate undue suffering but also aligns with the state’s interest in cost-effective and ethically sound criminal justice practices." (Introduction)

"Incarcerated individuals diagnosed with terminal illnesses or debilitating conditions often endure unnecessary suffering when left to serve their full sentences." (Analysis of Desirability and Logic - Humanitarian Considerations)

"The Act ensures public safety remains paramount." (Analysis of Desirability and Logic - Community Safety)

"This policy is not only humane but also fiscally responsible and protective of public safety." (Conclusion)

Conclusion:

The proposed Compassionate Release Act in Florida represents a significant step towards creating a more humane and fiscally responsible criminal justice system. By allowing for the release of terminally ill or severely disabled individuals, the Act aims to reduce unnecessary suffering, lower healthcare costs, and align Florida with other progressive states. The statute is drafted with a number of safety precautions to ensure that public safety is prioritized during the process. The retroactive application of the act broadens its reach and potential impact within the prison system. The Act clearly identifies the importance of not just fairness, but also compassion, dignity, and pragmatism in the penal system.

This briefing document should serve as a starting point for discussions and further analysis of the proposed Compassionate Release Act.

Study Guide

Compassionate Release Act: Study Guide

Short Answer Quiz

What is the primary goal of the proposed Compassionate Release Act?
How does the Compassionate Release Act differ from Florida's existing "conditional medical release?"
What are the three main types of conditions that would qualify an incarcerated person for consideration under the proposed Act?
Name three reasons the text identifies the Compassionate Release Act as desirable and logical.
What is the main requirement for the "competent medical authority" providing a medical certification?
What is the meaning of "Activities of Daily Living" as defined by the proposed legislation?
What documentation is required in a motion for modification under this proposed act?
What action must the court take if the offender provides sufficient evidence and documentation?
What is the consequence if the court denies the motion for modification of the sentence?
In addition to developing standardized forms for submission, what four additional tasks are assigned to the Department of Corrections if the Act becomes law?

Short Answer Quiz - Answer Key

The primary goal is to provide a pathway for incarcerated individuals with terminal illnesses, or severe physical or mental disabilities to request sentence modifications. The Act aims to balance justice with compassion while also being fiscally responsible.
Florida's existing conditional medical release is limited to nonviolent offenders who are permanently incapacitated or terminally ill, lacking retroactive provisions. The Compassionate Release Act aims to address the needs of all incarcerated individuals with a broader range of qualifying conditions.
The three conditions are terminal illness, physical disability, and mental disability. Each has specific criteria described in the bill.
The text identifies humanitarian considerations, cost savings, and public safety as reasons why the Act is desirable and logical. It also mentions judicial oversight.
The competent medical authority must be a physician licensed under chapter 458 or 459 who has personally examined the offender within 90 days prior to the submission of the medical certification and is either employed by the Department of Corrections or a relevant specialist.
"Activities of Daily Living" (ADLs) refers to essential daily functions such as eating, bathing, dressing, toileting, and transferring.
A motion for modification under this section must include: medical certification from a competent medical authority, a release of medical information form signed by the offender, and a proposed care plan.
If the offender provides sufficient evidence and required documentation, the court is required to hold a hearing to weigh the evidence within 90 days of the filing date.
If the court denies the motion for modification, the offender is not permitted to appeal, but they may move the court yearly thereafter.
The Department of Corrections is assigned to: track release outcomes in compassionate release cases, monitor recidivism rates in compassionate release cases, calculate cost savings, and assess the impact on the prison healthcare system.

Essay Questions

Compare and contrast the compassionate release provisions in Florida (as proposed) with the provisions of other states mentioned in the text, and analyze the potential effectiveness of each approach.
Evaluate the ethical and practical considerations surrounding the implementation of the Compassionate Release Act in Florida, addressing both the potential benefits and challenges.
Analyze how the specific definitions of "terminal illness," "physical disability," and "mental disability" in the proposed legislation would impact who is eligible for compassionate release. What changes, if any, would you propose?
Discuss the interplay between humanitarian concerns, fiscal responsibility, and public safety in the context of compassionate release, and assess whether the Compassionate Release Act achieves a reasonable balance among these competing factors.
Considering the potential for both positive and negative consequences, argue for or against the enactment of the Compassionate Release Act in Florida.

Glossary of Key Terms

Activities of Daily Living (ADLs): Basic self-care tasks necessary for independent living, including eating, bathing, dressing, toileting, and transferring.
Cognitive Function: The mental processes involved in thinking, understanding, learning, and problem-solving, including memory, attention, judgment, and decision-making.
Compassionate Release: A legal process allowing the early release of incarcerated individuals who are terminally ill or have severe physical or mental disabilities.
Competent Medical Authority: A qualified physician who can provide medical certification of an offender's medical condition and meet requirements for education and recency of examination.
Conditional Medical Release: A form of release from incarceration due to medical conditions, often with restrictions and limitations.
Instrumental Activities of Daily Living (IADLs): More complex daily tasks needed for independent living, including cooking, cleaning, shopping, managing finances, and using transportation.
Mental Disability: A severe and permanent mental impairment that significantly diminishes a person's ability to understand and process information, communicate effectively, make rational decisions, control behavior, and/or manage impulse and which poses no threat to the public.
Physical Disability: A severe and permanent physical impairment that significantly diminishes a person's ability to perform activities of daily living and requires substantial assistance with instrumental activities of daily living.
Recidivism: The tendency of a convicted criminal to reoffend.
Retroactive Application: Applying a law to past situations or offenses.
Terminal Illness: An incurable condition that is expected to result in death, within a defined period of time, usually as the result of an illness or disease, and not due to traumatic injury.

Conclusion

By enacting the Compassionate Release Act, Florida will join the ranks of progressive states addressing this critical issue. This policy is not only humane but also fiscally responsible and protective of public safety. As an essential component of criminal justice reform, the Act reflects the values of fairness, dignity, and pragmatism, and provides a pathway for release when continued incarceration serves no legitimate penological purpose.