Write a 1,050- to 1,400-word paper that summarizes the arguments for and against confining sick and older adult prisoners in jail. Resource Below: O’Meara, J. G. (2010) article in this week’s Electronic Reserve Readings

Write a 1,050- to 1,400-word paper that summarizes the arguments for and against confining sick and older adult prisoners in jail.
Resource Below: O’Meara, J. G. (2010) article in this week’s Electronic Reserve Readings

Write a 1,050- to 1,400-word paper that summarizes the arguments for and against confining sick and older adult prisoners in jail.

Which of these arguments do they think have merit?
What values underlie each position?
How does medical parole or release fit into this discussion?
Provide alternative solutions to the problem and discuss their overall impacts.
Format your paper consistent with APA guidelines. Intext citations

Compassion and the Public Interest: Wisconsin’s New Compassionate Release Legislation Gregory J. O’Meara* Associate Professor, Marquette University Law School Current sentencing and parole policies can be characterized by what John Pratt terms penal populism. 1 This approach to criminal justice includes widespread increase in police surveillance and arrests,2 elimination of rehabilitation as a correctional goal,3 and an unprecedented expansion of the prison population.4 Although crime rates have been declining appreciably for some time (a decline that preceded the explosion in prison populations),5 it has become politically expedient to ignore policy suggestions based on statistical analysis and focus rather on the uninformed beliefs of the populace.6 Because the prison system is backed by a bureaucracy of its own, it continues to grow according to an internal rationality that favors constant expansion according to a decidedly retributive ethos.7 Because so much of prison life occurs far from the public’s view, changes in policy and implications of longheld truisms are rarely noticed by those who are not directly affected by the penal system. Just as Victor Hugo’s fictional Jean Valjean could be largely forgotten in the bowels of prison, women and men sentenced to correctional facilities largely fall from consciousness unless or until benign neglect is disturbed by other factors. Today, that benign neglect in Wisconsin has been disturbed by the financial constraints of maintaining the current prison population. Between 2000 and 2007, Wisconsin’s prison population increased by 14 percent.8 The State Corrections budget increased by 71 percent from 1999 to 2009.9 Wisconsin’s health care costs for adult prisoners leapt from $28.5 million in 1998 to $87.6 million in 2005.10 The Wisconsin Department of Corrections estimates that it will cost $2.5 billion between 2009 and 2019 to reduce overcrowding and accommodate the expansion of the prison system.11 As a result of looming costs, Wisconsin, like other states, has begun to reconsider implications of previously popular law-and-order policies. One product of Wisconsin’s reconsideration is a recent change in compassionate release standards for inmates in state correctional facilities.22 This legislation both expands the category of those eligible for sentence modification and streamlines the procedure.13 Although the law has much to recommend it, issues unaddressed may prove costly—notably the unintended consequences of placing financial burdens on the families or communities to which these prisoners are released in a bleak economic climate. The idea of compassionate release of elderly and ill inmates is not new.14 In 1994, Professor Marjorie Russell published a consideration of the compassionate release and medical parole programs of the fifty states and the District of Columbia.15 Only three jurisdictions, the District of Columbia, Kansas, and Maine, had no programs for the parole or release of terminally ill prisoners.16 Russell noted that [t]wenty-two states reported that they have no compassionate release program, but each has at least one method by which a terminally ill prisoner can seek release. These methods included: commutation of sentence through the administrative procedures of the DOC with no specific provision relating to the terminally ill; general claim for executive clemency; and normal parole application procedures, where the prisoner’s medical condition is only one factor to be considered in the ordinary parole decision.17 Thus, almost twenty years ago, states recognized a need for this safety valve even without providing a specific statutory grounding for it. Professor Russell maintained that compassionate release statutes address the concerns of both inmates and the states far better than do more generalized administrative procedures or clemency petitions.18 After laying out the shifts in eligibility standards and procedure between Wisconsin’s old and new compassionate release laws, I will turn to broader concerns that fall under the public-interest calculus called for in the statutes. In addition to usual criminological considerations, I suggest that the word compassionate will need to do heavy lifting if this law is to make a difference in the lives of inmates. I. Wisconsin’s Old Compassionate Release Law By way of background, Wisconsin’s current sentencing structure is relatively new; it was overhauled between 1998 and 2003 under the provisions of the state’s Truth in Sentencing legislation.19 Under that law, parole was abolished; felons sentenced to prison are now given a bifurcated (two-part) sentence in which the sentencing judge specifies an amount of time a convicted felon will FSR2301_05.indd 33 9/15/10 3:44:34 PM 34 Federal Sentencing R eporter • Vol. 23, N o. 1 • O ctober 2010 serve in prison and an amount of time the person will serve in the community on extended supervision.20 Under the original provisions of Truth in Sentencing, most inmates, with approval of the program review committee at their respective institutions, could petition the sentencing court for release to extended supervision in certain extenuating circumstances.21 However, inmates serving life sentences were not eligible to petition.22 Eligible inmates included both the elderly and the gravely ill. With regard to the elderly, the program review committee at the housing institution could consider petitions filed by prisoners either 60 or 65 years old who had served substantial portions of their sentences.23 In addition to these petitions, those who had a “terminal condition” could file for modification.24 The statute defined “terminal condition” as an incurable condition afflicting a person, caused by injury, disease, or illness, as a result of which the person has a medical prognosis that his or her life expectancy is 6 months or less, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.25 Inmates who fit within either category could then petition the program review committee of their correctional institution, requesting modification of the bifurcated sentence.26 Any request for modification based on a terminal condition required affidavits from two physicians.27 The institution’s program review committee then reviewed each petition filed and decided if the “public interest” (a phrase undefined in the statute) would be served by modifying the inmate’s sentence.28 Only if the program review committee found such interest could the inmate’s petition be referred to the sentencing court.29 The statute provided no right to appeal the program review committee’s denial of a petition for modification.30 At the sentencing court hearing, the petitioner, the district attorney, and any victim of the crime for which the petitioner was sentenced were permitted to be heard.31 The petitioner bore the burden of proving by the greater weight of the credible evidence that modification of his or her sentence would be in the public interest.32 If the court so found, any reduction in the incarceration portion of the bifurcated sentence was balanced by a like increase in the extended supervision portion so that the total length of the original sentence did not change.33 The court’s decision could be appealed by either the petitioner or the state.34 Inmate petitioners had the right to be represented by counsel, including appointment of a state public defender.35 In its study of the new legislation, the Legislative Fiscal Bureau of Wisconsin provided no evidence describing whether or how often this law resulted in the release of inmates from confinement.36 II. Wisconsin’s New Compassionate Release Law Wisconsin’s new compassionate release law simplifies earlier procedures and expands the class of inmates who can petition for sentence modification. The statute retains the distinction between those petitioning for compassionate release because of age and those who petition for reasons of ill health. The age qualifications track the previous legislation37; however, the new provision no longer bars petitions by elderly inmates sentenced to life imprisonment.38 The second category of “extraordinary health condition” may signal greater eligibility to petition under the law.39 Anyone claiming “advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution” may now petition for compassionate release.40 In terms of procedural differences, the law shifts the locus of decision making from the sentencing court to a newly created administrative panel, the Earned Release Review Commission, which replaces the parole board.41 The Commission, part of the executive branch of state government, consists of eight members who have “knowledge of or experience in corrections or criminal justice.”42 The chair is nominated by the governor and subject to state senate approval; other members are appointed by the chair.43 Inmates meeting eligibility criteria may submit petitions to the Commission.44 Upon receipt of a petition, the Commission sets a hearing to determine whether the public interest would be served by modifying the sentence as requested.45 The District Attorney from the sentencing jurisdiction and any victim of the inmate’s crime must be notified and can be present for any such hearing.46 Again, inmates must prove that granting their petition would serve the public interest by the greater weight of the credible evidence.47 For inmates who meet that burden, the Commission must modify their sentence in the manner requested.48 As was the case under the previous legislation, if the petitioner prevails and is granted a modification, the state may appeal that decision to a reviewing court (which may overturn the determination using an abuse of discretion standard).49 By contrast, inmates can only appeal from the denial of their petition under the common law right of certiorari.50 Again

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