The Secretary of the Department of Corrections (DOC) may authorize an extraordinary medical placement (EMP) and transfer an offender to an alternative care setting outside of the DOC if:
Persons authorized for an EMP must be placed on electronic monitoring unless the monitoring equipment interferes with the function of medical equipment or results in the loss of funding for the person's medical care, in which case, alternative monitoring may be used. The Secretary of the DOC may revoke an EMP at any time.
The DOC has policies establishing criteria and procedures for referring, screening, placing, and monitoring individuals who are eligible for an EMP. Per policy, the individual must be seriously ill and is currently or expected to be physically or mentally incapacitated, rendering the individual unable or unlikely to engage in activities of daily living without assistance, perform gainful employment, and participate in criminal behavior.
The Secretary of the DOC is required to report annually to the Legislature on:
Based on these annual reports, as of October 2022, during the prior year, 44 incarcerated individuals were considered for an EMP and two were granted. In 2020, 75 incarcerated individuals were considered for an EMP and four were granted. In 2019, 32 incarcerated individuals were considered for an EMP and zero were granted.
The eligibility criteria for an EMP is modified so that an incarcerated individual may be authorized for an EMP if:
The list of reasons for when an alternative type of monitoring in lieu of electronic monitoring may be used is expanded to include when the monitoring equipment is detrimental to the individual's health.
References to "person" and "offender" are replaced with "incarcerated individual."
The amended bill replaces eligibility criteria for an EMP requiring that the incarcerated individual has a permanent or terminal physical disability or medical condition that is serious and complex and is expected to require costly care or treatment. Instead, the amended bill provides that, in addition to other criteria, an incarcerated individual may be authorized for an EMP when the incarcerated individual has been assessed by two physicians and is determined to be either affected by a permanent or degenerative medical condition to such a degree that the individual does not presently, and likely will not in the future, pose a threat to public safety, or the individual is in ill health and is expected to die within six months and does not presently, and likely will not in the future, pose a threat to public safety.
The amended bill removes language specifying that the electronic monitoring requirement for an individual authorized for an EMP will be waived if the individual's medical condition, as certified by the individual's treating physician, prevents the individual from being independently mobile.
(In support) This bill sets criteria for an EMP that is more nuanced than the current criteria so that people who are at the end of their lives and low risk to the community will receive compassionate release, and this in turn will save the state money. This type of compassionate release should be attainable. The qualifications for an EMP need to be adjusted. The existing statutory language for an EMP, especially the requirement of physical incapacitation, is too restrictive. Broadening eligibility requirements for an EMP is a step in the direction of a more humane and merciful justice system. The criteria language in the bill narrowed as the bill moved through the Senate committee.
The statutory restrictions on an EMP are currently too strict and prevent almost everyone from being released. The referral numbers for an EMP are much higher than the placement numbers. When the DOC determines whether an individual may be authorized for an EMP, the custody department first reviews the individual's risk level, then there is a clinical review to determine whether the individual is incapacitated. In this process, very few people are approved during the clinical review. Most people who are denied an EMP are not denied because they are too high risk, but because of the physical incapacitation standard. The language in the bill is intended to address that clinical standard while maintaining community safety.
The one disability unit that is currently in our state prisons is an awful place for anyone to die. Overall, the population in prison is aging. For many incarcerated people, dying in prison is their most pressing fear. Our prisons were never intended to meet the medical, physical, or mental health needs of the aging or ill. Release through clemency is a long process and takes years. The prison system is not humane. People are locked behind closed doors not because they pose a safety risk but because they are sick and dying.
Although the EMP option has existed for years, the DOC rarely uses it. The process for obtaining an EMP should not be so hard for someone with a serious, terminal illness. There would be huge cost savings for the DOC if this bill were adopted. This is a compassionate bill and a good approach for the state to take. The Legislature should show compassion as leaders for others to follow.
(Opposed) The language in the bill is too broad and opens up an EMP to individuals who are not physically incapacitated and do have a terminal illness. Most state statutes and the Federal Bureau of Prisons have language that requires some sort of physical incapacitation or a terminal illness to qualify for this type of release. There is a need to balance compassionate release and public safety. The balance in the current statute is more appropriate.
Under this bill, the most significant standard set forth in the new criteria for an EMP is that the individual has a permanent or terminal physical disability that is serious or complex and is expected to be costly. There are a lot of conditions that would qualify under this language. People who are not a threat to the community should be released, but the language in the bill is too broad.