Compassionate release, or medical parole, describes a legal pathway for people who are incarcerated to be released because of severe illness. Almost every state has policies overseeing the release of individuals who are medically vulnerable, which includes a terminal diagnosis of less than six to 18 months. While these laws are offered as a form of compassion as well as to lessen the burden on the prison system, are they actually working?

In an opinion piece in the Viewpoint section of JAMA Internal Medicine, a researcher from Boston University Chobanian & Avedisian School of Medicine believes these compassionate release policies are not working.

“As a physician who spends considerable time reviewing applications for compassionate release, I can attest that very few are approved,” says corresponding author Nicole Mushero, MD, Ph.D., assistant professor of medicine at the school.

According to Mushero, the data backs this up. A Massachusetts study showed that in the first five years of medical parole, only 11% of applications were granted.

“This results in thousands of individuals eligible for medical parole dying in prisons each year, particularly Black people, who—in addition to being more likely to be arrested, convicted and sentenced to life without parole—are less likely to receive compassionate release,” says Mushero, who also is a geriatrician at Boston Medical Center.

While not all individuals with terminal illness are older, older people make up the majority of those with advanced illness, and this population is growing. Medical costs of incarcerated patients who are older than 50 years are more than twice as high as their younger counterparts because of increased health conditions.

While some cite public safety, Mushero points out that studies have shown people age out of crime, with those older than 65 approaching a near zero rate of recidivism.

“The goal of public safety is not well served by continuing to incarcerate those eligible for medical parole,” she observes.

Mushero proposes that compassionate release evaluations be done by an external medical review board instead of those working within the criminal legal system, which would allow decisions to be made explicitly on medical criteria and in an expedited fashion.

“This board would be comprised of health care professionals, including those with expertise in palliative care, geriatrics, psychiatry and general medicine,” she adds.

Mushero believes by choosing compassion for those nearing the end of their lives, society can better define justice by reorienting the punitive lens toward one of care and repair.

“As physicians, we remain steadfast in the belief that everyone should be afforded the opportunity to die with dignity and recognize any death in prison as a policy failure. We can—and must—imagine a more just future for all our patients.”