Final Requests

Robert Lee Dana, California inmate #B81537, was the rarest of prisoners, at once serving a seven-years-to-life sentence and condemned to death as well.

Dana's life sentence was imposed by the state of California for two counts of first-degree murder, stemming from a drunken argument he had in 1976 with a friend and the woman his friend was involved with. The death sentence came from a prison doctor earlier this year who determined that Dana's cancer gave him no more than six months to live.

As it happened, he died after three and a half months.

Dana suffered from lymphoma that had spread to his abdomen, and from leukemia. He also had severe coronary artery disease, chronic atrial fibrillation, and congestive heart failure.

"My health is real bad," Dana confided last fall, six weeks before his death. "Each day that goes by, you go down and down. I don't know how much time I've got. I may not make it. But I'm going to hang in there."

Dana had already applied for what's known as a compassionate release, which allows inmates with terminal illnesses and limited life expectancies to spend their last days outside prison walls with loved ones. But as close to death as Dana was by then, there was still no guarantee that his last request would be granted. In fact, says Nora Wilson, a staff attorney with Justice Now who was advocating for Dana, compassionate release is "a very, very rare occurrence."

"Just this past summer," she notes, the Oakland-based advocacy group "had a record-breaking run when we busted three guys out. Usually we have to fight and fight just to get one person out."

Wilson's point is confirmed by the state's own statistics: From 2007 through the first ten months of 2013, the California Department of Corrections and Rehabilitation (CDCR) received 488 compassionate release requests for review; it approved just 99. Twenty-nine of these terminally ill inmates were set free in 2010 - a high-water mark. The year before, only four got out.

Robert Dana didn't want to spend his dying days at the California Medical Facility State Prison in Vacaville, where he was transferred in 1989. Established in 1955 to provide health care services to convicted felons, the facility includes a general acute-care hospital, a licensed elderly care unit, in-patient and out-patient psychiatric facilities, and a hospice.

Its chaplain, Keith Knauf, administers to the spiritual needs of inmates at the hospice unit where Dana was kept. "For us as staff, you see these guys, and their bodies are just wracked with illness," he says. "Compassionate release doesn't happen often, and when it does, the guys usually don't live that long when they get out. But at least they're with their families."

The criteria for compassionate release are both stringent and complex. To be eligible under the state Penal Code, a prisoner must be "terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department." (See Cal. Penal Code § 1107 (e)(2)(A).)

The law, enacted in 1976, also allows for release if the prisoner is permanently incapacitated by a medical condition and "unable to perform activities of basic daily living," requiring 24-hour care. Qualifying conditions include, but aren't limited to, "coma, persistent vegetative state, brain death, ventilator-dependency, [and] loss of control of muscular or neurological function." The applicant cannot have been incapacitated at the time of his sentencing and cannot be serving a sentence that allows no possibility of parole. (§ 1170(e)(2)(B).)

Just getting a Department of Corrections doctor to certify that an inmate has no more than six months to live can be a formidable challenge, says Steven Fama, a staff attorney with the Prison Law Office in Berkeley. "For example, with end-stage liver disease," he says, "the very name implies that the condition will be terminal. But doctors won't generally declare that the inmate has six months or less to live. ... I've been told more than once that the end may come in six months or it may come in three years."

If a CDCR doctor does determine that an inmate meets the criteria for compassionate release, and the prison's chief physician and medical executives agree, then, depending on whether the inmate has a determinate or indeterminate sentence, either the Undersecretary of Operations or the Board of Parole Hearings decides whether to recommend him to the sentencing court, which has the final word. The board and the undersecretary both look at factors such as the prisoner's behavior behind bars, his criminal history, the impact of his crime on the victims and their families, and whether he poses a public-safety threat.

Compassionate release applications can run into trouble for other reasons as well. Consider the case of Marvin Chaplin, who is serving a life sentence (with the possibility of parole) for bank robbery under California's three-strikes law. Last June, a doctor concluded that his stage 4 lung cancer met the medical criteria for compassionate release. Yet his request was denied because he failed to come up with an acceptable release plan. Chaplin originally planned to live with a sister in Indiana, but she resides in Section 8 housing, and federal law prohibits convicted felons from living there. Nevertheless, at this writing Chaplin hasn't given up hope.

"Who wouldn't want to take that last walk on the beach and see the ocean again or go to the library or out for lunch?" he says. "Just things you can do when you're free. I'm going to try to apply for compassionate release again, but if it doesn't come through, I guess I'll just stay here."

Once the undersecretary or the Board of Parole Hearings signs off on a release, the request must still be reviewed by a superior court judge in the county where the inmate was originally sentenced. (§ 1170(e)(8).) The inmate can hire an attorney for this hearing, but more often than not he is represented by a public defender whose job, in part, is to present a release plan that specifies exactly where the inmate plans to spend his remaining days. Usually it's at the home of a loved one. Sometimes it's at a private in-patient hospice facility, where the quality of care can vary widely.

If the inmate's request for compassionate release is not recommended to the court, he can petition for a writ of habeas corpus, which is often denied. If a request makes it to court but is denied there, the applicant could file a notice of appeal. However, in July the Fourth District held that there is no right to appeal a court's compassionate release denial. The state Supreme Court, in turn, granted a review, and a decision is pending at this writing. (See People v. Lopez, No. S211840.)

"This is one of those areas of the law that doesn't get much attention," says L. Richard Braucher, a staff attorney at the First District Appellate Project who has represented several compassionate release inmates on appeal. "These people are pretty invisible."

Even criminal defense attorneys often don't understand the process. "You'd be shocked how many times I call down to the public defender's office when someone's case goes to the sentencing court and no one has heard one word about compassionate release," says Justice Now's Wilson. "Most attorneys have no idea about it."

As rarely as compassionate releases are granted, the practice still draws strong opposition - especially from victims' rights groups. Why, they ask, should the state grant compassion to criminals who showed no compassion for their victims?

"If you look at the amount of pain that they inflicted on that victim and their families, I just can't find that soft spot that says to me that we should make this person's last days become this wonderful compassionate situation," says Jan Miller, president of Citizens Against Homicide, based in San Rafael. "I think that we have the right to expect an inmate's full sentence - whatever it is - to be carried out. Because that is truly the only justice that we are given for the loss of our loved ones."

Miller cofounded Citizens Against Homicide in 1994, after her eldest daughter was murdered, a crime that still hasn't been solved. She recently polled members of her group informally by email, asking their opinions about compassionate release, and the replies, not surprisingly, were uniformly negative.

One member wrote: "My only thought would be, 'Did the murderer show compassion in killing another person?' The victim never had a short time to say good-bye to loved ones, friends, and colleagues. Why does a murderer get this opportunity?"

Another wrote: "When the murderer brings back to life the victims he killed, perhaps then we can consider early release for him."

"No, no way, no compassion, they die in jail," wrote a third.

For prosecutors, the main issue is public safety, explains Jill Klinge, deputy district attorney for Alameda County. "Some of the inmates are ill and they are dying, but they can still move and do what they want to do," observes Klinge, who has appeared at parole board hearings to weigh in on compassionate release requests. "They don't have a lot to lose, frankly, because they're going to die soon anyway. So if they're set on hurting somebody, there's not a lot of incentive not to."

As someone who'd been convicted of two homicides, Robert Dana realized that he was not an especially sympathetic candidate for compassionate release. In fact, it was only very late in the process that he admitted to anyone that he was guilty of the Sutter County slayings. And even then, he argued that he should never have been convicted of first-degree murder because his crimes were committed in the heat of the moment under the influence of alcohol.

So on what basis should a case like Dana's be evaluated? Last September, as he awaited a decision, he pondered the question. "When it comes to getting compassionate release, I would look at everything this man has done in the past, how the conviction happened, why it happened," he said. "I would follow every step he made in prison. Prison is a good place to hide, you know? Is he really trying to find out what happened? Is he working towards it, or is he just playing? Is this guy ready for release, or is he fooling? Is he really in with God, or is he not?"

Oddly enough, even though the requirements for compassionate release are set forth in the relevant portions of California's Penal Code section 1170, the word compassion appears nowhere in the statute. On the other hand, there has been and continues to be a genuine concern among state legislators about the cost of caring for severely ill inmates.

One state senator who has extensively studied this issue is Mark Leno (D-San Francisco). "We found that about 1,300 out of 170,000 inmates - less than 1 percent - were costing the state around $200 million a year," he says. "And it was not just the medical costs. Sometimes sick prisoners had to go to outside facilities, often in long-term care. Because they were still prisoners, they had to have guards at their bedside 24/7. In some cases we were paying overtime costs for armed guards to watch over comatose people. That made no sense at all."

To reduce these costs, Leno sponsored SB 1399, which three years ago created a separate statutory category known as medical parole. Under this law, the Board of Parole Hearings has the power to grant parole to an inmate if the prison's chief medical officer determines that the prisoner is permanently unable to perform activities of basic daily living, resulting in the need for 24-hour care. Medical parole does not need the approval of a judge. (See Cal. Penal Code § 3350.)

Unlike prisoners granted compassionate release, those who obtain medical parole remain under the supervision of the CDCR, and they must comply with all of the other standard conditions of parole, including regular contact with a parole officer. And if the released inmate's condition improves, the expectation is he would be returned to custody. Since SB 1399 took effect, according to the CDCR, the Board of Parole Hearings has heard 62 requests for medical parole, granting all but 7.

But even with those numbers, Leno believes that the CDCR isn't doing enough to expedite these requests. "They're just not doing their job well enough or quickly enough in my opinion," he says. "I believe there are ways to ensure public safety and save taxpayer money. Sometimes people are more interested in revenge than spending our tax dollars wisely. If someone can't get out of bed, I don't believe they are a risk to public safety."

Of course, the goal of saving the state money is not necessarily in the best interests of incarcerated patients who, up until their release, receive state-paid, 24/7 care. And that's where the issue can get complicated.

What kind of care are inmates likely to receive on the outside? "The answer is, you never know," confides Dr. David Mathis, hospice director at the California Medical Facility prison in Vacaville. But, he adds, "I don't think that the medical care they get outside is going to be significantly better than what we have here."

To be sure, caring for the terminally ill is hard work, and perhaps even more so for relatives of long-incarcerated inmates with whom they've had only sporadic contact. In some cases, inmates' families simply refuse to take on that responsibility. And even professional hospice centers are not always able or willing to provide adequate care.

"As DAs, one of the things we look at is whether the inmate is going to get the care they should if they are released," says Deputy DA Klinge, "We had one assisted- living situation where they had four inmates in one room. We had another guy whose medical parole was revoked because he was acting out and had to be physically restrained to prevent him from falling out of bed."

The CDCR makes an effort to see that released inmates will receive adequate medical care. To that end, the detailed plans submitted to the court for a compassionate release must spell out who will be taking care of them and under what circumstances. If the release is approved, a CDCR social worker also evaluates the plan and advises the parole board and the court liaisons whether it seems realistic.

"We don't just dump somebody off on the street corner," says Knauf, the Vacaville chaplain. "When an inmate leaves here, they don't go unless the doctors and the custody people know there's a place set up for hospice care. I haven't had anybody complain about the care they've received outside, and we keep tabs on the inmates when they leave."

In the past, appeals of compassionate release court denials were even less likely to succeed than the original applications, and a decision could take up to a year. One appellant who beat the odds, though, was Carl Wade, a 66-year-old inmate serving a sentence of 32 years to life for fatally shooting his trailer mate and fellow woodcutter in Lake County after a fistfight in 1986.

By 2007 Wade relied on a wheelchair, and only with extreme difficulty could he get himself into bed. In the summer of 2011, the Board of Parole Hearings recommended Wade for compassionate release by a vote of 10-1, and the matter was assigned to Lake County Superior Court Judge Andrew S. Blum for a final ruling.

Judge Blum showed little compassion for Wade. He tartly opined that the inmate was "not crippled," and that in spite of Wade's physical limitations there was still a chance he might "wheel himself right out the front door," perhaps joining friends who could "take him to the bar down the street and have a good time." Blum denied Wade's request.

The following May, however, Wade's attorney, Braucher of the First District Appellate Project, persuaded the First District Court of Appeal to overturn Blum's ruling. As the appellate court put it in a withering opinion, Blum had spun "the most fanciful speculative scenario, without any factual basis." The opinion noted further that "an abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. Such was the case here." (People v. Wade, 2012 WL 1759369 at *14 (Cal. Ct. App [unpub.]).)

Wade's prison commitment was officially recalled, clearing him for compassionate release on May 29. But it was too late: He died in prison on May 30.

"You have a legislature that has said for financial reasons we need to release these dying patients because it's cheaper to treat them in the community," says Braucher. "But the trial courts are essentially ignoring this on a regular basis. There's a reluctance on the part of bench officers to follow the law. They don't want to be seen as soft on crime."

By September 2013, Robert Dana had satisfied all of the preliminary requirements for compassionate release. However, on the afternoon of October 2, a prison counselor approached Dana's bedside to let him know that the Sutter County Superior Court had refused his final request.

"I was shocked when I got the news," Dana said the next day, his voice cracking with emotion. "It's really hard for me to understand why one judge would turn it down when everybody else was behind the release. I'm still trying to understand."

The Sutter County District Attorney's office had not opposed Dana's release, accepting the CDCR's conclusion that the terminally ill inmate would not be a threat to public safety. But at Dana's 30-minute court hearing two days before, Judge Chris Chandler expressed concern that the submitted release plan did not ensure that the applicant would get the care he needed. Dana had planned to live with his daughter in Nevada, where she shared a two-bedroom apartment with three other tenants.

"Dana seemed to be a legally appropriate candidate for compassionate release," says Cameron King, deputy district attorney for Sutter County. "But the judge was concerned that he would be taken out of a place where he had medical care and round-the-clock attention and put in a place - his daughter's home - where the situation was more uncertain."

(Neither Judge Chandler, nor Dana's public defender, Mark Van den Heuvel, responded to interview requests.)

In addition to the questions raised about Dana's release plan, the Sutter County court also noted that he was predisposed to substance abuse, and speculated that if he took too much prescribed pain medication, he could pose a threat to public safety.

But Dana's prison physician had a different take. "Hospice patients are afforded narcotic pain relief as necessary. Mr. Dana took Tylenol with codeine, generally avoiding the offered small dose of morphine. I did not feel that he was likely to be any threat to public safety in my experience with him," Dr. Mathis declared in an email.

The ruling was also a disappointment for Justice Now's Wilson, who had worked for nearly two years to secure Dana's release. "This is just another example of a court spinning a worst-case scenario and using that as a legal basis to deny someone the opportunity to go home with their family and let them die in dignity," she said.

Dana's condition deteriorated rapidly after he was denied compassionate release. "It took away his heart," Chaplain Knauf attests.

On November 2 Robert Dana died peacefully in the Vacaville prison hospice, just hours after he saw his daughter and grandchildren for the last time. At his bedside were three fellow inmates, each paid 18 cents an hour to provide hospice care to dying prisoners.

Inmate # B81537 was 75 years old.

Tom McNichol is a San Francisco-based freelance writer.

---