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AFSC Michigan Commentary on Medically Frail Bills

Mr. Iron, a prisoner in Michigan, shown with his wfe
Mr. Iron served nearly 50 years in Michigan prisons before dying of cancer at a prison hospital. Photo: / AFSC

On May 22, 2019, Michigan Governor Gretchen Whitmer signed House Bills 4129-4132, allowing some seriously ill or medically frail incarcerated people to be paroled to nursing homes or medical facilities for treatment. The new policy will yield both humanitarian and fiscal benefits: Permitting terminally ill and medically frail individuals to spend their last few days outside of prison enables them to die with dignity closer to family, and it shifts costs away from the state and onto the federal government.

(While incarcerated, individuals cannot receive Medicare or Medicaid, so the Michigan Department of Corrections (MDOC) must pay for their care. Once paroled, those same individuals may receive Medicaid and Medicare, which is partially financed by the federal government.)
 
While we at the AFSC Michigan Criminal Justice Program are pleased about the possibility of release for these individuals and the savings to Michigan taxpayers, we believe that HB 4129-4132 does not go far enough. Further, in order to make the law palatable for passage, the bills compromised whole groups of people’s eligibility for compassionate release. This political compromise is, arguably, a product of two things: (1) the attachment of powerful stakeholders within the criminal legal system to the notion of retribution, and (2) fear borne of the unfounded belief that a person's worst choice permanently determines who they are.

For years, AFSC has accompanied countless people in prison and the people who love them through the last months of their lives. One such case left a lasting imprint on all of us at AFSC. Mr. Iron was an elderly, honorably discharged US veteran living in prison. He had served nearly 50 years of a life without parole sentence for first-degree murder. He was sentenced in Calhoun County in 1968. His wife visited him every week for 48 years of the nearly 50 years that he lived in prison. During the last two years of his incarceration, she became too old and frail herself to continue weekly visits, so she only visited on their birthdays.
 
Mr. Iron was diagnosed with terminal cancer a year before he died. Over the years, AFSC and MDOC prison health care staff worked toward a medical commutation for him, to no avail. Instead, he remained in end-of-life care at Duane Waters Hospital (DWH)--the prison hospital. Mr. Iron’s family had limited ability to visit him, as DWH is a Level V (high-security) facility and bedridden individuals within it cannot have bedside visits unless they are “actively terminal.”
 
Further, Mr. Iron was 80 years old when he died and had been a model prisoner for years—no tickets, no trouble--with deep ties to his family and community.
 
His wife had to get permission to visit his bedside, where, ultimately, she had one half hour with him on the morning he died. Mr. Iron suffered through the end of life process without access to his family; he suffered without the people who love him nearby. His wife suffered immensely from this disconnection.
 
The opportunity for parole will surely be meaningful to the few who are newly eligible, but too few people will be eligible. Although an estimated 450-500 people may become eligible for medical frailty parole in the future based upon their chronic care needs, Governor Whitmer’s office and MDOC acknowledge that, currently, only, between 20-30 people will become eligible for parole under the new statutes (Whitmer Press Release).
 
As of March 2019, the population within MDOC Correctional facilities totaled 38,562 people (from MDOC Offender Census Summary Report - March 2019). At most, 530 people (30 in the near term, 500 in the long term) will benefit from HB 4129-4132, which constitutes a mere 1.4% of the total MDOC prison population and 3.75% of the nearly 800 individuals in MDOC custody who are considered “medically frail.” (See "Old, Sick and Expensive.")
 
Furthermore, the individuals excluded from the benefits of these bills are the same ones most likely to need medical frailty parole. Only a small number of people will become eligible for relief in part  because these bills systematically exclude entire populations of people in prison. HB 4129 “allows medically frail prisoners to be paroled to receive medical attention, but does not extend parole to prisoners convicted of first-degree criminal sexual conduct or any crime punishable by life without parole” (Whitmer Press Release).

According to the most recent MDOC Statistical Report (published in 2019, containing 2017 data) there are 3,846 people incarcerated in Michigan for first-degree criminal sexual conduct, and another 3,999 in prison for first-degree murder--the two categories of convictions for which people are excluded from medical frailty parole. This means that 7,845 people, or 20% of MDOC’s prison population, are excluded from the opportunities provided by the new medically frail parole bills.
 
The 20% of the population excluded from the bills’ provisions contains a disproportionately large number of the medically frail individuals in prison, due to the nature of their sentences. People with extremely long sentences and life sentences are, by design, likely to become elderly and ill in prison. Because those same individuals are not eligible for medically frail parole, many will die in prison, and their costly healthcare needs will be footed by Michigan taxpayers.
 
As populations in prison age, the need for comprehensive and compassionate medical parole--and the injustice of excluding long-serving individuals from it--will only increase. Although the prison population in Michigan has steadily declined since 2006, people in Michigan prisons have grown older and sicker. Michigan has one of the longest average length of stays in prisons across the nation. As a result, the average age of people in prison in Michigan has risen from 34 years 1998 to 39 years in 2019.

Approximately 45% of the prison population is over 40 years old, and approximately 25% is 50 years or older (Prisoner Age Distribution and Health Care). The costs of providing healthcare to people in Michigan prisons has increased since 2003 as well, at a rate of 4% annually. It costs taxpayers $7,920 annually to provide healthcare to the average individual in prison; for older and sicker people in prison, healthcare costs can  reach hundreds of thousands of dollars per person per year.
 
So, what do we know? We know that people serving long sentences in Michigan are getting older, sicker, and costlier to the state. We also know that sending people to prison forever does not make any of us safer. While we acknowledge that many people who become medically frail in prison have caused serious and terrible harms in their pasts, they currently pose no threat to public safety upon becoming medically frail.

“Medically frail” is a designation reserved for the most ill--primarily, elderly people with advanced dementia or Alzheimer's, or people with late stage terminal cancer. Do we actually believe these individuals pose a risk to public safety? Or do we simply dislike them for what they may have done decades before? We, as a community, must decide how we would answer these questions. The stipulations included in HB 4129-4132 suggest the latter, more retributive explanation.
 
Comprehensive compassionate release would center around truly meeting the individual needs of each person as each case is reviewed. The current law replaces one form of institutionalization with another form of institutionalization. The law allows the parole board to have jurisdiction to move people to a medical care center, which could mean a nursing home, hospital, or hospice center. It does not, however, mean going home to family to be cared for by loved ones.
 
AFSC often works with medically frail people in prison and their families at the end of life. We see how difficult it can be for family members to simply visit their loved ones who are dying in MDOC prisons because prisons are not set up to meet all the needs of dying people. Our current commutation process typically takes months; as such, most medically frail people do not survive this process and, instead, die in prison.

We need a real medical parole process for all medically frail people, many of whom are, by design, incarcerated for the most severe of offenses. House Bills 4129-4132 are a start, but we need more. We need to create policy rooted not in anger or vengeance, but in compassion and pragmatism. We need a compassionate parole process that accounts for all people near the end of life and for people suffering from complicated and expensive health issues, not just those with whom the public sympathizes most. It is not just the right thing to do, but it is also the most cost-efficient thing to do for Michigan taxpayers.

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