By Professor Adelina Iftene
In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present a low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released.
In 2015 I concluded a research project regarding the quality of life and the challenges faced by older prisoners incarcerated in federal institutions. During the data collection, I visited 7 institutions, at all levels of security, and I talked to 197 imprisoned men over the age of 50. Some of the findings were disturbing: 99% of the individuals suffered from at least one chronic condition; 54% of the participants reported a continuing or permanent physical disability; over 80% of the disabled individuals reported being in chronic pain, significantly more than those not reporting a disability; 5% reported being diagnosed with early stage dementia or severe memory loss; and there were numerous reports of terminally ill individuals.
Half of the participants were sentenced to life in prison, about 10% had an indeterminate sentence, and the rest were serving determinate sentences. The difficulties raised by the parole process were mentioned by numerous participants to the study, regardless of whether they were serving a determinate or indeterminate sentence. In addition to the limitations of the general parole system, compassionate release is technically non-existent in Canada, despite being legislated in the Corrections and Conditional Release Act as “parole-by-exception” (s 121). In my study, 70% of the participants had no disciplinary record, 11% were over 70 years old, and many suffered from diseases which varied from final stage cancer, to advanced MS, dementia, serious heart conditions, incontinence, epilepsy, diabetes, or had severe physical disabilities. However, none of the participants had ever heard of parole-by-exception, let alone be encouraged to apply for it by their case managers or other counsellors.
My recent article, "The Case for a New Compassionate Release Statutory Provision", (2017) 54:4 Alta L Rev 929, has two purposes. One is to show that compassionate release does not really exist in Canada. Section 121 of the Corrections and Conditional Release Act — parole by exception — is the closest Canada has to release on humanitarian grounds, but it fails to fulfill this role. The second purpose is to argue that the lack of a functional compassionate release provision is unacceptable, particularly in the context of the increase among the prison population of medical conditions associated with aging. I maintain that a system which is not flexible enough to consider extreme post-incarceration circumstances of an offender, and does not allow for a modification of the place where individuals serve their sentence based on these circumstances, is disconnected from any medical, penological, humanitarian, or constitutional requirements.
The continuing incarceration of very sick individuals is not serving anyone. It is not serving the correctional system that has to deal with high costs and overcrowding. It is not serving correctional officers who are increasingly being required to be medical practitioners for older prisoners. It is not serving the taxpayers who have to pay for the incarceration of people who represent low to no risk to public safety. It is not serving prisoners who have to endure disproportionate pain and suffering. It is not serving the prisoners’ families who have to sit back and watch their loved ones die behind bars while receiving inadequate medical care. Finally, it is not serving our society to see that punitiveness trumps other values and that rights of the old and infirm are not valued. The release of a small number of prisoners on compassionate grounds may be the most humane, legally and financially sound decision on how the correctional system should deal with them. It is why an exceptional release avenue, grounded in humanitarian reasoning, is needed.
Adelina Iftene is an assistant professor at Dalhousie University, Schulich School of Law. Professor Iftene's research can be viewed on her SSRN Author page.