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$30,000 a Day for Care of Brain Dead Prisoner? Medical Release Legislation Provides Rare Opportunity to Alleviate Deficit and Prison Crowding

By Ann Nisenson and Vanessa Huang
Justice Now

“Ludicrous" is what Governor Arnold Schwarzenegger called California’s lack of process for releasing Daniel Provencio from prison in 2005. Provencio, who was left brain dead after a prison guard shot him with a foam bullet, cost the state over $30,000 a day for his care.

All of that was supposed to change in October 2007, when Schwarzenegger had the rare opportunity to pass common sense into law by signing Assembly Bill 1539, “Medical Release and Fiscal Savings Bill,” which streamlines the existing medical release process for people who are terminally ill in prison, and enables people who are permanently medically incapacitated like Provencio to also qualify. Before AB 1539 passed, people who are permanently medically incapacitated were not eligible to apply for medical release.

Members of Justice Now’s staff were among the few providing medical release services to people in prison in the 1990s, and today Justice Now continues to be the only law office in California with a principle focus on providing Californians with free legal assistance in this area. Our experience showed that there were no existing procedures before AB 1539 in place to ensure the medical release process worked for all who qualify. Specifically, a lack of notification procedures and directives to prison medical staff have resulted in about fifty percent reduction in medical releases since the mid 1990s, during the leadership of former Governor Pete Wilson. The passing of AB 1539 was meant to address this problem by implementing procedural protections to ensure fiscal responsibility and to alleviate prison overcrowding.

Under this new law, the effective release of people who are terminally ill and permanently incapacitated from prison annually would relieve the California Department of Corrections and Rehabilitation (CDCR) of approximately $10 million annually in costs associated with the care for these populations. It costs the CDCR $120,000 per personal annually to care for people who are terminally ill or incapacitated as opposed to approximately $50,000 by Medi-Cal. The federal government sponsors half of the Medi-Cal cost producing an enormous savings for the state of California. Based on past medical release cases, it is accurate to estimate that roughly half of the people released under the medical release law will be cared for at home and not in skilled nursing facilities, in which case the Medi-Cal cost incurred to the state is even smaller and the total annual savings even higher.

However, in the first test of the implementation of the new law, the Director of the CDCR recently denied a petition by a person who is quadriplegic for a medical release citing the nature of his offense and alleged behavior while in prison, raising concerns about CDCR implementation. According to the law, the only applicable standards for consideration are whether the candidate is permanently incapacitated and whether they pose a threat to public safety. The Director’s denial sets a precedent that contradicts the will of California taxpayers, our clients in prison, and the judicial system to reduce the number of people in prison and stop diverting millions of dollars of public funds in costs associated with imprisoning people in persistent vegetative states, irreversible comas, or otherwise permanently medically incapacitated.

Already, our state is home to the world’s two largest women’s prisons, and imprisons over 120,000 Californians throughout the state’s prisons, jails, and detention centers. Our prison healthcare system is under federal receivership. We cannot continue to throw good money after bad. The legislature passed AB 1539 to respond to urgent fiscal problems, and the CDCR’s recent petition denial obstructs legislative intent misses a unique win-win opportunity to move California in the right direction.

It is time to implement a common sense law, as evidenced by the broad support we received from the Los Angeles District Attorney’s Office, the California Catholic Conference, the Prison Law Office, the Coalition for Effective Public Safety, Legal Services for Prisoners with Children, the Union of American Physicians and Dentists, Breast Cancer Action, AIDS Healthcare Foundation, amongst many others.

Our state continues to face difficult budget cuts and growing numbers of people in prison. The Board of Parole hearings must decide whether it will uphold that set forth in the statute and take this opportunity for our state to benefit California families and taxpayers across the state, or whether it will support the CDCR’s choice to continue to imprison and provide medical care for persons in prison who pose no threat to public safety and cost millions of public dollars to care for in prison.

Ann Nisenson is a legal advocate and Vanessa Huang is the policy director at Justice Now, an Oakland-based organization that advocates for the legal and human rights of people in California’s women’s prisons.

Posted on June 16, 2008

Comments

This is how dum calif lawmaker are!!!.. DUM..

Posted by: demc at June 16, 2008 09:34 AM

I don't think the prisoner was "brain dead" since that is dead. He was probably in a persistent vegetative state, which is alive. It is important to use properly descriptive terms.

I agree he should be released, but his care will still be the responsibility of the state under Medical.

Posted by: Wesley J. Smith at June 16, 2008 11:41 AM

Great. Post.

It just boggles the mind how outrageous prison spending is. How do they get all this money???

Posted by: Tolman Hall at June 16, 2008 09:56 PM

The will of California taxpayers,does this mean anything to the Director of the CDCR or Arnold. At present 100 percent of those eligible for compassioate release have been denied.
What is Arnold going to do about this.
One of many that should be released; Mr. Martinez is the “poster child” for why AB1539 was passed. He was stabbed in the back of the neck while in prison, resulting in quadriplegia which exacerbates his pre-existing diabetes. His complex, labor intensive care requires 24-hour nursing staff, 7 days a week, provided by a dysfunctional health care system currently operating under federal receivership. Though unable to swat a fly off his nose, let alone pose a threat to society, prison guards are paid to observe Mr. Martinez day and night. The astronomical costs for PMI prisoners will rise predictably as the body deteriorates and inevitably fails.

According to Ken Karan, attorney for the Martinez family, “Governor Schwarzenegger should enforce the law. Mr. Martinez is the poster child for why AB 1539 was enacted. Even prison authorities admit that he is permanently medically incapacitated and eligible for release. The legislature expects BPH to follow the law in its recommendations to the court. Clearly there is no legal basis for prison authorities’ attempt to apply criteria not found in the law, and Mr. Martinez should be released.”

Posted by: Donna at June 17, 2008 11:14 AM

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