For the Defense - Volume 2, Issue 4 - 2017 - 30

n July 24, 2017, I received a call from the
sister of a former client, "Frank." She told
me that Frank had terminal cancer. The
State Correctional Institution (SCI) where Frank
was incarcerated had been providing hospice
services for several weeks, but Frank's sister
explained that she wanted Frank to come home
so that he could die "with dignity."1
I had heard of "compassionate release," but
was not familiar with the governing statute or
with the process. I reached out to colleagues
in our local defense bar but found that they
likewise had no experience with seeking "compassionate release" for a seriously or terminally ill
Pennsylvania inmate.
Google search results included a packet
from the Pennsylvania Institutional Law Project
(Pa.ILP) about compassionate release. The packet
was authored, in part, by Peter Goldberger, an
attorney in Ardmore, and a frequent contributor to
the PACDL listserv.2
I learned that "compassionate release" is
by Pennsylvania law (substantially revised and
amended in 2008) a "deferment of sentence."3
There are two separate categories of conditions
that qualify for deferment of sentence. The first
category is the release of the seriously ill inmate
to a hospital or long-term nursing care facility.
The second category is the release of the terminally ill inmate to hospice care. The sentence is
not modified in any way. Rather, completion of
the sentence is delayed indefinitely, presumably
never to be served because it is anticipated that
the inmate will pass away. If the inmate miraculously recovers, he or she is required to serve the
remaining portion of their sentence.
There is a misconception that the Department
of Corrections (DOC) controls the compassionate
release process. In actuality, the sentencing judge
determines whether the inmate's sentence is to
be deferred under this statute.
Frank's condition warranted the deferment
of sentence for the terminally ill. Frank satisfied
all the statutory criteria: he was in need of (in
fact, already receiving) hospice services, was
not ambulatory, and was expected to die in the
"near future."4 The statute does not define "near

For The Defense | Vol. 2, Issue 4

future," so it is subject to interpretation on a case
by case basis. If the inmate is receiving hospice
services, there is a good argument that his death
is sufficiently imminent.
I reviewed the Pennsylvania Institutional
Law Project packet and the statute, as well as
several articles about the low success rate for
compassionate release petitions. I learned that
the steps to request a compassionate release are
the following:
1. Gathering the needed medical information, including letters from treating
physicians;
2. Obtaining a letter or other assurance from
the program or facility that will provide
hospice services if the inmate is released to
their care (notably, the law allows hospice
services to be provided in a "home," which
is interpreted to include a private home,
not merely a nursing home);
3. Drafting and filing the compassionate
release petition;
4. Serving the District Attorney with the
petition;5
5. Serving the DOC with the petition;
6. Scheduling a prompt hearing and arguing
for the release during a hearing; and
7. Following through to secure the immediate release of the inmate.
In order to file a petition for deferment of
sentence, it is necessary to gather various documents. Obtaining medical records from the state
prison's medical department is a good place to
start. A review of the medical records will likely
determine which type of petition is appropriate.
This process is arduous because the DOC will not
distribute any records without a signed release
from the inmate.6 The form for this purpose is
DC-108, available on the DOC website. Generally,
payment is required for the medical records, even
for indigent inmates represented by a public
defender or pro bono attorney.7 The records
can be voluminous and, therefore, expensive.
Typically, the petitioner should request records
from the last year, as well as a current prognosis.8

Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017