The collision of care and punishment: Ageing prisoners’ view on compassionate release
| Published date | 01 January 2017 |
| DOI | 10.1177/1462474516644679 |
| Date | 01 January 2017 |
| Author | Bernice Elger,Wiebke Bretschneider,Violet Handtke,Tenzin Wangmo |
| Subject Matter | Articles |
Article
Punishment & Society
2017, Vol. 19(1) 5–22
! The Author(s) 2016
The collision of care and
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punishment: Ageing
DOI: 10.1177/1462474516644679
pun.sagepub.com
prisoners’ view on
compassionate release
Violet Handtke and Wiebke Bretschneider
University of Basel, Switzerland
Bernice Elger
University of Basel, Switzerland
Tenzin Wangmo
University of Basel, Switzerland
Abstract
Most prisoners wish to spend their last days outside prison. Early release of seriously ill
and ageing prisoners, commonly termed compassionate release, can be granted based
on legal regulations but is rarely successful. The aim of this paper is to present the views
of ageing prisoners on compassionate release using qualitative interviews. Participants
argued for compassionate release on the grounds of illness and old age, citing respect
for human dignity. Their hopes of an early release however often contradicted their
actual experiences. Framing these results within Garland’s depiction of the criminology of
the self and the criminology of the other, it is evident that in reality, the punitive strategy
prevails. This strategy explains the rare use of compassionate release and how it nega-
tively impacts prisoners’ access to end-of-life care. A possible solution is the welfarist
criminology, strongly supported by a human rights approach. Awareness of the domin-
ance of the punitive strategy is crucial for medical personnel as they are best placed to
ensure access to end-of-life care for prisoners through compassionate release.
Keywords
Europe, geriatric release, human rights, medical release, older prisoner
Corresponding author:
Violet Handtke, Institute for Biomedical Ethics, University of Basel, Bernoullistrasse 28, 4056 Basel,
Switzerland.
Email: v.handtke@unibas.ch
6
Punishment & Society 19(1)
Introduction
Prisoners at the end of life often wish to spend their last days in the community
(Byock, 2002; Linder and Meyers, 2007). For seriously ill and ageing prisoners,1
legal regulations are in place to interrupt their sentence or to release them early
from prison2 (Chiu, 2010; Russell, 1993). These regulations were founded on a
humanitarian concern for the dying and for practical reasons such as high costs
or the inability to care adequately for such persons in prison (Dubler, 1998).
Despite the availability of legal provisions that support the expressed wishes of
prisoners to die outside prison, inmates at the end of life are rarely released (Beck,
1999; Williams et al., 2011).
The failure to implement compassionate release policies could further influence
the current shift in prison demographics. First, the number of prisoners likely to die
during the course of their sentence, such as prisoners with life or indeterminate
sentences, is rising (Prison Reform Trust, 2013; Schneeberger Georgescu, 2009).
This is especially true in the European context because of the abolishment of the
death penalty (Newcomen, 2005). And second, the proportion of ageing prisoners
is increasing at such a rate, it has prompted researchers in the United States to call
it an ‘ageing crisis’ (Maschi et al., 2013; Williams et al., 2012). Similarly in England
and Wales, prisoners aged 60 years and over are the fastest growing group, dou-
bling in size from 2002 to 2011 (Prison Reform Trust, 2013). With the proportion
of prisoners aged 50 years and older increasing 5.2% in one year alone to now
representing around 12% of the prison population (Berman and Dar, 2013). In
Switzerland, the number of prisoners aged 50 years and older has more than
doubled from 2003 (n ¼ 296) to 2014 (n ¼ 664) (Bundesamt fu¨r Statistik, 2014).
Schneeberger (2009) found that this increase was due to a rise in the number of
prisoners serving indeterminate sentences and ageing in prison rather than an
increase in ageing persons committing criminal offences.
Studies of prisoners’ views about death and dying in prison have commonly
found that prisoners are fearful of dying in prison (Aday, 2006; Deaton et al., 2009;
Linder and Meyers, 2007; Loeb et al., 2014). Concerns related to inadequate care at
the end of life, regrets about the inability to see their family and loved ones, and the
perception that dying in prison has a stigma attached to it, not only for them but
also for their family. Taken together, the research showed that it was the place of
death that was important to the prisoners. The significance of not wanting to die in
prison was underscored by the finding that a greater proportion of prisoners would
be more likely to accept life-prolonging treatment if they would receive parole
(Phillips et al., 2011).
Prison is generally deemed unsuitable for compassionate end-of-life care due to
its punitive nature (Mahon, 1999). The prison environment is viewed as a major
stressor for older adults (Maschi et al., 2015), making the fear of dying there more
prominent. While end-of-life care exists in some prisons, it is not standard clinical
care (Williams et al., 2011). Even if the prison successfully provides this care, it is
not without its own challenges (Dubler, 1998). Indeed, end-of-life care for prisoners
is often rendered difficult by the restrictive environment and opposing goals of
Handtke et al.
7
providing care versus ensuring security (Mahon, 1999). Finally, the provision of
end-of-life care in prisons and compassionate release are not mutually exclusive.
That is, even if end-of-life care is provided, compassionate release should still be
regarded as an alternative, possibly even as a human rights-based obligation, to
grant a death with dignity (Newcomen, 2005). Accordingly, the need for release
processes that facilitate end-of-life prisoner care has been highlighted by investiga-
tors (Dubler, 1998; Granse, 2003; Williams et al., 2011).
The wishes of prisoners to be released at the end of life are often not respected
because they appear at odds with the goals of punishment (Berry, 2009). However,
the release of prisoners towards the end of their lives could offset the high costs
incurred when caring for the dying within the ill-equipped prison system (Berry,
2009; Dubler, 1998; Elger et al., 2002). Currently, few seriously ill or ageing pris-
oners have been considered for early release on compassionate grounds contained
within their legislative provisions (Beck, 1999; Reimeringer and Gautier, 2012;
Williams et al., 2011). Reasons include the lengthy and complicated administrative
process, flaws in the medical criteria (Chiu, 2010; Williams et al., 2011), and the
influence of negative public opinion and the political climate (Greifinger, 1999;
O’Meara, 2010). Despite these challenges the Council of Europe supports the
wide application of early release for seriously ill, aged prisoners on compassionate
grounds except in cases where the prisoner still represents a substantial risk for
society (Council of Europe, 1982).
Study purpose
While prisoners’ wishes might often be to die outside prison, their views and expect-
ations in relation to compassionate release provisions available to them in the
legislation have not been investigated. It may be that a particular group of pris-
oners might wish to die in prison if they consider it their home and fellow inmates
and staff as their family (Ginn, 2012), suggesting the need to carefully evaluate a
prisoner’s expressed wishes on a case-by-case basis. Central to this debate are the
views of the ageing prisoners. To date, no study has investigated the question of
compassionate release from the perspective of older prisoners. The goals of this
study were threefold: (a) to present the opinions of ageing prisoners in Switzerland
on compassionate release; (b) to frame their arguments for and against the topic
using Garland’s (1996) two criminologies of the self and the other, notable as it
underpins the low uptake of compassionate release provisions; and (c) to propose a
middle-way solution based on Garland’s welfarist criminology supported by
European human rights.
Garland’s strategies of crime control
Garland’s (1996) criminology of the self and criminology of the other makes a dis-
tinction between two types of crime control: the preventive strategy and the puni-
tive strategy. He describes the punitive strategy as prevailing, which is supported
8
Punishment & Society 19(1)
by penal populism. This may provide some explanation for the recent mass incar-
cerations occurring particularly in the United Kingdom and the United States
(Garland, 1996, 2001). The influence of rising penal populism has been criticised
by other researchers (Lacey, 2008; Tonry, 2007). While Garland acknowledges that
the United States is disproportionally affected by such a punitive model (Garland,
2013), there have been descriptions of these trends in European jurisdictions
(Downes and Van Swaaningen, 2007; Wacquant, 2001). An example of this
could be the restricted use of compassionate release (Prisons and Probation
Ombudsman for England and Wales, 2013; Reimeringer and Gautier, 2012;
Williams et al., 2011). While Garland explains penal populism as an attempt to
reassert sovereign power, Wacquant (2009a) presents a more comprehensive view.
For him, the penal state is mostly the result of economic deregulation mandated by
neoliberalism with an emphasis on ‘individual responsibility’. At the same time
social welfare is reduced and subsequently solidarity is diminished. This creates
social insecurity that disproportionally affects the poor and the marginalised,
whose infractions are harshly punished as an...
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