How OITNB Flubbed Compassionate Release

[WARNING: SPOILERS] The hit Netflix series Orange is the New Black regularly confronts uncomfortable subjects like race, gender, discrimination, sexuality, and poverty. Episode seven of the new season introduced another highly charged but little-talked-about theme into the mix: the increasing number of elderly inmates in the U.S. prison system and the premise of compassionate release.

In the new season, Jimmy, a member of the “Golden Girls” inmate clique, starts showing signs of dementia or early-stage Alzheimer’s disease. She stares off into space for long periods of time, and when she is semi-lucid, she believes that it is the early 1960s. She has conversations with people who are not there, including her husband, and thinks Piper is a friend from her past named Roberta. Eventually Jimmy breaks her arm by leaping off a stage (believing she is diving into an imaginary swimming pool), and the warden can no longer ignore the situation.

The next morning, a highly distraught Jimmy is loaded into a van and driven out of the prison. Piper, who is watching from the yard, asks another inmate if they guards are taking Jimmy to a facility where she can receive the help she needs. The other inmate replies that no, they’re dropping Jimmy off at the bus stop. Jimmy has no family and no friends, she adds.

“So she’s out on the street?” Piper asks. “It’s called compassionate release,” the other inmate says, her voice cracking as she makes the sign of the cross.

The episode ends on that grim note.

Many Orange is the New Black fans found this scene to be particularly distressing. How can they just turn Jimmy out like that? Is it even legal? Jimmy’s circumstances, in fact, are not out of the ordinary for many elderly inmates.

“People with advanced dementia can live for a very long time with profound frailty and cognitive disability,” says Brie Williams, an associate professor of medicine at the University of California, San Francisco. “They may not even now they are in prison or being punished.”

And, as it turns out, compassionate release (PDF) is a legitimate practice carried out by the U.S. Federal Bureau of Prisons. But the show’s portrayal of how it works—not surprisingly—is probably exaggerated for dramatic effect.

Compassionate release was introduced as a federal statute in the 1980s, primarily as a way to deal with rapidly aging prison populations, overcrowding, and rising healthcare costs. The practice allows some prisoners who do not have much time left—including those who suffer from a terminal illness and have less than 18 months to live, those who have a debilitating medical condition like Alzheimer’s, or those who are elderly—to apply for and potentially gain release from prison. Compassionate release programs save prisons money, but there are also ethical arguments to support the practice.

“It’s important for all of us to remember that convicted criminals are sent to prison as punishment—not for punishment,” says Ira Byock, a palliative care physician at the Geisel School of Medicine at Dartmouth College, and author of The Best Care Possible. “People who are severely debilitated or are in the midst of dying are usually no longer a threat to society, and there is not a compelling social advantage to keeping them in prison.”

But sick and elderly prisoners don’t just get booted out to the bus stop like Jimmy—the process of applying for compassionate release is quite lengthy. In federal prisons, the application requires the warden’s written recommendation, a pile of paperwork, and a 30-day progress report on the inmate’s condition and behavior. The Director of the Bureau of Prisons then reviews the case and, if it is approved, contacts the U.S. Attorney in whichever district the inmate was originally sentenced.

Crucially, that application must also contain “release plans,” including details about the inmate’s post-release place of residence, how they will finance their life outside of prison (short as it may be), what social support is available to them and whether they will enroll in programs such as hospice. Jimmy, in other words, probably wouldn’t have been unceremoniously turned out onto the street to die.

The reality of compassionate release, however, isn’t entirely sunny. Some of the guidelines surrounding compassionate release are vague and subjective, containing conditions such as “whether release would minimize the severity of the offense.” And while most states have compassionate release programs, the rules and criteria for each are different. Additionally, some prisoners don’t even know the program exists, while others can’t navigate the application process on their own.

Some medical experts also argue that some of the criteria do not reflect the true nature of disease and suffering. Those who do manage to qualify and get through the paperwork, Williams adds, often “die before their case makes it through the long process.” There is no fast track for compassionate release.

So in actuality, the real problem with compassionate release is just the opposite of what Jimmy experienced: infirm inmates who do or should qualify for release are unjustly kept in prison, rather than being turned over to their families to care for them in their final days.

It is true that in some cases it might be better for the inmate to remain in prison rather than being released. Perhaps they have no family or friends outside of prison, or they have been behind bars for so long that they have come to see the prison population as their family. Some prisons do have hospice programs or even train inmates to deliver hospice care and take care of fellow inmates suffering from dementia (though those are probably the exception to the norm, Byock says).

As far as real-life Jimmys are concerned, however, while compassionate release isn’t a perfect system, nobody’s incarcerated grandmother is being dragged to the bus stop.