With his Type 2 diabetes unchecked, Donald Brown’s health deteriorated while serving time for armed robbery at Western Correctional Institution in Cumberland.
Vivian Penda said her son was a good person — intelligent, happy-go-lucky and mild-mannered. But at 15, he started using heroin and became wrapped up in addiction and petty crime, she said.
Thirty-five years into his sentence, Brown fell in the prison infirmary, fracturing a hip and suffering a brain bleed. He also endured a stroke. And doctors amputated his leg due to an infection.
In 2020, Penda applied for medical parole on his behalf, but her request was denied. With the help of Lila Meadows, a clinical faculty member at the University of Maryland Francis King Carey School of Law, the parole commission soon reversed its decision.
Brown was released from prison to a nursing home in Baltimore, where he died several days later. He was 68.
“There has to be a change in our justice system,” said Penda, 83, a retired human resources team leader who lives in Silver Spring. “We don’t have the right to just throw away a life.”
The system for granting prisoners compassionate release — a term that encompasses both medical and geriatric parole — is broken in Maryland, advocates say.
Between 2013-2022, the Maryland Parole Commission approved 149 people for medical parole but denied 464 others. The law and regulations conflict with each other. And though the legislature took away the governor’s power to overturn regular parole decisions for those serving life sentences, lawmakers did not do so for medical parole.
Meanwhile, the law for geriatric parole is so specific that virtually no one qualifies.
“There’s no denying it simply doesn’t work,” said T. Shekhinah Braveheart, advocacy associate at the Justice Policy Institute, a national nonprofit organization in Washington, D.C., that develops solutions to problems in the juvenile and criminal justice systems. The group released a policy brief in 2022 called, “Compassionate Release in Maryland: Recommendations for Improving Medical and Geriatric Parole.”
“There are too many infirm people inside — aging populations — to deny the obvious,” Braveheart added.
How does medical parole and geriatric parole work in Maryland?
Under Maryland law, people must be “so chronically debilitated or incapacitated” from a health condition, disease or syndrome that they are “physically incapable of presenting a danger to society” to qualify for medical parole.
The statute neither defines those terms nor gives examples of what conditions or diseases would meet that standard.
The Code of Maryland Regulations, though, states that people must be “imminently terminal” or have a condition for which “continued imprisonment would serve no useful purpose.” That’s along with specifying their release would not “unduly jeopardize public safety.”
People must apply for medical parole in writing. Anyone can submit a request.
The parole commission has to consider facts including medical information, prison record and circumstances of the crime.
Medical information includes how a prisoner scores on the Karnofsky Performance Scale Index, which measures functional impairment. Critics, though, assert the tool was designed to assess cancer patients and that the parole commission places an undue emphasis on the evaluation, which does not provide a full picture.
The legislature moved to remove the governor from the regular parole process for those serving life sentences in 2021 but did not change the language for medical parole.
When the Maryland House of Delegates considered a bill that would have done so, Minority Leader Jason Buckel, a Republican who represents Allegany County, introduced an amendment to exclude people convicted of first-degree murder from being eligible.
Then-Del. Chanel Branch, a Democrat who represented Baltimore, delivered an impassioned speech in favor of the amendment, noting that the man who murdered her son in 2017 has a heart problem.
Lawmakers adopted the amendment, and the bill ultimately did not become law.
For geriatric parole, people have to be 60 or older and must have served at least 15 years in prison. But they must have been sentenced under a law related to subsequent convictions for crimes of violence. Those include murder, rape and carjacking.
Seven people who are currently incarcerated in Maryland might meet the eligibility criteria for geriatric parole.
Families Against Mandatory Minimums, or FAMM, a national nonprofit organization in Washington, D.C., that advocates for fair and effective criminal justice policies, released report cards in 2022 grading compassionate release in each state.
Maryland received an F and an overall score of 16 out of 100, with the advocacy group noting that the state’s program suffers from internal inconsistency and incoherence. That’s worse than Pennsylvania (41 out of 100), Delaware (19 out of 100), Virginia (45 out of 100) and West Virginia (32 out of 100).
“It’s not the only state in this situation,” said Mary Price, general counsel of FAMM, “but it’s probably one of the most extreme examples.”
Lawyers who have been involved in medical parole cases in Maryland recounted instances in which the parole commission denied applications for clients with serious illnesses without explanation.
When Initia Lettau, chief of the Maryland Office of the Public Defender’s Post Conviction Defenders Division, went to a visit a man at Jessup Correctional Institution she was representing in a post-conviction proceeding, she recalled that he looked “absolutely dreadful.”
The man, she said, had a distended stomach and was vomiting.
She asked him if he’d been to the medical department. He reported that health care workers drew his blood several months earlier, but he had not received the results.
Later, Lettau said, doctors diagnosed the man with a form of cancer and performed surgery to remove a 47-pound tumor. The liposarcoma later returned. He underwent a second surgery, but the disease again came back.
His civil attorney, Samuel Morse, applied for medical parole. The parole commission denied the request.
“We were all pretty floored,” Lettau said.
“It was kind of crushing, because it’s bad enough he is in prison and is dying,” Lettau said. “It seems like beyond, I think, what the alleged goals are of incarceration for someone who doesn’t have a life sentence.”
Nancy Forster, a defense attorney in Towson, once represented a man with stage 4 liver cancer and applied for medical parole.
Forster said she provided the parole commission with his medical records, including doctor notes stating that he had incurable, end-stage cancer.
“And that still was not enough,” she said.
She said she’s not sure what the parole commission is looking for in these cases, particularly when people are at “death’s door.”
Later, Forster was able to get the support of Becky Feldman, then-chief of the Sentencing Review Unit in the Baltimore State’s Attorney’s Office. Audrey J.S. Carrión, administrative judge of Baltimore Circuit Court, cleared the way for the man’s release.
Maryland has ‘natural case study’ that shows ‘you can be bold on compassionate release’
Besides being humane, advocates said, reforming compassionate release in Maryland would save taxpayers money without jeopardizing public safety.
“You don’t go to prison for long-term care,” said Jene Traore, director of advocacy and legislative policy at the Maryland Prisoners’ Rights Coalition, which works to improve conditions for people who are incarcerated.
“They’re not equipped to handle this situation, and all they’re doing is burdening the system and creating a huge taxpayer expense that’s still going to come out of our pockets for the state of Maryland,” she added.
Maryland spent $7,280 per prisoner for health care costs in fiscal year 2015, according to a 2017 report from the Pew Charitable Trusts. That was an 11% increase from 2010.
In fiscal year 2019, 3,324 people incarcerated in state-run jails or prisons were 51 or older — more than 18.21% of the total population, according to an annual report from the Maryland Division of Correction, the latest publicly available online.
At the same time, Maryland has a “natural case study” on how people serving lengthy sentences can be released from prison without negatively affecting public safety, said Keith Wallington, director of advocacy for the Justice Policy Institute.
Wallington brought up those who have been released after serving decades in prison following the landmark 2012 opinion from the Maryland Court of Appeals, then the name of the state’s highest court, called Unger v. Maryland. Out of the 200 people released, only six — or 3% — have been reincarcerated.
“You can’t argue with the numbers,” Wallington said. “The case has been made.”
“It’s ironic that Maryland has one of the worst compassionate release programs in the country,” he later added, “but also the one case study in the country that shows you can be bold on compassionate release.”
‘We look at all the facts, and we obviously have to apply the law’
The state has one of the highest standards for medical parole, said David Blumberg, chairman of the Maryland Parole Commission. The governor has also overturned decisions in these cases — though Blumberg said he did not have exact figures.
The Karnofsky Performance Scale Index, he said, is helpful because the parole commissioners are not physicians. The score gives them “some kind of uniform data,” Blumberg said.
The parole commission, he said, also hears criticism from state’s attorneys and victims.
Blumberg said the parole commission was not involved in writing the current laws. He said he’s open to ideas on how to improve the system and believes change is needed.
“We look at all the facts, and we obviously have to apply the law. And that’s the beginning and end for us: where the statute takes us,” Blumberg said. “I know that doesn’t seem to make some people happy on both sides of the fence, I guess, but I feel we do a pretty good job with the information that we have to base our decisions on.”
Victims and their family members have a “number of problems and concerns” with efforts to change medical and geriatric parole, said Kurt Wolfgang, executive director of the Maryland Crime Victims’ Resource Center.
With early release programs, Wolfgang said, victims are forced to relive the worst moments of their lives if they believe that people should remain incarcerated.
“How much trauma do we put on the victims or family to be involved once again in a process?” Wolfgang asked.
‘It’s more humane. It’s more economical. And it is more attuned to the real public safety needs’
The Maryland General Assembly is considering legislation that would reform medical and geriatric parole.
Lawmakers introduced proposals in 2022 that did not pass. But advocates and legislators started meeting with stakeholders, including the parole commission, during the last session and reached a consensus.
The legislation would make several changes to medical parole, including:
- Defining the term “chronically debilitated or incapacitated”
- Making the state, upon request, pay one time for a physician to conduct an independent, in-person medical evaluation that the parole commission must give equal consideration
- Removing the requirement that parole commissioners consider the score on the Karnofsky Performance Scale Index
People who are 60 or older and have served at least 15 years in prison — except for sex offenders — would be considered every two years for geriatric parole.
State Sen. Shelly Hettleman, a Baltimore County Democrat and the lead sponsor of the bill in the Senate, said she’s cautiously optimistic because she tried to identify potential opponents and worked with major stakeholders to come to an agreement.
She thinks the legislation is logical and sensible.
“It’s more humane. It’s more economical. And it is more attuned to the real public safety needs,” Hettleman said. “I think it will go a long way to really addressing the needs of some of the most vulnerable people in our community who are behind bars and who are a significant economic burden to the state.”
Del. David Moon, a Democrat who represents Montgomery County, introduced the bill in the House.
Moon serves as vice chairman of the House Judiciary Committee, which is set on Tuesday to hold a hearing on the legislation. He said the policy arguments for changes have not gone away and the reforms are a mainstream idea.
Penda, whose son was initially denied medical parole, recalled how he had pleaded with her years earlier to not let him die in prison.
His younger brother, Dennis, was killed while incarcerated at Eastern Correctional Institution in 2002. Penda she said promised Brown that she would do everything in her power to make sure that did not happen.