N.J. Supreme Court clarifies when inmates can win compassionate release

Gravely ill inmates seeking freedom under the state’s new Compassionate Release Act don’t have to prove they are wholly, permanently physically incapacitated to get out of prison, the state Supreme Court unanimously ruled on Wednesday.

The case was the first test of the statute, which lawmakers enacted in February 2021 after repealing a 1997 compassionate release law that was so restrictive hardly anyone used it.

In broadening the pool of people eligible to seek compassionate release, legislators last year decreed that parole-ineligible inmates who suffer from a “permanent physical incapacity” can apply for release, not just those with a terminal medical diagnosis, as the previous law required.

But debate arose over how “permanent physical incapacity” should be defined, after an ill inmate from Essex County identified as F.E.D. in court records challenged his continued incarceration.

Now 73, F.E.D. has been imprisoned since 1980 for three murders, with no parole eligibility until 2040, according to court documents.

Last year, a physician working for the state Department of Corrections submitted a compassionate release petition for F.E.D. because he had several cardiac conditions that slowed his ability to perform activities of basic daily living, according to Wednesday’s opinion.

But a trial court rejected the bid, saying he didn’t show he was wholly incapable of performing any daily basic living activities. An appeals court agreed.

F.E.D. argued that under those interpretations of the state law, only “comatose individuals” would qualify for release.

Justice Anne Patterson, writing for the state Supreme Court, agreed with F.E.D., saying compassionate release applicants need only show that they can’t perform two or more — not all — activities of daily living, necessitating 24-hour care.

“If the statute demanded a showing that, by virtue of the inmate’s medical condition, he is incapable of eating, walking, bathing, dressing, using a toilet, and getting in and out of bed, compassionate release would be granted rarely, if at all,” Patterson wrote.

Still, Patterson affirmed lower courts’ refusal to grant F.E.D.’s request for release, saying he failed to demonstrate he is permanently, physically incapable of two or more activities of basic daily living. Physicians noted only that he had a “diminished” ability to perform daily living activities and would eventually need assistance if released, Patterson wrote.

Attorney Alexander Shalom, who argued the case before the Supreme Court for the American Civil Liberties Union of New Jersey, celebrated the ruling’s broader implications.

“The Appellate Division had interpreted the statute in such a narrow way that no one really would qualify other than someone who was totally comatose, and so it’s terrific that the Supreme Court took the logical and reasonable interpretation of the statute and took the Legislature at their word that what they were trying to do is expand access to this form of compassionate release,” Shalom said.

The 2021 law also requires compassionate release applicants to show, if they meet the bar proving physical incapacity, that they would pose no risk to public safety if released. But in F.E.D.’s case, that issue becomes irrelevant because he didn’t prove his physical incapacity, Patterson wrote.

One of the goals of compassionate release is to reduce the financial burden on the state of geriatric inmates’ costly health care. A 2018 study by the Pew Charitable Trusts found that state and federal prison populations were graying, sending care costs surging.

In March, NJ Spotlight found more than 500 inmates in New Jersey are age 65 or older, but they’re rarely granted parole or compassionate release.