Compassionate Release

Compassionate release in California refers to the process by which incarcerated individuals may be granted early release from prison due to serious health conditions, age, or other extenuating circumstances that make their continued incarceration inhumane or impractical. The idea behind compassionate release is to allow individuals to be released if their condition or situation no longer justifies their imprisonment, especially when they are unlikely to pose a threat to public safety.

Assembly Bill 960 (2021-2022 Reg. Sess.), became law January 1, 2023. It amended and renumbered the compassionate release statute from Penal Code section 1170, subdivision (e), to section 1172.2. Section 1172.2 now requires CDCR to make a recommendation for the recall or resentencing of an incarcerated person if the incarcerated person has a serious and advances illness with an end-of-life trajectory, or who is found to be permanently medically incapacitated.

This statutory framework also applies to individuals determined to be “permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living, including, but not limited to, bathing, eating, dressing, toileting, transferring, and ambulation, or has progressive end-stage dementia, and that incapacitation did not exist at the time of the original sentencing.” (Cal. Penal Code section 1172.2(b)(2).)

The statute creates a "presumption favoring recall and resentencing. . . which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety." The statute defines "unreasonable risk of danger to public safety" by reference to the term's definition in section 1170.18, subdivision (c), and is "based on the incarcerated person's current physical and mental condition." (Pen. Code section 1172.2, subd. (b).) Meaning that the statute (since January 2023) requires courts to consider the compassionate release candidate as he or she is now and not as they were at the time of the crime.

I handled a compassionate release petition last year and I thought it was a rewarding experience. If you have questions about the process feel free to send me an email and we can set up a meeting. Davis@dwhlo.com.