For decades, California’s "Compassionate
Release" program was widely considered a failure. Incarcerated people with
terminal illnesses or permanent incapacitation often died while waiting for the
California Department of Corrections and Rehabilitation (CDCR) to process their
paperwork. Between 2015 and 2021, nearly a third of all applicants died before
they could even reach a judge.
However, the legal landscape in 2026
has fundamentally shifted. Through the implementation of AB 960 (Penal Code
§ 1172.2) and the clarifying precedent of In re Hoze, California has
finally created a "safety valve" that prioritizes human dignity and
medical reality over rigid sentencing.
In the landmark
case In re Hoze (2021), the
California Court of Appeal addressed a critical bottleneck in the Elderly Parole Program (PC § 3055):
the treatment of "Thompson Terms," or consecutive sentences for
crimes committed while in prison. The court ruled that when the Board of Parole
Hearings (BPH) determines an elderly inmate is suitable for parole, that
finding applies to the individual's entire period of incarceration, effectively
superseding the requirement to serve additional consecutive time for in-prison
conduct. This decision transformed the Elderly Parole Program from a partial
remedy into a meaningful pathway for release, ensuring that elderly individuals
deemed a low risk to public safety are not kept behind bars on technical
sentencing "stacking" that contradicts the rehabilitative and
compassionate intent of the law.
The
Power of the Presumption: AB 960 (PC § 1172.2)
The most revolutionary aspect of AB
960 is the mandatory presumption of release. Under the old law, the CDCR
Secretary had the power to block a referral before it ever reached a courtroom.
Now, the law requires that if a Chief Medical Executive (CME) finds an inmate
meets the medical criteria, the case must be referred to the sentencing
court.
Once in court, the burden of proof
flips. The judge must grant the recall and resentencing unless the
District Attorney can prove that the individual poses an "unreasonable
risk of danger of committing a Super Strike felony."
Key takeaway: A "Super Strike" is a very narrow list of violent
crimes (like murder or certain sex offenses). Most elderly or medically
incapacitated inmates—even those with high-level original convictions—simply do
not possess the physical ability to commit these specific acts, making the DA's
burden almost impossible to meet in many cases.
The
"Hoze" Factor: Overcoming the Consecutive Sentence Barrier
One of the most significant hurdles
for elderly parole candidates has been the "Thompson Term"—a
consecutive sentence for a crime committed while in prison (such as possession
of a weapon). For years, the Board of Parole Hearings (BPH) would find an
inmate "suitable" for parole under the Elderly Parole Program (PC
§ 3055), only to tell them they had to stay in prison for another five
years to serve their in-prison offense.
The landmark case In re Hoze
(2021), followed by subsequent 2024-2025 appellate clarifications, changed
this. The court ruled that the Elderly Parole Program was intended to bring
immediate relief. When the BPH finds a person suitable for elderly parole, that
suitability finding overrides the requirement to serve a consecutive
Thompson Term.
This is a vital "hook"--->: If an inmate is old enough or sick enough to be paroled, they
are too old or too sick for their "consecutive" past to keep them in
a cage.
Countering
the Opposition: Arguments to Favor Compassionate Release
When a District Attorney (DA)
opposes a compassionate release referral, they typically rely on two arguments:
"Public Safety" and "Truth in Sentencing." Here is how to
legally dismantle those claims:
1.
The "Recidivism is Science" Argument
DAs often point to the nature of the
original crime to argue the person is dangerous.
- The Counter:
Under AB 960, the court is legally required to look at the current
physical and mental condition of the person. If an individual requires
assistance with "Activities of Daily Living" (bathing, dressing,
toileting), they are statistically and physically incapable of recidivism.
In fact, federal data shows the recidivism rate for compassionate releases
is roughly 3.5%, compared to nearly 40% for the general population. NOTE: [The
3.5% recidivism rate for
compassionate releasees was first officially documented in the 2013 OIG report, The Federal Bureau of Prisons'
Compassionate Release Program]
2.
The "Constitutional Duty" Argument
DAs may argue that release is a
"gut punch" to victims and violates the original intent of the
sentence.
- The Counter:
The U.S. Supreme Court ruled in Brown v. Plata that California
cannot ignore the medical needs of prisoners. Incarcerating a dying person
who requires 24-hour care is not "justice"—it is a violation of
the Eighth Amendment's ban on cruel and unusual punishment.
Compassionate release is a constitutional necessity, not a
"loophole."
3.
The "Fiscal Responsibility" Argument
When
the District Attorneys argue that the cost of incarceration should not
influence justice, they ignore a fundamental reality of public governance: Every dollar spent guarding a
hospital bed is a dollar stolen from active public safety. In many cases, the state is spending over $150,000 per
year to keep a single medically incapacitated person in a prison infirmary.
- The Counter:
Releasing these individuals to community-based care or family custody
shifts the burden to more efficient systems (like Medicare) and frees up
resources for actual public safety initiatives.
Conclusion:
AB 960 is a mandate, not a
suggestion. By combining the medical
presumptions of the new law with the "immediate release" precedent of
In re Hoze, we can ensure that the "elderly and infirm" are no
longer the fastest-growing population in our prisons.
