One area of criminal law that is rarely discussed is how end of life issues are handled. For clients who become terminal while incarcerated, or for terminally ill clients who are facing charges, there are options you can pursue to gain compassionate release, and/or to preserve their right to die in peace and with their affairs in order.
Petitioning for compassionate release
Filing a motion for compassionate release is something that many clients don’t even consider, but you as their criminal lawyer should suggest. In many instances, for non-violent offenders who are terminally ill, compassionate release can be quietly granted. It is not as rare as you think, but neither is it as common as it should be. You do need to be very careful to make sure that the terminal diagnosis is confirmed before filing the motion. It is also recommended that you meet en camera with the prosecutor on the case to advise them of your plans to file first.
The right to die
Many prisons now host their own hospice units, but getting your client placed on one can be a challenge. The right to die with dignity while incarcerated is something that is only beginning to become an issue in the courts. While many people only associate this right with a motion for compassionate release, for long term prisoners the compassion comes from being able to die among the prison population, but with care and dignity. You have to petition the court to allow for an examination by a doctor in consultation with the prison’s doctors to have your client recommended to hospice care. Once they are recommended for hospice care they can be relocated to the unit in the prison if one exists. If one does not exist, arrangements can be made with the care team for hospice treatment on their unit.
Getting charges dismissed for the terminally ill
If your client is terminally and facing charges you can petition the court to dismiss the charges at the court’s discretion as a trial would be frivolous. This is usually only applicable if the prognosis is less than 3 months. If your client is terminally ill but has a longer prognosis, meet with the prosecutor and judge to discuss a plea to avoid court. If it is very important to the client that they die without a charge, then discuss the possibility of dismissal or a plea of no contest.