Retired Honolulu lawyer Bob Merce has worked for years to win the freedom of prison inmates with terminal illnesses so they don’t have to die inside.

His success stories include a young woman with a fast-growing brain tumor in prison for drug offenses, who was released to a care home shortly before she died. Another was a Vietnam veteran with multiple sclerosis who served more than 30 years in prison for murder before he was moved to Tripler Army Medical Center.

Until now Merce has usually had to navigate Hawaiʻi’s prison and healthcare bureaucracies alone, but this year he suddenly acquired some influential allies.

Major players in the state correctional system are joining forces to push for a new law to simplify and codify a system known as “compassionate release” for sick and disabled prisoners that would simplify Merce’s efforts.

Top executives in the state prison system, the Hawaiʻi Paroling Authority and the Hawaiʻi Correctional Systems Oversight Commission are developing a bill for the Legislature to consider that would make it easier to move terminally ill inmates into hospice or long-term care facilities.

“I think it’s important for us as a society — when we can — to allow people to die with care and with humanity,” said Christin Johnson, coordinator of the oversight commission. Apart from showing compassion, she said, the correctional system would benefit in tangible ways.

The bill would save the state “an incredible amount of money,” Johnson said, because prisoners with complex health problems require expensive health care. Behind bars, that cost is entirely borne by the Hawaiʻi correctional system, while the federal Medicaid program helps pay for care in community settings.

Extremely ill inmates also strain short-staffed medical units in Hawaiʻi’ prisons and jails, Johnson said. When the system moves those people out of prison and into care homes, hospitals or hospice, that frees up the prison medical staff to care for other patients.

“This is about looking at our most sickly and aged population, our kūpuna, and saying ‘Is there a better way for you to die with dignity and die with compassion?’ ” she said. “Because dying in prison is not dying with dignity or compassion.”

As of mid-September, the Hawaiʻi Department of Corrections and Rehabilitation was holding 996 men and women age 50 or older, including more than 80 inmates who are at least 70, according to the draft bill.

A Single Case Becomes A Mission

Merce began his work on the compassionate release issue by helping one of Hawaiʻi’s most infamous inmates, Delbert Wakinekona, an elderly prisoner serving a life sentence for murder for his part in a 1970 robbery that caused the death of a Honolulu store owner.

He also had convictions for escape, rape and robbery in separate cases, and as a young man was classified as a maximum security risk. He was shipped off to Folsom Prison in California, and went on to serve decades of his sentence in mainland prisons.

Merce agreed to help Wakinekona at the request of another lawyer, and later learned Wakinekona was dying of advanced liver disease. Merce petitioned two governors to try to win release for Wakinekona, but those requests were refused.

He finally managed to have Wakinekona freed in the fall of 2011 after a doctor testified before the Hawaiʻi Paroling Authority that Wakinekona had just days or weeks to live. In fact, Wakinekona survived 26 months after he was released at age 67. He had served 41 years in prison, and in his final years he married and got to know his grandchildren, Merce said.

Word of Wakinekona’s release spread within the prison system, and “within a short time my phone started ringing,” Merce said. The calls were from inmates suffering from lung cancer, liver disease and other conditions, and they were asking for help.

Merce, who was retired, decided that “I guess this is what I’m supposed to do, and I started doing it, and I’ve been doing it ever since.”

The prison system had no formal compassionate release policy, Merce said, when he began work on the Wakinekona case. Wakinekona was freed based on a provision in the paroling authority’s rules that says an inmate can be freed when death is “imminent.”

After the Wakinekona case Merce began working with prison officials to develop policies and procedures for compassionate release that were finally adopted, but he believes compassionate release needs to be enshrined in state law to ensure the releases are made consistently when inmates qualify.

“We feel very strongly that it doesn’t matter who you are or what you did, if you go before the parole board and they find that you are not a danger to society, and you meet the criteria for release, then you should be released,” Merce said.

He added: “You’re on parole, and you’re being supervised, but it at least allows you to die with dignity, and most of these people are going to die within a short time.”

A Bill That Failed Three Times

It may be difficult to win passage of the compassionate release measure.

Lawmakers rejected similar bills in 2013, 2014 and 2023. The Legislature passed another version of the bill in 2019, only to have then-Gov. David Ige veto the measure. Ige cited concerns that prison medical staffs might become overburdened with requests for release.

This year some key members of the Legislature have shown interest in the compassionate release issue.

The House Public Safety Committee held a public briefing on compassionate release on Oct. 6, and House Judiciary and Hawaiian Affairs Committee Chair David Tarnas told Civil Beat he is “very interested” in trying to move a bill.

“It’s a critical issue,” Tarnas said. “It’s becoming more serious every day as our inmate population ages, and we are not set up in our correctional facilities to handle these end-of-life situations.”

The latest draft of the bill says prisoners may be considered for compassionate release if they have a terminal illness or a debilitating, chronic or irreversible condition, or have become “too ill or cognitively impaired to participate in rehabilitation or to be aware of punishment.”

Prisoners can also qualify if they have a condition that requires complex treatment or a level of care that the corrections department is unable to provide on a long-term basis, or if they would “otherwise be more appropriately managed in a community setting.” Those requirements are similar to the prison system’s existing medical release policy.

The bill also requires the department to promptly identify prisoners who meet that criteria, and assist them with applying for compassionate release. The paroling authority would hold a hearing to decide on each application based on eligibility and possible risk to public safety.

“Nobody is being automatically released — nobody,” Johnson said. “Just because they’re eligible, that means they just can apply for it.”

The paroling authority would also supervise the inmates who are granted compassionate release.

People who qualify for compassionate release slip through the cracks, meaning they languish and even die in prison.”

Molly Crane, Families for Justice Reform

The bill likely would increase the number of applications for compassionate release because it would allow lawyers or other representatives to file applications on behalf of inmates. The current policy allows only physicians employed by the prison system to recommend medical releases to the parole authority.

Supporters say the measure would not pose any threat to public safety, citing research showing older prisoners are the least dangerous group of inmates. Federal research on recidivism shows re-arrest rates drop dramatically for older inmates who have been released.

Molly Crane, a lawyer with the nonprofit Families for Justice Reform in Washington, D.C., said Hawaiʻi is the only state in the nation that does not have a compassionate release law on the books.

The existing system in Hawaiʻi is complex, burdensome and lengthy to navigate, Crane said, which is a problem when dealing with time-sensitive end-of-life cases.

“This means that people who qualify for compassionate release slip through the cracks, meaning they languish and even die in prison,” she said.

Tommy Johnson, director of the Department of Corrections and Rehabilitation, said the department’s current medical release policies and procedures are working, but he worked with advocates to help write the proposed new law.

He supports most of the proposed bill, but has asked that it be revised to exclude inmates who are serving mandatory minimum sentences or sentences of life without the possibility of parole.

Johnson said other state laws would need to be changed before the compassionate release provisions could apply to inmates serving mandatory minimum terms imposed by the courts.

He also believes granting compassionate release for inmates serving life sentences without the possibility of parole “directly goes against the governor’s power and authority vested with him when it comes to pardons and commutation in the (state) constitution.”

Currently, he said, the paroling authority cannot release those inmates unless the governor grants pardons or commutes those sentences.

Finding Beds In Care Homes

Another pressing issue is where to send prisoners who win compassionate release. The paroling authority will not set a release date until inmates have somewhere to go.

Merce said he tried to win release for dozens of terminally ill inmates over the years, but was only able to help about 10 of them to actually get out because it is so difficult to find care homes, hospitals or hospice facilities that would accept them. The others died inside.

Crane told Civil Beat there are strategies to address that problem. For example, one nursing home company with facilities in multiple states has negotiated higher Medicaid payments for accepting “difficult-to-place” residents, including former inmates.

Cook County, Illinois passed a law prohibiting nursing homes from considering convictions that are more than three years old, she said. When care homes do look at convictions, Crane said, they are required to conduct individual assessments on applicants.

Crane said other states have already adopted compassionate release statutes because they address issues of dignity, fiscal responsibility and public safety.

While there may be disagreements about specific components of the laws, in general, she said, “this is something that pretty much everyone can agree on.”

Read the latest draft of the compassionate release legislation: