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As Prisoners Age,
Terminally Ill Raise Tough Questions
By Gary Fields, The Wall Street Journal
September 29, 2005
At the Menard Correctional Facility here, Gerald Johnson rests on a wooden desk that he built when he was stronger. His piercing eyes -- the color of his prison-issue blue shirt -- are one of the few reminders of the young criminal incarcerated in 1977 for participating in the murder of a prison guard. His cheeks are sunken and Mr. Johnson's bald head gives his 128-pound frame a gnome-like appearance. White gauze, spotted with blood, is taped to his forearm where an intravenous tube delivers chemicals to fight the cancer in his throat.
"I'm tired, I'm always tired," whispers Mr. Johnson, 58 years old, his voice box scarred by radiation therapy. "I just want to take my medication and go to bed."
Doctors say he has, at best, two years to live. Mr. Johnson has been denied parole 19 times by the state's prisoner review board. Now, his wife of eight years is urging the board to release him as an act of compassion, saying she wants her husband to come home "to die in peace."
Mr. Johnson's case and others like it are raising difficult questions about the nature of criminal justice: Should terminally ill prisoners be released as an act of compassion when they're no longer a threat to society? Or does the principle of serving time, regardless of circumstances, trump these considerations?
These requests are becoming increasingly common as the nation's prison population ages. Over the past decade, the number of sentenced inmates over the age of 45 has grown three times faster than the general prison population, according to Department of Justice figures, driven by a nationwide tough-on-crime attitude and the rise of lengthy mandatory sentences. The result: In 2003, prisoners 45 and over accounted for 17.8% of sentenced inmates, up from 13% in 1995.
Consequently, the number of inmates dying behind bars is rising. As a general rule, prisoners die younger than citizens in the outside world. Inmates arrive at prison 15 years older medically than their chronological age, according to the American Correctional Association. That's because they often come from poverty-stricken backgrounds where preventive health care isn't common.
Hospice and prisoner advocacy groups estimate that about 100 inmates are let out annually under some form of "compassionate release" program relating to ill-health. It's not clear how that number has changed recently. Many states exclude from these programs inmates who have committed violent or sex crimes. Other requests are rejected if prison officials aren't satisfied that inmates will receive adequate care.
Getting a "terminally ill" diagnosis can be the toughest part of the process, since it's hard to predict when someone will die. Nona Clark, for example, died in a California prison this summer after authorities told her in a letter that her colon cancer -- initially misdiagnosed as hemorrhoids -- was in remission. Ms. Clark, 48, was imprisoned for stabbing her husband.
Complicating matters, inmate health-care costs have become a growing problem for states, rising 42% last year to $3.7 billion, according to the American Correctional Association. Prisons are required to provide for critically and terminally ill inmates. Some states have even developed hospice programs, designed for inmates expected to die within six months.
Difficult Decisions
Washington state releases some prisoners with serious medical conditions, whether terminal or not, in part by looking at these financial dynamics. "We'll release somebody to the outside if so doing will save the state a significant amount of money and it is safe to do so," says Mark Stern, director of medical services for the Washington State Department of Corrections. The inmate's sentence also plays a part in the determination. Making these decisions, Mr. Stern says, is "difficult emotionally."
In Illinois, the state's Prisoner Review Board determines whether an inmate can be released. A second option is clemency from the governor. Unlike some states, Illinois isn't barred from releasing inmates because of the particulars of their crime.
Many of the state's violent prisoners are housed at Menard, perched on the edge of the Mississippi River about 60 miles from St. Louis in the southwest corner of the state. At a time when many modern prisons resemble junior-high schools with cells and are equipped with electronic monitoring devices, Menard is a reminder of older penal practices. Built in 1878, it is Illinois's oldest working prison. The warden's office is 10 paces from the entrance to the cellblocks.
Menard housed inmates awaiting execution until 2003 when Illinois's then-governor granted clemency to all death-row prisoners after 13 were exonerated. Even without death row, its 3,000 inmates are among the state's toughest.
Mr. Johnson grew up in northern Illinois the fifth of 12 children. His father died in a car accident when he was 10 and his mother remarried. He has been in Menard since Feb. 8, 1979. The prison guards and staff say he has been a model prisoner. It's been nearly eight years since he received a reprimand for violating prison rules. In 1997 he failed to take his prison ID to the chow hall. Older infractions include stealing a sweet roll.
Mr. Johnson came to prison with an eighth-grade education and studied to get a GED -- the equivalent of a high-school diploma -- while also pursuing vocational training such as leatherwork and carpentry. He built numerous pieces of furniture that are used in the prison. Along with other inmates, he made a giant wooden map of Illinois, which hangs across from the warden's office. He crafted many of the belts worn by the prison guards.
But some of the officers cringe at talk of Mr. Johnson's crime. In early 1977, Mr. Johnson, then 29, held up a bar with a friend. That landed Mr. Johnson in Lee County jail, about 350 miles north of here.
The crime that brought him to Menard took place on May 9, 1977. It started as an escape attempt by Mr. Johnson and Chester Sanders, another inmate. The door to Mr. Sanders's cell hadn't been closing properly. The prisoners knew the sheriff's deputy on duty would have to come inside the cellblock to lock it. Normally, the officer could stand outside and lock the cells by throwing a lever. The plan was to overpower the guard and tie him up with a rope the prisoners had braided from torn bed sheets, according to court records.
At 10 p.m., as the inmates predicted, Deputy Richard Bert Fordham came in to lock the cell. Mr. Sanders met the guard in the hallway, tossed soap in his face and set upon him. Mr. Johnson, who was hiding in the shower, soon joined in, and the prisoners used the deputy's keys to beat him, court records say.
Mr. Johnson started to break windows to look for a way out while Mr. Sanders rushed back to his cell to get the makeshift rope, which he used to tie up the deputy. Mr. Fordham died on the floor of the hallway gagged and bound. The men stopped the escape when they noticed the deputy wasn't moving. An autopsy showed Mr. Fordham died from asphyxiation from the rope tied around his throat.
The deputy, who was 39 years old, had retired from the U.S. Navy the year earlier as a chief petty officer. He left behind a widow, three sons and two daughters and remains the only Lee County, Ill., deputy killed in the line of duty. His murder came two days after he attended his oldest son's wedding.
Appeal Rejected
In September 1977, Mr. Johnson pleaded guilty to aiding and abetting in a crime that led to a murder and was sentenced to 45 to 100 years. He later appealed, arguing he didn't know the plea would be linked to the officer's death rather than the escape attempt. The appeal was rejected. Mr. Sanders received the same sentence.
Nearly three decades later, news that Mr. Johnson is seeking a release on medical grounds has "caused all of us to reflect," says Marty Fordham, the deputy's son and himself a Navy veteran. Mr. Fordham says his family believes Mr. Johnson's terminal illness should have no bearing on whether he should be freed.
"He had his day in court, the judge ruled and he got his sentence. He should serve that sentence," Mr. Fordham says.
Mr. Johnson says he thinks about Deputy Fordham everyday. "I can't help but think of him," he says. "Whenever I look at one of [the officers], I think of him." He says he didn't intend for the deputy to die but he accepts responsibility for his role. "I can't change what happened then. All I can do now is do the best that I can to live right now."
His medical problems began one morning in August 2004 when he found a lump on the right side of his neck as he shaved. Medical staff at the prison infirmary gave him Tylenol and antibiotics. Six months later, after the lump had begun to grow, he was given a biopsy. It came back positive: stage IV metastatic squamous cell carcinoma of the neck. It was a worrying diagnosis, but not one that was thought to be fatal.
As doctors began treating him with radiation and chemotherapy, his attorney, Shaena Fazal, began trying to get him released. Ms. Fazal is executive director of the Long-Term Prisoner Policy Project, an advocacy group serving the growing number of Illinois prisoners with life sentences. By this time, Mr. Johnson had been married to his wife Arlene for seven years. A data-entry processor for a St. Louis company, she was accompanying a former co-worker to Menard when she met Mr. Johnson. The two struck up a friendship and a correspondence. They married on Aug. 31, 1997, in the prison visiting room.
These days, Ms. Johnson, 49, carries with her bound books containing transcripts from her husband's various court hearings. She sets a mental clock to his schedule. On a Monday morning a few weeks ago, she remarked: "They left the prison early this morning. He won't be back until late this afternoon." She's referring to Mr. Johnson's weekly trip to a private clinic in Granite City, a 90-minute drive from the prison. For nearly eight hours, his veins are flushed with chemicals designed to flow through his bloodstream and fight off the cancerous cells attacking his body.
Medical Costs
Mr. Johnson's pricey treatment comes out of the Illinois Department of Corrections' medical budget. The department's medical costs have risen more than 50% to $101.5 million as of Aug. 26, the latest available data, compared with $66.8 million in 2000.
Director Roger Walker Jr. won't discuss Mr. Johnson's case. In general, he says, the prison system's health-care coverage is in line with the cost of health care in the state.
Because Mr. Johnson was sentenced in the 1970s, before many mandatory sentencing guidelines came into effect, he regularly comes up for parole review. Before appealing to a hearing earlier this year, he had been rejected 17 times because of the severity of his crime. His attorney, Ms. Fazal has made the case in various petitions that if Mr. Johnson had been sentenced under modern formulas, he'd be out of prison by now.
On March 10, the Prisoner Review Board voted 12-2 against granting parole, giving greater weight to Mr. Johnson's crime than to his subsequent behavior. Although Mr. Johnson had been diagnosed by the time the panel voted, the board member handling his review forgot to raise it at the hearing, according to the board's records. The board is made up of lawyers, law-enforcement officials, politicians and business leaders.
Ms. Fazal petitioned the panel for a rehearing, this time specifically requesting Mr. Johnson be released because of his medical condition. Without this new information, he would have had to wait a year for a regular hearing. Mr. Johnson's application included supportive letters from his correctional vocational instructor and family members. Also enclosed: a terse two sentence statement from Abid Nisar, a doctor of hematology and oncology in Granite City, who said Mr. Johnson was "currently receiving Chemotherapy and Radiation. His prognosis is poor."
Craig Findley, a board member and former newspaper publisher, visited Mr. Johnson at Menard and talked with the staff, standard procedure in these circumstances. "Mr. Johnson's life would certainly be more comfortable if he were able to die at home," Mr. Findley recalls being told by the doctor, who declined to comment on his patient. Ms. Johnson says she isn't sure if her company's insurance coverage would cover her husband. If it doesn't, his bills would probably be paid by the government.
Mr. Johnson found an unexpected ally in Jorge Montes, the current chairman of the Prisoner Review Board. Mr. Montes is a former supervising litigation attorney for the Cook County State's Attorney's Office and former spokesman for the Office of the
Illinois Attorney General.
"I'm not a softie. I come from a conservative Christian background. But I think that Mr. Johnson and cases like Mr. Johnson warrant another review," says Mr. Montes, who in years past had voted against releasing him. The board chairman says it was Mr. Johnson's illness that got him another shot. The inmate's attorney called "and said we'd like to bring out the fact that he has cancer and is dying," Mr. Montes recalls.
At the new hearing in July, Mr. Findley reported that the inmate was an excellent candidate for parole because of his ailing health and his record during 27 years in prison. He passed around summaries of the inmate's medical condition. While acknowledging the seriousness of the crime, Mr. Findley recalls adding: "he's going to die." He also told the panel that the inmate's treatment was coming at "significant expense to the Illinois Department of Correction."
Opponents of parole on the panel conceded that Mr. Johnson's terminal illness was a serious issue, as was the cost of treatment. Thomas Johnson, a former state legislator and no relation of the prisoner, says such decisions are "very difficult and it's going to get a lot worse" because of mandatory sentencing guidelines.
Gerald Johnson's case, however, is different because "he killed a police officer and I will not vote to parole people who have killed police officers," the former legislator says. He says he knows that Mr. Johnson is terminally ill, "but we're all terminal in my perspective. Listen, we are all going to die." Swayed by such arguments, the board voted 8-to-5 to deny parole.
Clemency Application
On Sept. 16, Mr. Johnson's attorney decided to file an application for clemency with Illinois's governor, Rod Blagojevich. It was a risky move. Prisoners only get one shot at clemency. If the governor rejects it, a review board would likely never consider releasing the prisoner. Ms. Fazal asked for expedited consideration because of "the severity of Mr. Johnson's medical condition."
The Prisoner Review Board will review Mr. Johnson's case again and give the governor a confidential recommendation. Rebecca Rausch, Gov. Blagojevich's spokeswoman, declined to discuss Mr. Johnson's appeal. "The governor weighs each request seriously," Ms. Rausch says. "We review it as an individual case and each decision is made independently."
Thus far, Gov. Blagojevich has been sparing in granting clemency and has rejected virtually all applications from prisoners convicted of violent crimes. With that in mind, Ms. Fazal almost didn't submit the application, even though it was based on her client's terminal diagnosis. She doesn't know when Mr. Johnson might receive a response or if it will arrive before he dies.
"I thought about it and decided: What can they do to him?" Ms. Fazal says. "He's already in prison."
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