Dying inmates may appeal court decisions against early release

Justice Kathryn Mickle Werdegar said denials of an early release directly affect the rights of inmates, and they are entitled to challenge them.
(Paul Sakuma / Associated Press)

The California Supreme Court decided unanimously Thursday that dying prisoners may appeal a judge’s decision refusing them an early release.

The ruling overturned an appeals court decision that said only the Department of Corrections and Rehabilitation or the parole board could challenge a trial court’s decision denying a so-called compassionate release.

Alden Loper, the severely ill inmate who challenged the denial, was charged in San Diego County with underpayment of taxes and worker’s compensation premiums in his tree trimming business. He pleaded guilty to one charge and was sentenced in February 2011 to six years in prison.

In August 2012, the Corrections Department asked a court to release Loper because he was terminally ill. A prison doctor said Loper suffered from a variety of ailments and might die within six months.


A judge in San Diego asked the department for more information. Another prison doctor said Loper had a terminal illness, but the second doctor could not say with certainty that Loper would die within six months.

One of the state requirements for compassionate release is that the inmate has fewer than six months to live. The judge turned down the Corrections Department’s request.

The state did not appeal, but Loper did. The lower courts said inmates lacked the right to appeal a decision in a case that they did not initiate. State law permits only the Corrections Department or the parole board to ask for an early release. Inmates cannot file such requests on their own.

Justice Kathryn Mickle Werdegar, writing for the court, said denials of an early release directly affect the rights of inmates, and they are entitled to challenge them.


“When the proceeding is properly initiated by prison or parole authorities as required by law,” Werdegar wrote, “the trial court‘s decision produces an appealable order that may be appealed by the prisoner.”

Raymond M. DiGuiseppe, who represented Loper, said Loper has exceeded expectations and remains alive but is in dire condition. Loper, 61, suffers from a heart ailment and chronic obstructive pulmonary disease in addition to diabetes and high blood pressure, DiGuiseppe said.

He expressed hope that Loper’s appeal would succeed before the inmate succumbs.

“He could die at any moment,” DiGuiseppe said. “He may not profit that much from this decision, but he has been a trailblazer for others.”


Twitter: @mauradolan