Release from Prison: Parole, Pardon, and Compassionate Release

Samantha Aguilar spoke with Christopher “Spike” Eickholt, an attorney and lobbyist with the ACLU of Nebraska. They dive into legal terms surrounding the ways an incarcerated person in Nebraska can be released. 

According to Spike, there are 3 main ways a person may be released:

Parole: Released from prison into the community under supervision by someone in the parole department. If the parole is violated they can go back to prison to serve the remainder of the sentence. Nebraska Parole Board members are appointed by the governor, who also serves on the Board of Pardons.

Pardon: Forgiven by the pardons board for your crime. The Nebraska Board of Pardons is a constitutional entity (like the Supreme Court) made up of the governor, secretary of state and attorney general so they do not have to provide an explanation of their pardon decisions or grant a hearing to a pardon request. They can accept or deny pardon requests or amend a sentence. A pardon can also occur after the sentence is served to remove the crime from your record.

“Jamming” a sentence: Completing the entire sentence in prison.

Compassionate Release/ Medical Parole: Can be granted if the person is parole-eligible and has a condition that would make them ill-suited to be in prison. They can instead be supervised by the Department of Parole in the community or a medical facility. 

Ed Poindexter and Compassionate Release

Compassionate release is a term that has been used as a possible means to get Ed Poindexter released from the Nebraska State Penitentiary as he nears 76 years of age. After a controversial trial, Poindexter and David Rice (later Wopsashite Mondo Eyen we Langa) were sentenced to life without parole in 1971 for the bomb murder of Omaha Police Officer Larry Minard. Mondo died in prison in 2016 and many supporters hope that because of Poindexter’s age and health concerns including diabetes and undergoing triple bypass heart surgery, he will be granted compassionate release by the Nebraska Board of Pardons.

Because in Nebraska, there is “life without parole”, to make Ed. Poindexter eligible for parole the Board of Pardons would have to modify Poindexter’s sentence to a number of years instead of a life sentence. This is a process called commutation. The Board of Pardons, can also completely pardon and erase his conviction. 

Eickholt said in his opinion, there has been enough clouding of the evidence surrounding Poindexter’s trial and conviction that, given his present health, he has a better chance than most to have the Board of Pardons hear his plea for compassionate release.

“He really does fit what is meant by a compassionate release type program,” he said. “What is being served by having him remain in prison.”

Nebraska Prisons and COVID-19

On July 1, Nebraska entered a prison overcrowding emergency, although being above the 140% capacity mark since 2009, resulting in accelerated review of parole-eligible people. 

When it comes to people seeking compassionate release in a pandemic, Eickholt said it does not make any fiscal or moral sense for anyone involved to keep them in prison. 

“Other states were doing things to get people moved around different prisons, to modify their sentences, and we just didn’t do that,” Eickholt said. “If we get an outbreak of COVID-19 in our prison system—the second most crowded prison system behind Alabama—then you’ve got problems that go far beyond the prison walls.”

Transcript of Interview:

Samantha Aguilar

[00:00:00]

If you go ahead and say a little bit about yourself.

Spike Eickholt

[00:00:03]

Sure. My name is Spike Eickholt and I'm an attorney and a

lobbyist with the ACLU of Nebraska. And I'm also a lobbyist for the Nebraska Criminal

Defense Attorneys Association.

Samantha Aguilar

[00:00:12]

So today we're going to kind of narrow it down to like some terms that we hear a lot about, like when we're talking about somebody who's been incarcerated, who is hoping to get released. So we share a lot of terms like parole and pardon. Could you just start off with explaining a little bit about the difference between those?

Spike Eickholt

Let's see, when somebody goes to prison, there's basically three ways they can be released from prison. One, they can be released from prison, and when they're released, they can be supervised in some way; either on parole

[0.0s]

or what's a relatively new thing called "post-release supervision", but basically, that's the same or similar type thing. When you're released, when you're on parole, you're still sort of serving your sentence as someone who is in prison, but you are no longer in a prison facility: You're in the community, you are supervised by someone in the parole department. You have to do certain things, and if you make a mistake or if you violate your parole, then you can go back into prison, serve the remaining period of your time that you're going to serve, or should have served had you not been paroled. Another way you can be released from prison is you can simply complete all of your sentence and then just be released- and that's

[00:01:23]

"jamming a sentence"

[3.0s]

or when you complete all of it. And jam is J-A-M, It's just a slang term, it doesn't have a legal meaning. But basically it means that you do all of your time and then when you're released from prison, you're done with it. Another way you can be released from prison, is that you can be pardoned or basically forgive and buy or pardons board for your crime.

[4.7s]

You can be pardoned even after your release from prison so you can get something removed off your record. But if you're in prison, you can request to be pardoned by the Pardons Board of Pardons or is a constitutional entity, is created by our Constitution it's three officeholders as the governor, the secretary of state and the attorney general. And those three people, can consider and do consider requests to be pardoned by people who are in prison and they can either grant those or deny those or amend a sentence after the fact to basically allow someone to be released into the community. So that's a general summary of the different ways that somebody who is in prison can get out of prison.

Samantha Aguilar

[00:02:35]

OK, and so what are the differences between a pardon and a "compassionate release", which is sometimes called a medical release and a "medical parole" in Nebraska?

Spike Eickholt

[00:02:44]

Right. Medical parole or compassionate release is where somebody is in prison and they are released on parole, not necessarily because they are close to completing their sentence, but because they are parole-eligible and they somehow have some sort of medical or physical condition that makes it so it would really be in the best interest, not only for that person serving the sentence, but really for the Department of Corrections to have that person paroled either to a hospital or some other medical facility instead of the prison system. There a statute that provides that the parole board can consider people who are serving a sentence and who are parole-eligible, and then they develop a medical condition, whether it's a sudden one or a gradual condition, it can be old age. It's something that would basically make that person ill-suited to be in prison and instead to be supervised by the Department of Parole in the community. It's Commonly called compassionate release because many times you'd have people make that request to be paroled for medical purposes or they're coming close to the end of their life. And really, that person's many times deemed by the board of parole to not be a threat to the community any longer, really be better served for everyone if they were not in prison, but instead perhaps at a medical type facility or even sometimes at home if they'd be better treated in that situation.

Samantha Aguilar

[00:04:12]

And how often does that happen in Nebraska?

Spike Eickholt

[00:04:16]

It doesn't happen that much. I mean, I don't know if there's great statistics that show how it is. And I say that it doesn't happen that much in Nebraska because when the COVID-19 situation struck, many states have a type of compassionate release or medical parole or a way basically to transition people from their prisons to the community because of medical or health needs. Many other states made very robust and active use of those types of programs and and laws to basically transition those people who were in prison at a higher risk of getting COVID-19 to move those people out of prison into the community. And even though we have that opportunity in Nebraska to provide for medical parole, it really was not pursued very aggressively by the governor or by the Department of Corrections Administrations. So I think of use as an example, I would say, and this is just anecdotally, and it's my opinion, that we don't use medical parole perhaps as much as other states do. And as much as perhaps we could do.

Spike Eickholt

[00:05:20]

One thing I just want to say about medical parole is that people who get it need to be parole eligible. When you're parole-eligible, that means that you've served enough of your sentence that you can be paroled. To give an example, if the listener ever hears, I guess, somebody getting a sentence, you may hear somebody go to prison and the judge will impose, for example, a 10 to 20-year sentence. "Ten years" is the parole-eligibility number. "Twenty years" is the jam number or the number that you need to serve. And I said earlier, Jam means that's the time that you serve before you completely done with your sentence. So the way a 10 to 20-year sentence works is that that person must serve 10 years in prison, minus good time, which is something separate from parole. But they have to serve a minimum sentence of 10 years. And then after they serve that 10 years, that parole eligible for the remaining 10 years, just because a person's parole-eligible doesn't mean they're gonna be paroled. So, for instance, they appear in front of the parole board. And that person has no plan for where they're going to live. The person's been committing all kinds of rule violations in prison the whole 10 years they've been there, and if they say they're going to go right back out to stealing and using drugs and whatever they were doing beforehand, the Border of Parole is going to deny their release. So for someone to be medically paroled, they still need to be passed that minimum part of their sentence, to be paroled.

Spike Eickholt

[00:06:47]

If a person is not parole-eligible, one thing they can do, and this is what Poindexter is trying to do, is they can ask the Board of Pardons to make them parole eligible to change their sentence, for instance, in his situationist life to life, to change his minimum sentence from life to maybe a term of years that he's already served, essentially. And then he would be automatically eligible to go in front of the Parole Board to ask for medical release. So that's how the Board of Pardons and the Border Patrol sometimes work together on these things.

Samantha Aguilar

[00:07:23]

Yeah. Just to give some context to that, like with the Poindexter case, he's serving a life sentence for a crime, he was convicted for in 1971. So people like are calling on him to get a compassionate release. Like what would the process of that look like and like what is...or who gets to decide?

Spike Eickholt

[00:07:44]

In Poindexter's case...and I don't represent him and I'm not immediately familiar with it, but he is serving a life sentence. And in Nebraska, we do have life-without-parole. Life means life. That means unless somebody changes his sentence, he's going to be there for life. He cannot be paroled by the Parole Board because for medical reasons or any other reasons, because he's not parole-eligible. Now, the Board of Pardons can make him parole-eligible. They can amend his...the Board of Pardons can change his minimum life sentence to something like 40 years. in other words, they can commute what they call a "commute a sentence" or converted to a term of years. Instead of life, it can be 40 to life. He's already done the 40 years...then he's parole-eligible. He can appear in front of the Parole Board or request medical release and explain from his doctor, from doctors inside the Department of Corrections his medical...his situation with his medical health and what his plan is if he is released in that community.

And that's one way he could be released. But it starts really in his situation with the Board of Pardons, and that's the governor, the secretary of state and the attorney general.

[3.7s]

Now, sometimes the Board of Parole, which is a group of appointees that sort of work regularly with people who are requesting to be paroled, sometimes a Board of Parole can make a recommendation to the Board of Pardons as to whether somebody should have a sentence modified or whether they should be pardoned.

And if I remember right in the mid-90s, the then board of parole that's got different members now did recommend to the Board of Pardons in Nebraska that Poindexter have his sentence converted to term of years and that he be pardoned in some way. And obviously, one other very simple way the wind could be released...really, anyone to be released in this situation is the Board of Pardons could just outright pardon him and forgive him and wipe away his conviction altogether. And then he's free. That's really the greatest and the simplest way to resolve that.

Samantha Aguilar

[00:09:46]

So if somebody does appeal to the Board of Pardons, but like, they don't give them the pardon, does the board have to explain why, like, why they came to that decision?

Spike Eickholt

[00:09:57]

No, they don't. That's the short answer. The Board of Pardons in this state; this makes our state a little bit unique, they are a constitutional body. They're like the Supreme Court or the governor. Once they make a decision, there's really nowhere else in the state government, you can go. They have the final answer. And if they say no or if they deny a pardon, they do not have to give an explanation. Sometimes they do. To their credit, sometimes they will explain for a while. The Board of Pardons was not even having hearings for people who requested pardons. They were simply denying them automatically or not granting a hearing for sometimes a couple of years. They didn't have a hearing. The Board of Pardons regularly gets requests from people many times, people who got a conviction on the record from years ago, even misdemeanor convictions. They were young and they were dumb. They got a conviction 20 years later. They want to get it off the record. So they go to the Board of Pardons and ask. And so you see a lot of those types of requests. The Board of Pardons really has great latitude to do what they want to do. The theory is, is that that's the way that society wants it to be. You want to have the Board of Pardons give pardons as an act of grace, as an act of forgiveness, and you want to make it so that they can do whatever they think is just. But one of the other sides of that is, is that there really isn't a lot of way to sort of hold them to their decisions if they don't want to give an explanation as to why they say no, there's really not a way to make them give an explanation as to why.

Samantha Aguilar

[00:11:32]

And like we've talked about this kind of earlier, but what role does the Corona Virus play in all this? Do you think that would prompt the Board of Pardons or the Parole Board to seek maybe taking further measures and releasing incarcerated people?

Spike Eickholt

[00:11:48]

Well, you would...you would hope that it would. Right. I mean, here you have a pandemic literally of a hundred years, hit this world, hit this community, hit the state in the country. It is most problematic in prison...in prisons and situations in which people are closely confined. And that includes schools, prisons, it includes some workplaces. And you would hope that to mitigate that risk, not just for the people who are serving sentences, but the people who work in prisons, the people who...the family members of the people who work in prisons, and all those people in the community would have contact with people who are in the prison system; You would think that you would want to somehow alleviate that risk of transmission and spreading of COVID by doing whatever you can do to either socially distance people or to somehow stop the spread within the system. And one way to do that, and the experts will tell you and other states have, and that is that you look at releasing people who are not going to be in good medical condition if they get the virus. I mean, what you don't want to do as a society is convert your prison systems into some sort of state-run hospital system for a bunch of people who are suffering from this virus that we do not have a vaccine for or any real way to effectively treat at this point.

Samantha Aguilar

[00:13:20]

And like so for...in Poindexter's case, he has diabetes like he has like only one eye that's working, he's in a wheelchair, he's had a triple bypass heart surgery. Does that like does that meet the qualifications for compassionate release?

Because I know, like that has to do with, like, a person who is permanently incapacitated or terminally ill. What are the requirements? Right.

Spike Eickholt

[00:13:46]

I mean, if you look at the statute and it says section 83-1,110.02, I think you just mentioned some of the eligibility guidelines. "A person who is serving a sentence to be medically-parole-eligible needs to have an existing medical or physical condition, to be terminally ill or permanently incapacitated." And that is somebody who is confined to a wheelchair, who has been diagnosed with a serious life-threatening condition, who is in their later years or at least anticipating a later year in life. And from what I've heard about Mr. Poindexter and his health, I think, in my opinion, he would meet those qualifications. I think the obstacle from him just appealing to the Board of Parole is the simple fact that he's not parole-eligible, there's not parole-eligible because he's servinga life sentence in which he's not eligible for parole.

Samantha Aguilar

[00:14:38]

So in this case, you would first have to appeal to the board of parole and then and then. Pardon?

Spike Eickholt

[00:14:45]

He'd have to go to the Board of Pardons to sort of... and one thing the pardons board could do...And he's asked before and they said no, but he could always just simply ask to be pardoned completely to have his conviction vacated, set aside. And they could just be free forgiven essentially for the crime that he was convicted of and the sentence that he's already served and just leave the prison system as a person with that case and that sentence behind him. That's one thing the Board of Pardons could do, they could just outright pardoned him. And there's reasons in Mr. Poindexter's case that's not really part of what we're talking about here today in which he's asked for pardons, actual innocence: that there's been inconsistency in the evidence, there's been later recantation of witnesses and all those other things that somebody might ask the Board of Pardons to grant a pardon. And thus far, Nebraska Board of Pardons, has said no. But a more narrow request and of the Board of Pardons can do is, he could say, "Can you at least convert my life sentence to a term of years? Can you at least modify my sentence to make me parole-eligible so that I can ask to be released on medical parole? So I don't have to be in the prison system anymore in my...In my present state of health."

And I think that's a reasonable request. I think that what I've heard about Mr. Poindexter's case and his health, that he meets whatever qualifications and or department is going to do it for somebody such as him, I don't know when they're going to do it.

Samantha Aguilar

[00:16:15]

So what other factors go in to account when...like when the Nebraska Department of Correctional Services is looking at like possibly releasing incarcerated people? And do they look at the overcrowding in the prisons? Do they look at like, the Coronavirus? Like what else would they have to think about?

Spike Eickholt

[00:16:33]

Well, the department of corrections doesn't really look at the overcrowding situation. We are now officially in an emergency overcrowding situation. And what that did on July 1st is sort of triggered accelerated review of those people who are already parole-eligible. If somebody is parole-eligible, and they're told no the first time they can't leave, they can come back six months later or a year later and ask the Parole Board again to be released. Now that we're in an emergency, one thing the part of corrections can do is somehow step up, getting those eligible people before the Board of Parole for review.

We didn't really have anything in statute to provide for a consideration of the Coronavirus and COVID-19, when we thought about how we're going to deal with our present system. To the director's credit, at least what we've heard, and we simply don't know because not many people have been out there to see exactly what the department of corrections have done. They claim that they've instituted some cleaning methods, some aggressive social distancing, they did limit visitors coming to the prison system. They did what they could do to contain it. One thing they did not do is they did not appeal to policymakers, the governor, state senators who changed the law to allow for them to somehow have an opportunity to alleviate or release people who may have COVID-19 or be at a higher risk to get it.

So I know it's kind of a convoluted answer, but there really wasn't much that was done. If you remember reading the news stories, you saw that other states were doing things to get people moved around different prisons that modify their sentences, doing something to do that. And we just didn't do that. We didn't take advantage, if that's an opportunity...and you hate to say that COVID-19 is an opportunity, but we didn't take advantage of that scenario. We didn't think to do that. And there is an argument on the other side of why not to, but in my opinion, that was kind of unfortunate, pretty short-sighted, because if we get an outbreak of COVID-19 in our prison systems, which is the second most overcrowded prison system behind the Alabama. Then you've got problems go far beyond the prison walls, you've got...you've got..you've got problems really for the entire community, the entire state.

Samantha Aguilar

[00:18:53]

And yeah, because like in April, like Governor Ricketts even said that, like, no matter how many groups call for premature releases, they're not going to do that in Nebraska. What can people do, I guess, like because he's on the parole board or he's on the Pardon Board, you said. So it seems like a lot of this power like to release incarcerated people is very centralized, like in Nebraska government. What can people do to try and appeal people's parole so hard and stuff like that?

Spike Eickholt

[00:19:23]

One thing you could do, you can always contact your policymakers. And I know that's kind of a short-sighted answer, but even...you're right, the governor has a greater role in the running of the prison system. It's that he, he appoints the members of the Parole Board and the governor is on the Pardons Board. So he does have a much greater role in some respects, when it comes to running our prisons and this issue that we're talking about here today: parole and pardon and medical/compassionate release. But, there are other people involved or other policymakers involved. Senator McCallister, had a bill earlier this year that would require the Board of Pardons to have hearings regularly and to actually issue findings when they deny or defer a requests for pardons. The bill did not advance, but it did trigger a really close look and a good debate about what the role of the Pardons Board was. And maybe it was just coincidental, I'm not sure. But after Senator McCallister introduced his bill, and after we had a very good hearing on that bill, the Board of Pardons began to have hearings again that they hadn't had for a couple of years. So I think that people focus and there's the public light, a sort of shown on this subject, I think that will certainly a matter. So that's one thing people can do.

They can always contact the governor. He can always appear at those hearings for the Board of Pardons, whether you know somebody who is requesting a pardon or not, and just if you have the opportunity to testify in any of those, simply speak and testify to those. As I have always indicated and I'll indicate to those people who may be watching now, onething you can do for all these policy-making.. these issues we've been talking about; all of the opinions expressed, all the things that we asked for, none of that matters if people do not register to vote and vote. And demand responses from those people who they elected to state and local government.

Samantha Aguilar

[00:21:23]

Definitely. So, like if compassionate release is granted or like a medical parole, what is the process of that look like? Like how...how soon is the incarcerated person released?

Spike Eickholt

[00:21:34]

So you can be very quickly. I know one incident, one incident a couple of years ago or somebody suffered a very acute sudden injury in prison and then they suffered a significant brain injury. And at that point, they needed to be moved out and that person was parole-eligible. They were paroled and then they worked with a provider inthe community to basically set this placement there. Now, when they're on parole they...when a person is on parole, any type of parole, whether it's regular parole or medicalparole, they have a parole officer who will supervise that person, meet with that person. A medical parole is tailored for that, that individual was serving a sentence to basically get the medical treatment that they need. So there usually is an effort to somehow get them moved from the prison system to either a hospital or sometimes like I said, even home, or something like that as soon as quick...as soon as possible so that their health is maintained.

Samantha Aguilar

[00:22:36]

And with the way that the Nebraska government is shaped now, like with the way that the Parole Board and the Pardon Board, you know like don't have many regulations like the bill you we're talking about that didn't pass. What, I guess are the odds that like a compassionate release, Poindexter, be seen anytime soon?

Spike Eickholt

[00:23:00]

I never want to...as I said earlier, I think that I think you summarized his present health; it's not good from what I hear. There's been enough clouding his conviction and there's been enough issues raised with a sentence that one would think, given all of that and his present medical help. You know, what is being served by having you remain in prison? I think that there's enough clouding Mr. Poindexter's conviction, enough problems with how he was convicted and what led up to him serving that life sentence that given his present medical health, I think he's got a better chance of maybe most to have the Board of Pardons hear his plea for a compassionate release and hopefully the Board of Pardons will grant it. If anything, convert a sentence to a sentence that will allow him to be paroled for medical purposes, for medical parole.

And I think that's a fair request and I'm optimistic that something like that would happen. Now, whether it does, I guess we'll have to see. But I think that he really does fit what is meant by, and hoped by a compassionate release type program.

Samantha Aguilar

[00:24:16]

And what else do you think the general public should know about compassionate release, medical parole and just the process of getting somebody out of incarceration?

Spike Eickholt

[00:24:28]

For loved ones, it's gonna be very difficult to have someone in prison who is just not healthy. Our prison systems are not hospitals, they're not. The medical care is available for them in a prison setting, but it is what they call a community standard of medical care, and it's not always the best, despite what the department of corrections staff tries to provide many of the medical... the people who are doing medical work in the prison system are other inmates or other prisoners that are trained to do so.

Because we have that chronic staffing problem, and this is one part where we have staffing...we don't have enough medical professionals, some would say, don't have enough medical professionals to treat those people who are in prison. So, for those loved ones would have people in prison or suffer medical conditions, compassionate release is something that they really hope their loved ones will be granted so that they can come home. But I think and I don't mean to quantify this, but in a real crude way, I mean, even the tough on crime people types, right...even those people who "say lock them up", don't really have a lot of interest in having our prison systems become nursing homes. Right? They don't really have a lot of interest in paying that. I mean, at some point, even people who do horrible things, at some point, they become...they reach a point in their life of a really no longer a threat to others. And keeping them locked up and warehoused in a prison setting really doesn't make a lot of sense, really, for anyone involved. It perhaps doesn't make...It doesn't make a lot of fiscal sense because it costs a lot of money to treat people in that situation. And it doesn't really like a lot of moral sense to do that either. So I think that compassionate release is a way that we can balance issues of, criminal justice, accountability and also humaneness. And doing what's right in this state.