A dying 59-year old man serving time for drug possession was recommended for medical parole in 2013. Another prisoner sentenced on the same offense was also recommended that year.

Their circumstances were similar, but their fates were different. One was approved for medical parole. The other wasn’t and died in a prison in Lexington three months later.

Over the last five years, a minuscule number of people deemed too sick or frail for prison by the Oklahoma Department of Corrections were granted medical parole.

From 2013 to 2017, only 29 out of 137 prisoners’ cases— or 21 percent of medical parole cases that came before the governor and the state’s Pardon and Parole Board — were ultimately approved for release. Forty-two denials involved prisoners who committed nonviolent or drug crimes.

At least 13 of those recommended died in the agency’s custody, according to data from the state’s Office of Chief Medical Examiner.

Though some state officials say they face difficult decisions on medical parole cases and tend to err on the side of caution when it comes to public safety, criminal justice reform advocates say the state needs to release more sick and frail offenders, who are being treated — and left to die in prison — on the state’s dime.

Additionally, some parole board members have been critical of the governor, who has final say on medical parole requests, for denying cases.

Ryan Gentzler is a policy analyst at the Oklahoma Policy Institute who focuses on criminal justice. He said medical parole is typically a win-win for the state.

“If you get people with high medical needs out of prison, it means much lower costs for the Department of Corrections, which is extremely underfunded right now,” Gentzler said.

There is little risk of someone with a terminal illness reoffending, he said.

“The fact there is so few people getting out on medical parole is a reflection of larger dysfunction at the Pardon and Parole Board,” Gentzler said.

It’s not only medical parole that has caused concern for criminal justice reform advocates in the state. Many have been critical of what they consider to be a low number of people being released on parole in general.

The state’s Pardon and Parole Board released 325 prisoners in 2017, records show. Seven were released for medical parole.

The Frontier analyzed data from DOC, the state’s Pardon and Parole Board and the Oklahoma Secretary of State’s office to determine how many prisoners were granted medical parole. Five of the 29 prisoners recommended by DOC were released through the traditional parole process because they were eligible for parole, anyway.

The data does not include prisoners who died, were discharged or removed from the docket.

The Pardon and Parole Board recommended medical parole in 58 cases in five years, but 29 of those were thwarted when the governor later denied them.

Most of Gov. Mary Fallin’s denials were in 2013, when she denied parole in 20 of the 27 cases the board recommended.

Michael McNutt, a spokesman for Fallin, told The Frontier in an email the governor reviews several factors when considering someone for medical parole.

“The person’s medical condition is a key factor, including whether the condition makes the person less of a safety risk to the public,” McNutt said. “The governor is also concerned with the person’s criminal history and whether there is a history of violence, and the person’s conduct in prison.”

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Oklahoma began medical parole in 2000.

DOC recommends only a small number of prisoners for medical parole each year. From fiscal year 2013 to FY 2017, the agency started the process for 200 prisoners. Not all cases made it before the Pardon and Parole Board. Some prisoners died before their board hearings.

The agency may recommend medical parole for offenders who are dying or near death, which is typically when someone has a life expectancy of 12 months or less. The agency also must determine the prisoners no longer pose a threat to society.

Before DOC submits a medical parole request to the board, it must first find the prisoner a home offer for residence in the case he or she is released, said DOC spokeswoman Jessica Brown.

“Finding placement in long term medical or nursing facilities for convicted felons in not an easy task and can slow the process,” she said.

DeLynn Fudge became the executive director of the state’s Pardon and Parole Board in 2015. She said the board must consider several factors to determine whether a prisoner should be granted medical parole, including health conditions, disciplinary records, public safety and victim protests.

At least three of the five board members must agree to recommend a prisoner for medical parole before the request is passed to the governor.

“The one thing that I hear so much is people look at parole as a right, and it’s not. It’s a privilege,” Fudge said. “Even medical parole is a privilege. That person has been convicted of that crime and sentenced by a judge or jury.”

Fudge continued, “It’s always a balancing act, and it’s a very difficult balancing act.”

Fudge said she has seen indications the board is approving more parole requests this year.

The board has approved all five medical parole recommendations that have come before it in 2018. Fallin granted two of those.

Tom Gillert is chairman of the board. He said he tends to vote in favor of recommending medical parole because there’s little risk of prisoners reoffending.

“Chances are if someone’s wheelchair bound, they’re probably not much of a threat to the public,” he said.

Some of Fallin’s decisions to deny people medical parole have perplexed Gillert, he said.

He recalled a recent case the board recommended for parole that was later shot down by the governor. The offender was a sick man serving time for a nonviolent crime.

“I was pretty surprised when that person was denied by the governor’s office,” Gillert said.

Gillert said the decision seemed inconsistent with Fallin’s recent push for criminal justice reform and the need to incarcerate fewer nonviolent offenders.

“So here’s this guy on medical parole that fits that category we talked about, and yet the answer is ‘no,’ so you kind of wonder about the consistency of that position,” he said.

Gillert added, “That’s curious to me because we can all talk the talk, but ultimately, what are you doing? So I’m kinda curious, as I said earlier, I don’t know how those decisions are made.”

Fallin, through a spokesman, declined to comment on how she makes her decisions.

“It would be inappropriate for the governor to comment specifically on medical parole decisions,” McNutt said in an email.

However, Gillert acknowledged he has voted against prisoners seeking medical parole in the past.

Gillert, a former Tulsa County judge and prosecutor, said he might vote against a prisoner if they still could be a threat to the public or if he suspects their medical condition could improve, making them a potential threat.

Kris Steele is the chairman of Oklahomans for Criminal Justice Reform and has been a member of the state’s Pardon and Parole Board since August 2017. He said the prisoners DOC recommends for medical parole should be approved.

“At the end of the day, I think it comes down to, is an individual a threat or a danger to public safety?” Steele said. “And if not, the obvious answer for me is they should be granted parole.”

Two cases that came before the board last month stand out to Steele: A man serving time for trafficking illegal drugs and another incarcerated for attempted burglary. The Pardon and Parole Board approved them for medical parole, but the governor did not.

Steele doesn’t want to discount the crimes were serious, he said, but records indicated the men do not have long to live.

“I feel like their conditions were such that they were either going to need assistance to get around or they were confined to a wheelchair,” he said.

Steele said the lack of releases impacts the cash-strapped DOC.

“Not only does it become a quality of life issue, the state has to pay for 100 percent of the person’s medical costs,” he said. “It’s a secondary concern, but it is a legitimate concern because it does start to add up.”

DOC’s health care costs have grown over the last few years, and the agency expects that trend to persist, spokeswoman Brown said.

In fiscal year 2017 the agency spent more than $87 million, including personnel costs, on prisoner health care, she said.

“Costs associated with medications, hospitalizations and specialty care are all factors that drive health care costs for the agency,” Brown said. “As the inmate population grows and ages, we expect health care costs to continue to rise.”

Gentzler is not only concerned about the state retaining prisoners who should qualify for medical parole. He pointed to a study that found there were more than 6,200 people in Oklahoma prisons for nonviolent offenses who had passed their first parole date at the end of 2017.

Fallin signed seven criminal justice reform bills aimed to curb growth in the state’s prison system late last month. One of those bills, House Bill 2286, modifies the state’s parole system.

The bill streamlines the administrative parole process. Prisoners serving time for nonviolent crimes would be eligible for parole sooner. Elderly prisoners would also be qualified for earlier parole under certain conditions.

Steele said although Oklahoma still has a way to go on criminal justice reform, he’s optimistic of the bill’s effects.

“I think that is so significant given the reluctance of the board to grant more nonviolent offenders parole,” he said.

Steele added: “I think those reforms are super significant, and I think we will see an increase in the number of people who are granted parole in the state of Oklahoma.”