Can a habitual offender in a Mississippi prison get conditional medical release if they're terminally ill, even though habitual offenders aren't eligible for parole?

Plain-English summary

The Commissioner of the Mississippi Department of Corrections asked the AG a practical question: MDOC has inmates who would qualify as "medically frail" and could be considered for conditional medical release (sometimes called "medical parole") under § 47-7-4. But many of these inmates were sentenced as habitual offenders and are barred from parole under § 47-7-3 and the habitual-offender statutes (§§ 99-19-81 and 99-19-83). Are they still eligible for conditional medical release?

The AG said yes. Conditional medical release is a separate program from parole, even though it uses the word "parole" colloquially. § 47-7-4 has its own list of exclusions, and habitual offenders are not on that list. The relevant exclusions under § 47-7-4(2)(c) are:

• Capital punishment cases (§ 47-7-4(2)(c)(i))
• Convictions as a criminal sex offender (§ 47-7-4(2)(c)(ii))
• Anyone the State Parole Board determines poses a public safety risk or flight risk (§ 47-7-4(2)(c)(iii))

The AG also pointed out that conditional medical release is not actually "release" in the everyday sense. Under § 47-7-4(2)(c)(xi), if the inmate recovers from the condition that made them medically frail, they go back to incarceration. The inmate is transferred to a "licensed special care facility for paroled inmates," still under corrections custody.

So a habitual offender can be considered for conditional medical release if they are medically frail under § 47-7-4(2)(b) and meet § 47-7-4(2)(c)'s conditions, including not being a capital or sex offender and not posing a public safety or flight risk.

What this means for you

Corrections officials and the Department of Corrections

The opinion holds that the habitual-offender bar in § 47-7-3(1)(a) does not foreclose conditional medical release under § 47-7-4, because the two statutes are "separate and distinct" and carry different exclusion lists. Habitual offenders appear in the parole exclusions but not in § 47-7-4(2)(c). Under the opinion, a habitual offender is eligible for conditional medical release if the offender is "medically frail" as defined in § 47-7-4(2)(b) and meets the § 47-7-4(2)(c) conditions, which exclude inmates sentenced to capital punishment, inmates convicted as criminal sex offenders, and anyone the State Parole Board finds poses a public safety or flight risk.

The State Parole Board

The opinion identifies the Board's role: § 47-7-4(2)(c)(iii) makes eligibility turn on the Board's determination that the inmate "must not pose a public safety risk or risk of flight." Being a habitual offender is not itself a disqualifier under § 47-7-4. The opinion does not direct how the Board should weigh any particular factor.

Criminal defense attorneys and families

The opinion establishes that the habitual-offender label alone does not bar conditional medical release. Eligibility requires the inmate to be "medically frail," defined in § 47-7-4(2)(b) as someone with a mental or physical condition from which, to a reasonable degree of medical certainty, recovery is not expected, who as a result cannot perform daily living activities and is a minimal threat to society. The opinion stresses this is not release from custody: under § 47-7-4(2)(c)(xi), an inmate who recovers is returned to incarceration, and the placement is a "licensed special care facility for paroled inmates," not the community.

Common questions

Q: What's the difference between parole and conditional medical release?
A: Parole under § 47-7-3 is the standard release-from-incarceration mechanism; the inmate becomes a parolee and serves the rest of the sentence in the community under supervision. Conditional medical release under § 47-7-4 is a transfer to a licensed special care facility while the inmate remains in corrections custody. If the inmate recovers, they go back to prison.

Q: Why is conditional medical release sometimes called "medical parole"?
A: Convention, not precision. The two are often grouped together, but the AG's opinion stresses they are legally distinct.

Q: What does "medically frail" mean?
A: § 47-7-4(2)(b) defines it as "an individual who has a mental or physical medical condition from which he or she, to a reasonable degree of medical certainty, is not expected to recover, and as a result cannot perform daily living activities and who is a minimal threat to society as a result of the mental or physical medical condition." All three pieces must be present.

Q: Are capital and sex offenders categorically excluded?
A: Yes. § 47-7-4(2)(c)(i) excludes inmates sentenced to capital punishment; § 47-7-4(2)(c)(ii) excludes inmates convicted as criminal sex offenders. Those are bright-line bars.

Q: Does the Parole Board have to grant conditional medical release if the inmate qualifies?
A: No. The statute uses the word "may" and conditions release on the Board's safety and flight risk assessment. Eligibility is necessary but not sufficient. The Board still has discretion.

Q: What happens if the inmate's condition improves?
A: § 47-7-4(2)(c)(xi) requires the inmate to be returned to incarceration if they recover from the condition that made them medically frail. The release is conditional on the medical condition continuing.

Q: Can the inmate appeal a denial?
A: The opinion does not address appeal procedures. It addresses only whether habitual offenders are eligible for conditional medical release.

Background and statutory framework

The opinion sets the question against Mississippi's habitual-offender statutes. As the opinion quotes, § 47-7-3(1)(a) provides for parole purposes: "[e]xcept as provided in Sections 99-19-81 through 99-19-87, no person sentenced as a confirmed and habitual criminal shall be eligible for parole." The requestor had noted that the inmates at issue were sentenced as habitual offenders under §§ 47-7-3, 99-19-81, and 99-19-83 and so are not eligible for parole.

Conditional medical release under § 47-7-4 is a different track. The opinion says it is "separate and distinct from parole," applies to inmates determined to be "medically frail" under § 47-7-4(2)(b), and carries its own conditions in § 47-7-4(2)(c). The opinion's key point is that the § 47-7-4(2)(c) exclusions differ from the § 47-7-3(1) exclusions: habitual offenders appear in the latter but not the former.

The opinion also notes two features that distinguish conditional medical release from ordinary release. It does not release inmates from corrections custody; it transfers them to "a licensed special care facility for paroled inmates as determined by the State Parole Board." And under § 47-7-4(2)(c)(xi), the inmate must be returned to incarceration if the inmate recovers from the condition causing the medical frailty.

Citations and references

Statutes:
- Miss. Code Ann. § 47-7-3(1) and (1)(a) (parole eligibility; habitual offenders barred from parole except as provided in §§ 99-19-81 to 99-19-87)
- Miss. Code Ann. § 47-7-4 (conditional medical release; medically frail inmates)
- Miss. Code Ann. § 47-7-4(2)(b) (definition of "medically frail")
- Miss. Code Ann. § 47-7-4(2)(c) (conditions for conditional medical release)
- Miss. Code Ann. § 47-7-4(2)(c)(i)–(ii) (exclusions for capital and sex offenders)
- Miss. Code Ann. § 47-7-4(2)(c)(iii) (Parole Board safety and flight risk determination)
- Miss. Code Ann. § 47-7-4(2)(c)(xi) (return to incarceration on recovery)
- Miss. Code Ann. § 99-19-81 (habitual offender enhancement)
- Miss. Code Ann. § 99-19-83 (life-without-parole habitual offender enhancement)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/09/B.Cain-September-6-2023-Habitual-Offender-Eligibility-for-Conditional-Medical-Release.pdf

Original opinion text

September 6, 2023

Burl Cain
Commissioner, Mississippi Department of Corrections
301 North Lamar Street
Jackson, Mississippi 39202

Re: Habitual Offender Eligibility for Conditional Medical Release

Dear Commissioner Cain:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the Mississippi Department of Corrections has several inmates who meet the criteria of "medically frail" and would thus be eligible for conditional medical release, also called medical parole, under Mississippi Code Annotated Section 47-7-4. You note that these inmates were sentenced as habitual offenders and are, therefore, not eligible for parole pursuant to Sections 47-7-3, 99-19-81, and 99-19-83.

Question Presented

Are habitual offenders eligible for conditional medical release under Section 47-7-4?

Brief Response

Conditional medical release in Section 47-7-4 is separate and distinct from parole as set forth in Section 47-7-3 and pertains to inmates determined to be "medically frail." Unlike Section 47-7-3, Section 47-7-4 does not explicitly exclude habitual offenders from eligibility for conditional medical release. Therefore, a habitual offender is eligible for conditional medical release under Section 47-7-4 if the offender is determined to be "medically frail" as defined by Section 47-7-4(2)(b) and also meets the conditions in Section 47-7-4(2)(c), including that the offender was not sentenced to capital punishment, was not convicted as a criminal sex offender, and does not pose a public safety risk or flight risk.

Applicable Law and Discussion

Section 47-7-3(1)(a) regarding parole eligibility for habitual offenders states, "[e]xcept as provided in Sections 99-19-81 through 99-19-87, no person sentenced as a confirmed and habitual criminal shall be eligible for parole." However, conditional medical release as authorized in Section 47-7-4(2) is distinct from parole provided for in Section 47-7-3. Though also known as medical parole, conditional medical release does not allow inmates to be released from corrections custody, but instead, transferred to a licensed special care facility for paroled inmates as determined by the State Parole Board. Further, Section 47-7-4(2)(c)(xi) requires the inmate be returned to incarceration if the inmate recovers from the condition causing him or her to be medically frail. The exclusions associated with those eligible for parole set forth in Section 47-7-3(1) are different than the exclusions associated with those eligible for conditional medical release set forth in Section 47-7-4(2)(c), and while habitual offenders are listed in the former, they are not listed in the latter.

To be eligible for conditional medical release pursuant to Section 47-7-4, the inmate must be "medically frail" as defined by Section 47-7-4(2)(b), and the conditions of Section 47-7-4(2)(c) must be met. Medically frail "means an individual who has a mental or physical medical condition from which he or she, to a reasonable degree of medical certainty, is not expected to recover, and as a result cannot perform daily living activities and who is a minimal threat to society as a result of the mental or physical medical condition." Miss. Code Ann. § 47-7-4(2)(b). However, pursuant to Section 47-7-4(2)(c)(i) and (ii), an inmate who has been sentenced to capital punishment, or an inmate who has been convicted as a criminal sex offender is not eligible for medical parole. Also, an inmate must not pose a public safety risk or risk of flight as determined by the State Parole Board. Miss. Code Ann. § 47-7-4(2)(c)(iii).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General