The Compassionate Prison Paradox


Last Friday, the Department of Justice published three death-in-custody investigation reports. One person had died suddenly while in the community on temporary release. The other two people, referred to by the soubriquets ‘Mr F’ and ‘Mr T’, had died from terminal illnesses; one on compassionate temporary release in a hospice and the other in hospital following an acute onset of respiratory symptoms in his prison cell.

These last two deaths had echoes of other cases and set me to thinking about the case of ‘Mr I’ who died in 2018 (the investigation report was only published in August 2020). In a blog post at the time – Deaths Under Sentence – I considered what it means to be in prison the morning of your death despite having been diagnosed with a terminal illness many months prior:

“There is much to be highly critical of in the case of Mr I… movement from a low-security open prison to a closed prison to access appropriate healthcare; failure to grant compassionate temporary release; and the inexcusable delay in bringing Mr I to hospital after complaint of severe pain. Despite institutional justifications, cruelty and inhumane treatment – whether intentional or as a result of human resource issues and bureaucratic failures – is still cruelty and inhumane treatment.”

The Inspector of Prisons, in the action plan to the 2020 report, recommended that “the IPS [Irish Prison Service] should review the application of its Compassionate Temporary Release (CTR) Policy to ensure that prisoners who are temporarily ill are appropriately released on license in order to avoid the indignity of dying in prison.” In the face of an unequivocal appeal to compassion and the upholding of human dignity, the Irish Prison Service only partially accepted this recommendation. Citing the primacy of security concerns, even for those in the last weeks and months of their lives, the IPS defended the Ministerial process of granting temporary release on compassionate grounds:

“The decision maker cannot be restricted to give medical options more significance over other factors i.e. security concerns when making a decision.”

Yet, while the stated primary role of the IPS is the provision of “safe and secure custody,” this is tempered by the second clause noting a “dignity of care for people committed to prison.” It was clear that end-of-life medical decisions would not trump reflexive security concerns. While security and compassion will always be in tension in a carceral environment, little evidence exists to demonstrate an equal footing.

After spending 46 years in custody, Mr F died on his third day of compassionate temporary release (CTR) in a hospice. He had been diagnosed with Stage 4 liver cancer a month earlier and had to wait the majority of that time for an available hospice bed before his CTR could go through. Lack of community end-of-life care had a very real consequence for a person who spent the vast majority of his life in prison.

The second person who died – Mr T, a 74-year-old male – did not even receive CTR despite having received a terminal diagnosis eight months prior. He was transferred to the hospital three days before he died in December 2019 due to an acute onset of respiratory symptoms. Some salient points stand out in the report which should not be glossed over. Firstly, Mr T was very unwell as he was receiving ongoing medical treatment at Portlaoise General Hospital and had 24-hour care assistant support in the eight months following his diagnosis. The decision to seek a suitable community facility, which is required before CTR is granted, was only made eight days before his death. Again, similar to Mr F, the lack of community end-of-life care places prevented Mr T receiving care in a hospice. Poignantly, prison management had confirmed to the Inspector that “the HSE were actively working to source a place for Mr T in a regional community hospice however Mr T passed before a place became available.”

While both Mr T and Mr F died in December 2019 and April 2020 respectively, prior to the publication of the investigation report for Mr I in August 2020, their cases reaffirm the culture which exists. With cases like Mr T, who had a longer period of illness, decisions need to be made proactively to allow seemingly scant hospice places to be secured. Concerns of security must be allowed to be diminished by concerns of compassion. A person’s journey towards their death is too important for them and their family to be compressed into a couple of days of acute illness in a hospital.

The Department of Justice needs to prioritise clearing the backlog of death in custody reports by addressing any staff needs which the Office of the Inspector of Prisons may have. Key learnings and recommendations from deaths in custody should be available in a shorter time frame.

When the death in custody report for Mr I was published in 2020, we also reflected on the sociological and theological implications of a person dying in custody or only being released in the days prior to death. We warned that:

“[w]ith changing prison demographics, moving towards a higher proportion of older prisoners, the presence of terminally ill prisoners will require similarly proactive action from the Department of Justice so prisoners do not have to experience the indignity of dying in custody.”

While we may look to nations which impose the death penalty and congratulate ourselves that such barbarity does not happen in Ireland, the lines between the gurney and the hospital bed in the prison cell must always be drawn:

“Permitting a person to remain in custody until their death, in effect implementing a death sentence, reveals that the retributive need of the State is only satisfied after a prisoner’s death. At no point in the prisoner’s life is the revenge satisfied and the person dies knowing the weight of retribution as opposed to mercy and compassion.”

It is important to note the distinction made by the Inspector in her 2020 recommendations to “avoid the indignity of dying in prison.” It is not enough to quickly shuffle a dying person to a hospital or hospice in their final days so their death is outside the walls.

For the Minister, Department of Justice and the IPS, compassion in a prison should not extend to caring for the dying. But there should be compassion enough to allow a dying person to receive care anywhere that is not a prison and give them as much time for that journey as possible.