Donald Rash is 62 and an inmate at the Texas Department of Criminal Justice's Powledge Unit in Palestine, serving 23 years for a 1999 robbery. He suffers from severe spinal disorders, diabetes, chronic chest pain, hypertension, post-traumatic stress disorder and hepatitis C.
He can’t stand without crutches, and his lawyer said he regularly misses meals because he can't walk to the prison cafeteria.
“He can barely hold up his head,” said attorney Michelle Smith of the Texas Civil Rights Project, who has visited Rash. “He’s a shell of a man.”
Despite his afflictions, Rash's advocates said the Navy veteran is not considered sufficiently infirm to be referred for medical parole. He has been eligible since 2002. “I don’t know if it’s incompetence or malice,” said attorney Brian McGiverin.
Rash’s lawyers argued at a press conference on Tuesday that his case is a “graphic illustration” of the budgetary crisis TDCJ faces. The department is paying for the medical care of inmates like Rash with state dollars. But if he were freed, the federal government, in the form of Medicaid or the Veterans Administration, would pay for his expensive treatments. Rash's attorneys estimated that the 10 inmates with the highest medical costs account for $1.9 million in TDCJ spending every year.
Inmates can be granted a form of parole called Medically Recommended Intensive Supervision if they are cleared by the University of Texas Medical Branch, the Texas Correctional Office on Offenders with Medical or Mental Impairments, housed within TDCJ, and the Board of Pardons and Paroles. As their cases go through each of these gatekeepers, the number of eligible inmates narrows. According to the Texas Public Policy Foundation, as few as one in four of the inmates recommended by doctors for medical parole are granted it.
TDCJ spokesman Jason Clark said the Board of Pardons and Paroles must agree that an inmate “is no longer a threat to public safety.” Clark could not confirm whether Rash is being considered for medical parole, and Harry Battson, spokesman for the Board of Pardons and Paroles, declined to discuss the case, citing medical privacy. The parole board, he said, doesn’t need to provide reasons for its decisions. In 2011, the board released about 100 inmates under medical supervision. The board, Battson said, primarily determines whether a prisoner will be a threat to society, and it is not aware of a prisoner's medical costs.
McGiverin said that granting medical parole to inmates like Rash would save the state millions of dollars each year.
Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, agreed that the process is creating needless costs. In a recent report, he noted that granting parole to “infirm” inmates would save the state $42.6 million in 2013, while only adding $1.57 million in parole costs.
Levin said his organization is planning to propose legislation to simplify the process for medical parole. Levin said time and money are wasted when doctors spend write recommendations for inmates who won’t be considered eligible for medical parole anyway. And, he said, the parole board members don’t likely have the medical knowledge to understand the language in the recommendations.
A single commission with doctors and parole officials “in the same room” discussing cases “would really streamline the process,” Levin said.
Lawmakers considered releasing more infirm inmates during the 2011 legislative session, but those proposals failed. At the time, parole board chairwoman Rissie Owens warned legislators about "miraculous recovery," or cases in which dying inmates have been paroled, then recovered and committed new crimes.
If there is any chance for a change in Rash’s status ahead of his next parole evaluation, it will likely either come from a lawsuit — his attorneys declined to comment on whether one would be filed — or from policy changes in the 2013 legislative session. "We take our direction pretty much from the Legislature," said Battson, the parole board spokesman.
"Donald knows he made terrible decisions," Rash's lawyers wrote in his parole prospectus. "He takes full responsibility for his crimes and intends to be a law-abiding citizen on his release."
His niece, Samantha Peyton, has been writing Rash letters for years. She was in middle school when her uncle went to prison. Now, she hopes he is granted parole so he can meet her daughter.
"I would love for him to get out so we could visit," she said.