As the number of successful medical parole applications stagnates, the Oklahoma Pardon and Parole Board voted unanimously earlier this month to request a legal opinion on who has the authority to refer a prisoner to the medical parole docket.
The letter, which was delivered to the Attorney General’s Office on Oct. 7, inquires whether the board’s executive director may place an inmate on a medical parole docket. The Department of Corrections has interpreted the statute, which the Legislature updated in 2021 with the goal of expanding eligibility, as giving its director the final say on medical parole referrals.
Resistance from the Department of Corrections has kept James Havens, a 73-year-old prisoner suffering from prostate cancer, from being placed on a medical parole docket. He was convicted of first-degree murder in 2008 and sentenced to life with the possibility of parole, making him eligible under state law.
Despite a favorable recommendation from prison medical staff, DOC officials denied Havens’ medical parole application in June. Havens has been hospitalized off-site at taxpayer expense since February, according to his attorneys, Christopher Garinger and Aaron Easton.
Pardon and Parole Board Executive Director Tom Bates wrote that the request stemmed from a specific case, but noted that the board has faced numerous calls to adopt a broader interpretation of the statute.
“The Board’s unilateral adoption of this legal interpretation would essentially reappropriate discretionary authority concerning parole from the Department of Corrections and may be met by countervailing interpretations either by DOC’s counsel or the office of the governor,” Bates wrote. “Conversely, the state’s exposure to litigation will increase as long as the question remains outstanding, and the status quo unquestioned.”
Bates, who is set to retire on Nov. 30, declined to specify which case prompted the request. If the attorney general’s office agrees with a broader interpretation of the statute, Bates said the board would be tasked with developing new rules and procedures for medical parole referrals. For instance, a referral could come directly from the agency’s chief medical officer without going up to the director.
Kay Thompson, a spokesperson for the Department of Corrections, said the agency has no opinion on the Pardon and Parole Board’s request. The governor’s office, which has the final say in granting parole to violent offenders, did not respond to a request for comment.
Garinger and Easton said they met with Pardon and Parole Board staff in early September to argue that the Department of Corrections has overstepped its authority. An agenda item requesting a legal opinion on the matter was placed on the board’s Oct. 6 meeting agenda.
“It’s not the Department of Corrections’ role in the scheme of corrections or rehabilitation to make those determinations just because they’re the ones that employ the doctors,” Garinger said. “That doesn’t make logical sense. And then the financial burden on the state of Oklahoma is huge, and if there’s a way to offload that to somebody else, that’s what the law says we’re supposed to do.”
The decision could affect release prospects for hundreds of other elderly and medically frail prisoners, a population that has surged over the past 15 years. As of Dec. 31, 2024, 16.6% of Oklahoma’s prison population was 55 or older, more than double the rate of 7.68% in 2009. Off-site annual medical costs for prisoners 60 or older now exceed $8 million, ODOC Chief Administrative Officer Jenna Thomas told lawmakers at an Oct. 1 interim study on sentencing reform.
Meanwhile, the number of elderly prisoners released on medical parole has plummeted. Just six inmates have been granted medical parole since November 2021, down from 30 in three previous calendar years. A lengthy bureaucratic process makes it difficult to apply for medical parole without the assistance of legal counsel.
Criminal justice reform advocates have argued for expanded medical parole and elderly release programs, pointing to studies that show a near-zero recidivism rate for prisoners 65 or older. But the hesitancy to release prisoners convicted of serious offenses such as rape and murder has hindered adoption. About 92% of Oklahoma’s prison population 60 or older was convicted of a violent offense, according to the Department of Corrections.
It’s unclear how long it will take the attorney general’s office to draft and release an opinion, though recent history shows the agency can expedite the process for pressing matters. Attorney General Gentner Drummond delivered an opinion on the legality of the Oklahoma Highway Patrol moving its troopers out of urban areas within seven weeks.
“The question is one of general law, not James Havens specific, but we would like a response sooner rather than later if at all possible,” Easton said. “It will have real-world implications on our client.”
