Editor's Note
California Lawyer

January 2014

Robert Lee Dana had spent more than three-and-a-half decades in prison, all the while insisting that he had nothing to do with the double homicides he was convicted of. But three months ago Dana suddenly told a very different tale, and the person he decided to tell it to was our own contributing writer Tom McNichol.

"I got the sense that he was tying up loose ends," McNichol says. "He did mention God a few times, and it was in that context that he spoke about what he had done."

At the time McNichol spoke with him, Dana was a patient inmate at the state prison hospital in Vacaville. His ailments included lymphoma, congestive heart failure, and leukemia - all of which made it seem highly unlikely that he would survive for more than another few months. Yet, he remained hopeful that there was still time for him to obtain what's called a compassionate release under a provision in the state's penal code, to spend his remaining days with loved ones, outside of prison walls.

Of course, many would argue that such compassion - especially for convicted killers, no matter how close they are to death - is seriously misplaced. And for them it will no doubt be of some comfort to know that, because the review process is so cumbersome, few compassionate release applicants actually make it out alive. However, as McNichol shows in this month's cover story ("Final Requests"), the issue is a lot more complex than simply being tough or soft on crime.

For one thing, how compassionate is it if dying inmates, once released, aren't able to get the palliative care that they need? As part of the application review process, judges are supposed to consider that. They're also supposed to determine whether terminally ill offenders may yet pose a threat to society. In Dana's case, for example, the court speculated that he might become violent if, on the outside, he started abusing his prescription painkillers.

As a younger man, Dana apparently was a drinker. In fact, he told McNichol that when he killed a pair of acquaintances back in 1976, it was in a drunken rage. McNichol says he believes Dana's account.

But Nora Wilson, a staff attorney with the prisoner advocacy group Justice Now, isn't so sure. She recounts that in advising Dana about the compassionate release process, she told him that dying inmates who continue to deny their guilt have a harder time persuading judges to let them out.

So was Dana a guilty man, or simply a desperate one?

"As far as I know," says Wilson, "Mr. Dana's wife sincerely believed in her husband's innocence before she died of cancer" last spring.

"I guess at this point, I'm not sure what to think," she adds.

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