Death, Illness, and Notification in Delaware Prisons

There are two directions a death or a serious illness can travel through a prison wall, and a family usually only thinks about it when it is already happening.

One direction is from the outside in. Someone in the family is dying or has died, and you need the prison to tell your incarcerated person, and you are wondering whether he can be there for it. The other direction is from the inside out. Your person is the one who is sick, or who has died in custody, and you are trying to find out what happened and what you are allowed to do. This article walks both directions for Delaware, run by the Delaware Department of Correction (DOC).

One thing to understand up front about Delaware: it runs a unified system. The same Department of Correction operates the facilities that hold people awaiting trial and the prisons that hold sentenced people, so there are no separate county jails. Delaware also organizes custody into levels, and a person's level affects how much movement, including any escorted trip, is even possible.

I am also going to tell you something I learned the hard way, because I do not want it to land on you cold. An approval that has been granted is not the same as your person being there. Those are two different things, and the gap between them is where families get hurt.

When the Death or Illness Is on the Outside

If someone in the family is gravely ill or has died and you want your incarcerated person notified, the channel is the facility, usually through the counselor or the chaplain. Call the institution, explain the emergency, and be ready to provide verification, such as the funeral home's information or a death certificate for a death, or a hospital or physician confirmation for an imminent death.

Notification is the part that tends to work. Whether your person can leave the prison to be there is a separate and much harder question.

Attending a Funeral or a Wake in Delaware

Delaware actually has a furlough statute that addresses this, and it is worth knowing exactly what it says, because the limits are specific. The law is at Title 11, section 6538 of the Delaware Code.

What a death furlough covers. In the case of a death, a furlough may be granted for an immediate family member, which the statute defines narrowly as the inmate's mother, father, son, daughter, brother, sister, husband, or wife. The furlough is to attend a private viewing or wake with the immediate family. That is the scope; this is not an open-ended pass.

Who decides and sets conditions. The Institutional Release Classification Board, or the warden in charge in cases of emergency, sets the conditions of the furlough, including whether the inmate will be handcuffed to the officer and when. This is an escorted, secured trip.

A flat exclusion to know. Delaware law provides that a person serving a sentence for a class A felony is not permitted to participate in any furlough. If your person is serving a class A felony sentence, a funeral furlough is not available, and you should plan accordingly.

One humane detail in Delaware law. Delaware normally requires public newspaper publication of the name and crimes of an inmate placed on certain furloughs or special visits, but the statute specifically exempts a furlough or special visit for the purpose of attending the funeral of an immediate family member. In other words, a grieving family is not forced into a newspaper notice to get a funeral furlough considered.

Now the part I promised you.

I was told I had a five-hour furlough to attend my mother's funeral. I was told to get dressed and wait for the escort. I got dressed. I waited. The escort never came. Word going around was that the warden had been moved or was on leave, and the assistant warden denied it. Nobody walked up to me with a form. The day just passed. What I got, in the end, was a free phone call.

I tell you that not to make you bitter before you start, but to make you smart. An approval that exists on paper is not a person standing at a graveside. Administrators change. Acting wardens reverse decisions. Escort details fall through. If you are pinning the family's grief on the hope that he will physically be there, you are building on sand. Plan the service around the family that can be there. If he makes it, that is a mercy. If he does not, you were not depending on it, and the grief is heavy enough without that.

Ask about a phone call or video at minimum. Even when a furlough is denied or impossible, the facility can usually allow a call, and Delaware offers video visiting, so your person may be able to be present for a service by video. Ask the counselor or chaplain directly, and ask early.

When the Illness or Death Is on the Inside

The other direction is harder, because you have less control and the information comes slower. Delaware does have more than one route home for a seriously ill person, but understand the backdrop first: Delaware abolished traditional parole under its Truth-in-Sentencing Act for crimes committed on or after June 30, 1990. For most people in prison today, the practical medical routes are the two described below, not ordinary parole.

If your person is seriously ill in custody. Push for medical information, knowing that medical privacy rules limit what staff will share unless the inmate has authorized release of information to you. Encourage your person, while able, to sign a release naming you. If the condition is serious, terminal, or disabling, Delaware has two distinct mechanisms.

Delaware medical parole. Under the medical parole provision (Title 11, section 4346(e) of the Delaware Code), if it seems necessary for the incarcerated person's well-being, the Department of Correction can recommend that the Board of Parole consider the person for medical parole, generally where the person has a physical or mental condition requiring medical treatment that the Department cannot furnish. Delaware law does not list categories of crime that make a person ineligible to be considered. Because this route runs through a Department recommendation, the practical key is getting the prison's medical and classification staff to move.

Delaware sentence modification due to illness or infirmity. Separately, Delaware allows a sentence modification based on illness or infirmity. The Department of Correction files an application for good cause on behalf of the incarcerated person with the Board of Parole, and must certify that release would not be a substantial risk to the community. The Board reviews the application and sends those it approves to the sentencing court for a decision. Importantly, the usual rule that violent-felony and mandatory sentences require serving part of the term first does not apply when the sentence modification is based solely on serious medical illness or infirmity. That makes this a meaningful route for a genuinely terminal or gravely ill person regardless of time served.

The same hard truth applies to both. These releases are rare and they take time, because they depend on the Department initiating or certifying and then the Board and sometimes a court acting. If your person may qualify, do not wait. Get the diagnosis documented, have your person sign the release of information, ask the prison medical and classification staff to start the process, and consider an attorney.

If your person dies in custody. When a person dies in Delaware DOC custody, the Department notifies the family. This is why the emergency contact and next of kin your person has on file matter so much. Make sure that record is correct now, because the people listed are the people the prison will try to reach, and if that contact is unreachable or estranged, the family that actually wants to know can hear late or secondhand.

Autopsy and the medical examiner. Delaware has a statewide Medical Examiner within the Division of Forensic Science, and by law the Medical Examiner investigates in-custody deaths along with the other categories of death it covers. In practice, when a person dies in DOC custody the body is turned over to the Division of Forensic Science for an autopsy to determine the cause and manner of death, and the Delaware State Police criminal investigators also investigate. The Division has its main facility in Wilmington for New Castle County and a Georgetown facility serving Kent and Sussex counties. Because the death is investigated, the family does not automatically get the body released immediately; the timing depends on the Medical Examiner.

Claiming the body. The next of kin can claim the remains, generally by working with a funeral home that arranges release from the Division of Forensic Science once the examination allows. Make your intention to claim your person known promptly, and be clear about who the legal next of kin is, because disputes between family members slow everything down. If the family cannot afford arrangements, ask the funeral home and the institution about options, because unclaimed remains are eventually handled by the state.

What Families Can Do Before a Crisis

Most of the pain in these situations comes from decisions that were never made in calm times. A few things you can do now, while no one is dying:

Make sure your person has the correct emergency contact and next of kin recorded with the DOC, and keep it current. This single detail determines who the prison calls.

Have your person sign a release of information naming the family members who should be allowed to speak with medical staff. Without it, privacy rules will keep you in the dark.

Find out your person's custody level and whether their offense is a class A felony, because a class A felony sentence rules out a furlough entirely, which makes a phone call or video the realistic option for a funeral.

Ask the counselor how video visiting works, so your person can potentially attend a service by video.

If your person has a serious, terminal, or disabling condition, ask the prison medical and classification staff to begin a medical parole recommendation or a sentence modification due to illness, and have your person sign the release of information, because these routes take time.

State Resources

Delaware Department of Correction: contact the institution directly; use the DOC website for facility, counselor, and chaplain contacts.

Delaware Board of Parole: for medical parole and sentence modification due to illness or infirmity.

Delaware Division of Forensic Science (Medical Examiner): Wilmington (302) 577-3420, for cause of death, autopsy, and release of remains.

Delaware Division of Public Health, Office of Vital Statistics: for certified copies of the death certificate.

Delaware 211: dial 2-1-1 for grief support, funeral assistance resources, and counseling referrals.