by Matt Clarke
According to a recent study by the U.S. Department of Justice, about 11% of the state and federal prison population in 2016 was over age 55. Of those prisoners, numbering roughly 160,000, around 38,000 were 65 or older. The share of prisoners over age 50 is expected to swell from about 17% in 2013 to 33% by 2030.
States that have an even higher percentage of elderly prisoners include Massachusetts, where 17% of state prisoners are over 55. New York’s overall prison population fell by 17% between 2007 and 2016, but at the same time the number of prisoners age 50 or older rose by 46%, to include over 10,000 of the state’s more than 50,000 prisoners.
Older prisoners face unique safety hazards, plus other age-related problems – such as incontinence and dementia – are exacerbated in penal settings. They also require more healthcare services, which they have a constitutional right to receive under the Eighth Amendment. In Massachusetts, for example, the annual cost of caring for a single hospitalized prisoner is $283,000 – four times the cost of incarceration in a maximum-security facility.
The United States is not alone in facing an aging prisoner population, though its sheer number of prisoners exacerbates the problem. In Japan, the prison population over age 60 rose to 9,308 from 2006 to 2016 – 19% of the nation’s prisoners.
The increased population of older prisoners forced a prison in Tokushima, Japan, 325 miles west of Tokyo, to convert a building to house them on its lower floor. Prison officials have adapted their strict work requirements to accommodate the medical conditions of elderly prisoners, some of whom are allowed to work in their cells instead of marching to jobs at a prison factory.
About 25% of prisoners over 65 who are released from Japanese prisons return within two years, the highest recidivism rate of any age group. The reason is an inability to survive in the community due to a strong cultural stigma against former offenders.
“If you are young, you can find a job and have a chance at to lead a normal life,” stated Tokyo Future University professor Yasuyuki Deguchi. “The lack of employment opportunities combined with labeling as an ex-convict makes reintegration difficult for the elderly.”
In America, elderly prisoners face similar issues upon release yet they have the lowest recidivism rate of any age group. U.S. recidivism rates decrease as prisoners get older – dropping to 5% for those age 50 to 64 and reaching less than 1% by age 65. That would seem to make them an obvious choice for parole.
“It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said U.S. Senator Brian Schatz.
The “compassionate release” program in the federal Bureau of Prisons (BOP) was created by Congress in 1987. The program aims to release terminally ill prisoners and those whose continued incarceration has become “inequitable.” But an investigation by The Marshall Project, published in the New York Times, found the BOP approved only 6% of the 5,400 applications it received for compassionate release from 2013 to 2017. Of those, 266 prisoners died in custody while still awaiting a decision. Half were convicted of nonviolent crimes involving fraud or drugs. [See: PLN, Aug. 2018, p.58; Dec. 2014, p.50].
A 2013 report by the Inspector General’s office found that 60 percent of the BOP’s denials were based on the severity of the prisoner’s original crime rather than his or her current age or health. BOP officials testified before the U.S. Sentencing Commission (USSC) at a 2016 hearing that compassionate release was an inappropriate “vehicle for broad reduction” of the federal prison population.
The USSC then issued revised guidelines asking BOP officials to limit their determination as to whether a prisoner meets the compassionate release criteria to factors such as age, illness or disability, or whether he or she is a sole caregiver for someone outside the prison system. The risk posed to the public by the release is best determined by a judge, not the BOP, the USSC concluded.
In February 2018, Schatz joined fellow Senators Mike Lee and Patrick Leahy to introduce legislation that would allow prisoners denied compassionate release by the BOP to appeal that decision directly to a court. Improvements in the BOP’s compassionate release program were included in the First Step Act, signed into law in December 2018.
Comparable problems persist at the state level. All but three states have policies or protocols similar to the federal prison system’s compassionate release program. But a survey by the Milwaukee Journal Sentinel found just three states – Utah, Texas and Louisiana – freed more than a dozen prisoners on compassionate release in 2015.
In Wisconsin, the Journal Sentinel reported there were 1,200 prisoners age 60 or older at the end of 2016, each of whom cost the state $70,000 annually to incarcerate – a total of $84 million. Yet only six of those prisoners were freed in 2017 under the state’s compassionate release program. Those denied included a blind quadriplegic and a 65-year-old breast cancer survivor who is wheelchair-dependent to move from her cell to a visitation room.
Wisconsin’s compassionate release program dates to 2001, two years after the state passed a “truth in sentencing” law that eliminated parole – and inflated the budget for its prison system so much that it now exceeds the cost of the state’s higher education system.
To apply, prisoners must be age 65 with at least five years of their sentence already served, or 60 with 10 years served. Those with chronic illnesses may also apply if two doctors certify they cannot be treated properly while incarcerated. Prisoners serving life sentences or who have convictions for serious felonies are not eligible.
A referral to a court for compassionate release is made by a committee that includes a social worker and other prison employees, who must weigh several factors including cost. The prisoner also makes a statement explaining how their release serves the public interest.
However, no one sentenced before the elimination of parole in 1999 is eligible for the program. Instead, those prisoners – comprising about 15% of the prison population, who are also among its oldest – must appear before a parole board. The board is under no obligation to consider factors such as a prisoner’s age, illness or disability; rather, it must find whether “sufficient time for punishment” has been served and if the prisoner poses no unreasonable “risk to the public” if released.
In 2016, the most recent year for which data was available, only 185 of approximately 3,500 Wisconsin state prisoners incarcerated prior to 1999 were approved for parole – including just a dozen age 60 or older. The state does not track prisoner costs by age cohort. But between 2007 and 2017, while its prison population was aging dramatically, Wisconsin’s inflation-adjusted budget for prison healthcare ballooned from $2,856 per prisoner to $4,712 – a 65% increase.
According to Rebecca Silber, with the Vera Institute of Justice, the focus of most parole boards is on the original crime, and they often lack details about a prisoner’s health.
“A parole board may get a disciplinary record that doesn’t have any context with respect to the person’s medical condition and to what extent the diagnosis may be affecting their behavior,” she said.
In a May 2018 report, the Osborne Association – a prison reform advocacy group – concluded that parole assessments would be fairer if more emphasis was placed on a prisoner’s age as a behavioral factor, because “as people age out of crime and transform, parole boards should consider these dynamic, current factors rather than emphasizing the ‘static nature of the crime.’”
These age-related factors, the report pointed out, are not limited to physical conditions but also include a “desire to give back that characterizes many older incarcerated individuals.”
By focusing solely on crimes that occurred decades earlier, the report continued, parole boards often ignore the possibility that a prisoner has matured, transformed and is deserving of release. Further, when parole is denied, it is easier to continue to deny it each time a prisoner comes up for review – especially as many now-elderly prisoners were convicted of violent crimes.
That may also be a reason why the aging prison population is largely left out of the debate over ending mass incarceration, which mostly focuses on nonviolent drug offenders.
Even when they are released, parolees often face a life that is “isolated from their families and communities, excluded from social services, rife with poverty and stigma,” the Osborne Association report added. Parolees are not eligible for Medicare. They often are ineligible for public housing, and may be turned down by landlords and potential employers due to their criminal record or lack of an employment history.
In March 2018, New York Governor Andrew Cuomo proposed a program to parole prisoners over the age of 55 who suffer from serious illnesses and cannot care for themselves. Yet even if that program is approved, less than 1,000 older prisoners will be eligible to apply for release.
New York was also one of the first states to create a special unit for prisoners with dementia, while Virginia and Florida have prison units that resemble nursing homes. Wisconsin is one of several states with a prison hospice program, and Connecticut places some elderly, low-risk prisoners on “nursing home parole” in private assisted-living facilities.
The National Institute of Corrections estimates that the annual cost to incarcerate prisoners over age 50 is double what it costs for other prisoners. According to physician Brie Williams, a professor of medicine at the University of California-San Francisco, healthcare – especially prison healthcare – is “a very expensive resource,” and society must “decide who it should be used for.”
It is not only cost effective, but also the most socially-responsible option to release elderly and infirm prisoners who no longer pose a threat to public safety, particularly given their low recidivism rates.
Sources: Milwaukee Journal Sentinel, www.reuters.com, www.thenation.com, www.npr.org, www.themarshallproject.org
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login