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Compassionate Releases Needed for an Aging Prisoner Population

by Ed Lyon

From 2007 to 2016, New York’s prison population dropped by 17 percent, mainly due to efforts to divert low-level, first-time offenders into alternatives to incarceration. But during that same period the state’s number of elderly prisoners increased 46 percent. New York’s 10,337 elderly prisoners now represent around 20 percent of its total prison population.

A similar ratio exists in the four other largest state prison systems in the U.S. Texas has 142,000 prisoners, 28,502 of them elderly. California is next with 136,000 prisoners, of whom 27,806 are elderly. Florida follows with around 100,000 prisoners, 21,620 of them elderly. New York is fourth. Fifth is Pennsylvania with 51,000 prisoners, 10,214 of whom are elderly.

The federal Bureau of Prisons (BOP) housed about 176,700 prisoners as of October 2019, and 19.2 percent were over age 50. That is the age at which a prisoner is considered “elderly” by the National Institute of Corrections. At the current growth rate for the elderly prisoner population, as calculated by the ACLU, such prisoners will make up a third of the nation’s total prison population by 2030.

The problem is not limited to the costs of treating age-related health issues such as arthritis, cancer, emphysema, joint replacements and strokes. Research also shows that 40 percent of elderly people will suffer from dementia. Already, about half the U.S. prison population is afflicted with some type of mental health problem. [See: PLN, Feb. 2019, p.22]. With many prisons short-staffed, advocates fear that prisoners suffering from age-related dementia will end up in solitary confinement or segregation cells.

There have been 21 health studies of elderly prisoners from 2008 to 2018. Tina Maschi, a professor at Fordham University’s Graduate School of Social Science, noted that it costs an average of $68,000 per year to incarcerate an elderly prisoner versus $22,000 to lock up a younger one.

Among elderly prisoners, health problems are even more acute for women, whose requests for medical care are 250 percent higher than for male prisoners. Female prisoners also suffer from a higher rate of chronic illnesses than their male counterparts, and have an earlier onset of age-related dementia due to head trauma caused by abuse and disproportionately higher rates of drug use prior to their arrests.

A 2014 study of 327 mostly elderly female prisoners in five Southern states found they had, on average, four chronic medical conditions for which they required five medications each day to treat. Female prisoners tend to commit crimes later in life, according to a study by Lisa Barry, an assistant professor at the University of Connecticut’s Center on Aging, and receive life sentences at a higher rate than male prisoners.

There is a cost-effective, safe and simple way to address this growing problem: Release elderly prisoners, especially those who are eligible for parole or terminally ill.

The practice of “compassionate parole” dates back to the 1970s. Currently every state prison system except Iowa’s is empowered by law to grant such releases, which fall into two categories: age-driven geriatric releases and illness-driven compassionate releases. Prof. Maschi reported that over a five-year period, Maryland identified $185 million in savings associated with both types of releases for its elderly prisoners.

Supported by statistics showing recidivism rates between one and three percent for elderly parolees, several independent studies have concluded that prisoners “age out” of criminal behavior, much like those who earn college degrees.

As previously reported in PLN, the main reason that parole boards deny release is due to the seriousness and nature of the underlying offense, which will never change. How a prisoner has reformed himself or herself since being incarcerated – or whether they are elderly or seriously ill – is rarely given similar weight. [See: PLN, Jan. 2019, p.60].

BOP prisoner Anthony Bell applied for compassionate release predicated on a medical prognosis that he had just six months to live. He was denied by non-medical prison officials who disagreed with the doctors and opined that Bell had 18 months left to live. He died two days later in April 2015, with one year remaining on his 16-year sentence.

Another federal prisoner, Carlos Tapia-Ponce, was denied compassionate release despite being 94 years old, due to the seriousness and nature of his offense. He died the following month, in February 2016.

A third BOP prisoner, Kevin Zeich, had less than two years to live due to advanced cancer but still had three-and-a-half years to serve on his sentence. His compassionate release requests were denied three times. His fourth request was granted, but he died just prior to his release in March 2016. His daughter keeps his ashes in the closet.

“We brought him home, but not the way we wanted to,” she said.

From 2013 to 2017, federal prison officials received 5,400 requests for compassionate release, of which just six percent were granted. Meanwhile, 266 of the prisoners who applied died while awaiting a decision. [See: PLN, Dec. 2014, p.50]. Compassionate release requests by the majority of state prisoners typically fare no better.

As of May 2019, a full year after the Massachusetts legislature enacted compassionate release for state prisoners who are incapacitated or terminally ill, just four of 22 applications had been approved according to Cara Savelli, spokeswoman for the state’s Department of Correction (DOC).

“They’re [effectively] repealing the statute and they’re spitting on the Legislature and spitting on the governor, who signed the statute,” argued Ruth Greenburg, an attorney suing the DOC on behalf of Joseph Buckman, a 73-year-old prisoner seeking medical parole.

Massachusetts prisoners who request medical parole must present a notarized medical diagnosis along with a treatment plan, then the prison superintendent has 21 days to review and make a recommendation to the DOC Commissioner. A closed hearing is held, at which victims or their relatives can testify and District Attorneys can also weigh in.

“We shouldn’t be warehousing people who are no longer physically capable of posing a threat to society, and instead should be getting them out to a nursing home or hospice where they can get better care at lower cost to the state,” said Massachusetts Senator Will Brownsberger, one of the sponsors of the new law.

“The impact of these [compassionate release] policies remains limited because so many people are ineligible, the criteria for release are so restrictive, and the process for approval is so burdensome,” concluded a 2017 study by the Vera Institute of Justice.

A trio of U.S. Senators – Brian Schatz, Mike Lee and Patrick Leahy – joined fellow Senator Chuck Grassley to sponsor the First Step Act, which was signed into law by President Trump in 2018. [See: PLN, April 2019, p.1; Jan. 2019, p.34]. The measure allows prisoners who have waited over 30 days for a response from the BOP to bypass the agency and directly petition the federal courts for compassionate release.

BOP prisoner Richard Evans received one of the first judicial releases under the First Step Act in March 2019. The 74-year-old was 22 months into a five-year term for distributing hydrocodone and oxycodone when U.S. District Court Judge Kenneth Hoyt ruled that a malignant melanoma on Evans’ neck presented “extraordinary and compelling reasons” for reducing his sentence to time served, plus three years of supervised release.

“Without the court process, our client would die in prison,” noted Evans’ attorneys, David Gerger, Samy Khalil and Ashlee McFarlane.

“It is the most amazing feeling to work with the many lawyers who are filing and beginning to win compassionate release motions for prisoners who I know would never have made it to court, were it up to the BOP,” said Kevin Ring, president of Families Against Mandatory Minimums, a nonprofit that has long advocated for expanding compassionate release and other reforms on the federal level. 

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Sources: bop.gov, bostonglobe.com, chicago.suntimes.com, citylimits.org, correctionsone.com, daily.jstor.org, earlcarl.org, forbes.com, nbcnews.com, newsday.com, npr.org, nytimes.com, prisoneducation.org, thecrimereport.org, themarshalproject.org, usatoday.com, Voice for the Defense Magazine, washingtonpost.com