Compassionate Release Part II: Aging to Death in Prison

Pop culture can play an important role in informing our knowledge about important social issues that would not normally make it into the public consciousness. For example, the popular series Orange is the New Black did well to remind us all that in fact, time does not stop when you’re imprisoned, and many individuals will become senior citizens behind those walls. In part II of my discussion on compassionate release, I want to talk about some of the specific concerns of elderly prisoners (of which there are many), and how some of these might be mitigated to everyone’s benefit by some form of compassionate release.

But as several writers have pointed out, when it comes to compassionate release for the elderly for non-life threatening conditions, OITNB got it pretty wrong. As noted, prisoners don’t get released because they’re causing too much of a hassle to the system, they just get ignored or inadequately treated—in fact, it’s incredibly difficult to earn such a release. Families and/or lawyers must petition for release, and the process is notoriously arduous. Release plans must be outlined down to the most minute detail, and extensive conditionalities are applied to every release.

In the linearity of life there’s no escaping the fact that as we age and our cells decay, our bodies begin to face daily battles that were inconceivable in our youth. From the random aches and pains that appear seemingly out of nowhere, to the statistical reality that we are trading off a longer human lifespan for the increased likelihood that we will develop at least one cancer in our lifetimes (in the latter case, of course, the types of releases the elderly will be looking at will be based on terminal diagnoses, as referenced in Part I).

Over 246,000 individuals over the age of 50 are incarcerated in America’s prisons, and at our current rates of incarceration, that’s a number likely to continue its expansion.  These numbers add serious pressure related to the broad range of chronic medical conditions experienced by inmates, in an environment that is already super-charged with stresses. Justice Department guidelines introduced in 2013 now allow for elderly inmates who have served a minimum of 50% of their sentence, and are experiencing to apply for early release after the age of 65. In the absence of any medical deficits, if they have served 10 years or 75% of their sentence, they too are eligible to apply.  But as is so often the case, the Bureau of Prisons is lagging well behind in its implementation of these guidelines, and very few individuals have been released under these new guidelines.  Despite the BOP’s repeated assertions that they’ll “get on this” right away, little is happening, and the annual number of qualified elderly prisoners being released remains similar to those prior to the 2013 guidelines.

As with any case up for review, public safety concerns will of course be taken into account. And while the Bureau of Prisons does not track recidivism rates according to age, samplings indicate that aging inmates tend to be re-arrested at a rate 30% less than younger populations.

There’s also an important observation made by a palliative care doctor in the above article, “It’s important for all of us to remember that convicted criminals are sent to prison as punishment—not for punishment” (emphasis added). And that’s a critical distinction that ultimately acts as a deciding line for between barbarism and humanity.

The one thing that OITNB did get right, is that it does make little fiscal sense to keep elderly prisons institutionalized when they pose no risk to public safety, and there are options that are readily available outside prison. Reports indicate that releasing low-risk populations “would save taxpayers up to $40 million a year.” While the annual costs of caring for a prisoner are around $5,500, this can double and triple for older populations.

Another important consideration relates to those inmates who are not necessarily serving life sentences, but whose terms will end when they are already elderly. Currently there are no transition mechanisms in place to deal with the specific concerns of elderly inmates, no halfway houses which can accommodate the various health and mobility issues associated with these aging populations. So upon re-entry, those prisoners will essentially be left to the wolves—and that’s where the OITNB nightmare scenario really plays out.

According to the WHO, we have two choices: either prisons dramatically increase their healthcare budgets to deal with the added stressed inherent to a growing aging prison population, as Medicare coverage does not extend to extend to those individuals over 65 that are incarcerated (an unlikely scenario given the BOP’s track record in health care), or they expedite their compassionate releases as they’ve promised they will for the last several decades. There isn’t a third option in this scenario—and we can’t keep ignoring that fact.