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America's elderly prison population boom is becoming a nightmare

A scathing new report shows that caring for aging prisoners is fast becoming a fiscal nightmare and overwhelming a system unable to provide elderly care.
George Whitfield, age 56, uses a walker to get to the physical therapist's office at California State Prison, Solano, on December 16, 2013 in Vacaville, Calif.
George Whitfield, age 56, uses a walker to get to the physical therapist's office at California State Prison, Solano, on December 16, 2013 in Vacaville, Calif.

One of the saddest byproducts of our nation’s addiction to incarceration is the graying of our federal prison population, a development comprehensively documented in a scathing Justice Department report that shows caring for aging prisoners is fast becoming a fiscal nightmare. 

"The Impact of an Aging Inmate Population on the Federal Bureau of Prisons," released Wednesday by the inspector general, points to mandatory minimums and the elimination of parole, coupled with lengthening sentences, as chief drivers of an elderly population boom that is overwhelming the prison system's ability to provide adequate care.

The Justice Department’s internal watchdog found that the Bureau of Prisons (BOP) is often unable to provide adequate and humane housing and care for elderly, infirm prisoners. Some with documented medical needs or who exhibit symptoms that require diagnosis can wait months for medical appointments. Others with limited mobility housed in overcrowded facilities may be forced to climb to upper bunks because lower bunks are already assigned, or navigate stairs to access their “handicapped-accessible” cells.

The report calculates the costs of housing aging prisoners as significantly higher than for the population overall. Delays in medical attention drive them higher yet, as treatable but neglected conditions worsen or become emergent, requiring expensive visits and admission to outside hospitals. These costs increase pressure on an overburdened federal corrections budget and contribute to the annual appearance of federal prison costs as first among equals of “top management challenges” faced by the Department of Justice.

This situation is as avoidable as it is disturbing. The BOP has broad power under federal law to recommend the release of such prisoners. When Congress instituted mandatory sentencing and eliminated parole in the mid-1980s, it removed the power of federal courts to revisit final sentences in all but a few circumstances. The BOP was granted exclusive authority to petition federal courts for “compassionate release.” For many years, however, the BOP practiced the “death rattle rule,” recommending only a scant handful of terminally ill prisoners for reduced sentences.

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Families Against Mandatory Minimums (FAMM) had worked for many years to encourage the BOP to use its compassionate release power more robustly, including consideration of elderly prisoners whose continued incarceration most would deem senseless and cruel. We were heartened when, following a sharply critical report about compassionate release from the inspector general in 2013, the BOP expanded eligibility to infirm and other elderly prisoners who had served significant portions of their long sentences.

Our optimism was misplaced. The report released yesterday reveals that, while in the first year of the new rules nearly 300 prisoners asked for release, and wardens recommended the early release of 52 of them, the BOP director approved only three. This is a disgrace. 

The inspector general's report makes several suggestions related to staff training and guidance aimed at helping to increase the number of compassionate releases. It also recommends expanding the criteria to increase the number of people eligible for release. 

They're good ideas, but not enough.

The paltry number of elderly releases is due, we believe, to the fact that the BOP assumes a role Congress never gave it. For compassionate release purposes, the jailers assume the role of judges, assessing not only if a prisoner is old enough, has served enough time, and is frail enough, but also if they deserve to be released. The BOP denies release based on its assessment of, among other things, the nature of the offense, the prisoner’s criminal history, or whether early release would minimize the severity of the offense. But these matters bearing on public safety are best evaluated by the court. Because Congress gave the BOP the sole power to bring a compassionate release motion to a judge, the court has no power to grant release unless the BOP asks it to do so.

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The inspector general’s report points out that elderly prisoners are a pretty safe bet when it comes to public safety considerations. Their recidivism rates are very low, compared to those of the overall prison population. 

The BOP should get out of the business of assessing the worthiness of a prisoner and let judges do their job. Once the BOP has determined that a prisoner is old enough and has served enough time, it should bring the compassionate release motion to the court. 

If it won’t get out of the way, Congress can easily fix the problem by allowing prisoners a right they do not currently have: to appeal BOP denials directly to court, where the decision belongs.

Mary Price is General Counsel of Families Against Mandatory Minimums, where she directs the FAMM Litigation Project and advocates for reform of federal sentencing and corrections law and policy.