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Why Aren't Compassionate Release Laws Used More?

Compassionate release laws save taxpayer dollars, with minimal safety risk.

Key points

  • Elderly prisoners typically have the physical and mental health concerns of someone 10 to 15 years older.
  • The average annual cost to taxpayers to incarcerate one elderly prisoner is between $65,000 and $75,000.
  • The recidivism rate for elderly prisoners 65 and older is less than 4 percent.
  • Most states have existing compassionate release laws, but few use them.
Hermes Rivera / Unsplash
Source: Hermes Rivera / Unsplash

​Prisons are, in many respects, a microcosm of society, particularly in the United States. In 2030, the last baby boomer will turn 65, and one in five Americans will be older than 65. This aging population is also well-represented within our nation’s correctional system.

In 2016, the International Committee of the Red Cross hosted a conference titled “Ageing and Imprisonment: Identifying the Needs of Older Prisoners,” which discussed the institutional, legal, and healthcare needs of elderly inmates. Following the conference, researchers published a study outlining the challenges correctional systems face in providing healthcare to older inmates and highlighting strategies to improve the delivery of care.

Few outside of the criminal justice system know that elderly prisoners typically have the physical health challenges of someone who is 10 to 15 years older. For example, a prisoner in his early 50s will often have the medical concerns of someone in their early 60s. According to the study mentioned above, there are several factors that contribute to what is being referred to as accelerated aging:

  • Chronic physical and mental health conditions at a young age
  • Emotional stress and trauma
  • A history of drug abuse
  • Lack of access to adequate healthcare prior to incarceration

For these reasons, correctional practitioners and researchers classify inmates in their 50s as older or elderly prisoners. (I know that many people in their 50s, including myself, see themselves as middle-aged, not elderly.)

JP Valery / Unsplash
Source: JP Valery / Unsplash

While the general prison population has decreased in recent years, the number of prisoners aged 50 or older increased by 25 percent from 2009 to 2013—and as of today, elderly prisoners comprise 10 percent of the U.S. state prison population. The annual cost to incarcerate one elderly prisoner is, on average, $65,000 to $75,000—and that’s only the average. In some states, the cost is much higher.

In the United States, the amount of money that we spend annually to incarcerate elderly and ailing inmates is astounding. According to the ACLU, in 1988, the United States spent approximately $11 billion on the entire corrections system; however, in 2012, we spent approximately $16 billion solely on the aging prisoner population.

What Can Be Done to Reduce the Elderly Prison Population?

In response to the medical and financial burdens of an aging prison population, many states are considering releasing elderly inmates—an initiative that is well-supported by research.

A 2014 study by the United States Bureau of Justice Statistics, for example, indicated that older prisoners are substantially less likely to engage in additional criminal behavior after they are released from prison compared to younger prisoners; the overall recidivism rate for inmates over the age of 65 is four percent. Numerous other studies have reaffirmed that age is one of the most reliable predictors of recidivism, and elderly prisoners have much lower rates of re-arrest when compared to younger ex-prisoners.

A comprehensive understanding of the public safety risk posed by older offenders is an ideal first step in devising policies without compromising public safety and security, which is an obvious concern for politicians and constituents alike. But based on the data, one potential solution to the challenges associated with the aging prison population, then—and one that I wholeheartedly support—is to release nonviolent older offenders, particularly those with diminished cognitive or physical abilities. Since most elderly offenders pose very little threat to public safety, this could serve as a much-needed release valve for an already overcrowded, costly correctional system.

Simple enough, right? Perhaps not, considering that we as a nation have done little to make progress on this issue.

The Barriers to Compassionate Release

The practice of compassionate release, or what is often referred to as compassionate parole, dates to the early 1970s. Today, every state except for Iowa has a law to grant such releases, which often fall into two primary categories: age-driven geriatric release and illness-driven compassionate release.

Generally speaking, compassionate release, when it does occur, most often occurs when the prisoner has served a considerable portion of their sentence and is chronically or terminally ill, although each state has its own statutes or prison policies governing compassionate release (Davis, 2021).

Although a practical solution in theory, compassionate release is far more complicated in practice. Not only is the process lengthy and cumbersome, but there are significantly high denial rates. For example, a 2018 report by the Marshall Project concluded that only 6 percent of 5,400 compassionate release requests from the Federal Bureau of Prisons between 2013 and 2017 were approved. Of those, 266 died while awaiting a decision.

Karsen Winegeart / Unsplash
Source: Karsen Winegeart / Unsplash

What's more, the bulk of our nation’s prisoners are housed within the various state departments of corrections, not the federal system—which means they are each governed by their own procedures and timelines.

For example, in New Jersey, the former medical release law was replaced with a compassionate release program in which the courts determine who is released, not the parole board. Only one person was approved for compassionate release in 2021.

There has also been a considerable amount of pushback from some judges and politicians who oppose compassionate release—even though study after study has shown that the recidivism rates are incredibly low for this particular segment of the prison population.

While compassionate release legislation is a step in the right direction, more needs to be done. The adage "actions speak louder than words" holds true here. Until more elderly prisoners are discharged, either through compassionate release programs or perhaps clemency initiatives, the government and correctional facilities will be forced to spend more and more resources on serving this aging population.

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