The PDF in which this article appears can be found in Bifocal Vol. 44 Issue 3.
Perhaps one of the least discussed results of mass incarceration is the number of older adult prisoners who, as a result of receiving life without parole sentences earlier in life, have aged while incarcerated. There are a significant number of older adult individuals serving life without parole (LWOP) sentences—nearly a quarter of all LWOP prisoners are over the age of 65 and nearly half are over 50 (Nellis 2022). Even more alarming is that incarcerated individuals experience an increased rate of aging as a result of prison conditions, meaning that someone in prison has the equivalent health of someone 10 to 15 years older in the outside world (Nellis 2022). Older adult prisoners are also much more susceptible to illness, something that is further exacerbated by poor prison healthcare. In fact, prisons are not in many ways built for people living with neurocognitive conditions like dementia. “The typical correctional setting relies on a person understanding, remembering, and learning rules and tasks that are difficult or impossible for a person with dementia” (Godfrey et al. 6).In theory, there is a solution: compassionate release programs. Compassionate release programs are designed to release prisoners with terminal illnesses or those who are extremely advanced in age.
Some may argue that releasing inmates could endanger communities, but there is substantial evidence that states otherwise. In a report from 2017, the Vera Institute found that “recidivism research demonstrates that arrest rates drop to just more than 2 percent in people ages 50 to 65 years old and to almost zero percent for those older than 65” (Silber, Shames, and Reid 2017). Releasing older adult prisoners poses a very low danger to communities overall, and in cases of prisoners with debilitating health problems, many are unable to commit new crimes.
Compassionate release is not only important for the safety and well-being of the released older adult prisoners, it can also significantly reduce state spending. A report written by the ACLU estimates that “releasing an aging prisoner will save states, on average, $66,294 per year per prisoner, including healthcare, other public benefits, parole, and any housing costs or tax revenue. Even on the low end, states will save at least $28,362 per year per released aging prisoner” (ACLU 2012). Considering the number of prisoners over the age of 65, states could save a substantial sum of money by better utilizing compassionate release. The money saved by allowing prisoners to die in their own communities could be used to fund rehabilitation programs and reduce recidivism in younger prisoners.
Despite the benefits of compassionate release, these programs are incredibly underutilized, inefficient, and limited in scope. This is true at both federal and state prison systems, and in four states, compassionate release is not even explicitly legislated (Holland et al, 2018). The U.S. Department of Justice’s Evaluation and Inspections Division “found that the existing [Federal Bureau of Prisons’] compassionate release program has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided” (2013). The report argued this was due to a lack of consistent or clear standards or timelines for release, an inability to track requests, and ineffective procedures for informing prisoners about the program. States have similar bureaucratic problems. In Hawaii, for example, just under half of the prisoners who had been approved for release ended up staying in prison (ACLU 2012). Simplifying the application and review process would allow compassionate release programs to function as they are supposed to, rather than forcing eligible prisoners to stay incarcerated.
But the problems with compassionate release do not end with bureaucratic inefficiencies. The Federal Bureau of Prisons (BOP) and all 46 states that have compassionate release programs have strict eligibility requirements that severely limit the number of prisoners who are eligible for release. All states with compassionate release programs require that for prisoners to be eligible, they must have “chronic, permanent, terminal, or irreversible physical or mental illness, condition, or disease” with some states requiring further prognosis requirements, usually of six or 12 months (Holland et al, 2018). It is simply not enough for prisoners to be older adults and unlikely to reoffend– they must also have some kind of permanent illness or condition in order to be released. The last stages of life should be protected, and considering the poor healthcare system in prisons, the advanced aging of older adult prisoners, and the fiscal savings that could be made by better releasing ailing and aging prisoners, it is clear that the eligibility requirements for compassionate release should be greatly expanded to include anyone over the age of 50 who are unlikely to pose a risk to their communities.
Unfortunately, even if more older adult prisoners are released, there are a number of obstacles in the outside world that can make it difficult for them to adjust back into society. Since those who are eligible for compassionate release programs are usually 60 or older, dying, or have significant physical or mental illnesses, older adult prisoners would likely need strong support systems to help them not only adjust to life outside of prison, but also to assist with health concerns. Because many older adult prisoners are likely to have been in prison for several decades, their support systems may have crumbled as time went on. Additionally, released older adult prisoners will likely encounter a world vastly different to the one they left, and housing and other essentials can be difficult for older adult prisoners to obtain.
Ultimately, expanding and better utilizing compassionate release programs would be an important step in making the prison system more humane and would reduce the financial strain of mass incarceration places on states. The issue of compassionate release rests on an important question— why do we incarcerate people? If individuals are in the last stages of their lives and are incredibly unlikely to recommit, what do we gain by continuing to incarcerate them, especially when the older adult has spent decades in jail? These questions should be explored, and more than that, we should make efforts to allow people to die with their loved ones, regardless of their incarceration status.
- ABA Commission on Law and Aging, Persons Living with Dementia in the Criminal Legal System, July 2022, Godfrey, D., Bonnie, R, ,et al.
- ACLU. (2012, June). At America’s expense: The mass incarceration of the elderly.
- American Civil Liberties Union. Retrieved November 7, 2022, from https://www.aclu.org/report/americas-expense-mass-incarceration-elderly
- Holland, M., Prost, S. G., Hoffman, H. C., & Dickinson, G. E. (2018, August 6). U.S.
- Department of Corrections Compassionate Release Policies: A Content Analysis and Call to Action. Journal of Death and Dying. Retrieved from https://journals.sagepub.com/doi/10.1177/0030222818791708
- Nellis, A. (2022, November 1). Nothing but time: Elderly Americans serving life without parole. The Sentencing Project. Retrieved November 7, 2022, from https://www.sentencingproject.org/reports/nothing-but-time-elderly-americans-serving-life-without-parole/
- Silber, R., Shames, A., & Reid, K. (2017, December). Aging out. Vera Institute of Justice.
- Retrieved November 7, 2022, from https://www.vera.org/publications/compassionate-release-aging-infirm-prison-populations
- U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division . (2013, April). The Federal Bureau of Prisons’ Compassionate Release Program. Retrieved from https://permanent.fdlp.gov/gpo133798/e1306.pdf