Matthew T. Mangino
March 9, 2018
Prison inmates age at an accelerated rate when compared to people living outside the prison walls. The health of a 50-year-old person in prison is comparable to the health of a 65-year-old. That is not a good thing, especially when you consider nearly every state and the federal government are seeing an increase in elderly prisoners.
According to The Pew Charitable Trust, in Virginia for instance, 822 state prisoners were 50 and over in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.
The aging population and increasing number of inmates with chronic health conditions in prisons have led states and the federal government to adopt measures that could result in the compassionate release of some of those prisoners.
Unfortunately, the release of ailing inmates has been anything but compassionate. Due to the slow and cumbersome nature of the process and high denial rates, many infirm and terminally ill inmates die waiting on decisions.
According to a recent investigation by The Marshall Project and the New York Times, from 2013 to 2017, the Federal Bureau of Prisons approved six percent of the 5,400 applications for compassionate release, while 266 inmates who applied died in custody awaiting a decision.
Congress created compassionate release as a way to release certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer. Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing and elderly inmates who pose little risk to public safety, reported the Times.
In 1984, the federal government abolished parole. Instead of indeterminate sentences, with a minimum and maximum, the feds adopted determinate sentencing or a flat sentence of specific duration. After abolishing parole, according to the Times, Congress created compassionate release as a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances.
A 2015 study entitled “The United States Compassionate and Geriatric Release Laws,” found of the 50 states, District of Columbia and federal government 47 have some legal procedure or precedent for incarcerated people or their families to petition for early release based on advanced age or health. Only five corrections systems — Illinois, Massachusetts, South Carolina, South Dakota, and Utah — do not have statutory schemes for early release.
California is one of those states with compassionate release. Inmates who are terminally ill and have six months or less to live, or those inmates who are incapacitated or in a vegetative state and require 24-hour skilled nursing care, are eligible.
According to the Monterey Bay Justice Project, during a period of 12 months between 2016 and 2017, in California’s only correctional hospice unit, 53 qualified inmates applied for compassionate release. “We had six granted but some died before release,” said Reverend Keith Knauf, director of Pastoral Care in the Hospice Unit.
The failure to utilize compassionate release to its full potential has particular importance today.
The U.S. prison population continues to age — the number of prisoners age 55 or older has more than doubled, while at the same time the overall prison population has declined by three percent.
At the same time, older prisoners generate about three to nine times the cost of younger prisoners, as national prison costs have exceeded more $80 billion a year.
Compassionate release is not only economically sound it is morally the right thing to do. Terminally ill, handicapped and infirm inmates are generally not a threat to society and although they have been convicted of a crime they are entitled to some dignity as they, and their families, deal with the anguish of failing health and the end of life.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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