The American Civil Liberties Union (ACLU) this week sent a letter to the Department of Justice and the Bureau of Prisons calling on the agencies to immediately release incarcerated individuals, who are either elderly or have chronic health conditions, to reduce the risk posed by Covid-19. The request came as jails around the country grapple with how to respond to the growing threat of widespread infection among a vulnerable prison population.
Both public health officials and families of incarcerated people are worried about Covid-19 spreading within the close quarters of correctional facilities. Despite 37 correctional systems suspending all visitation (except for legal visits), Covid-19 continues to breach prison walls, from Rikers Island to state prisons. Some county jails are releasing non-violent offenders early. Others are halting prisoner transfers, creating a potentially dangerous “bottleneck” in jails.
But experts agree with the ACLU that one of the most effective moves prison officials can make to prevent deadly outbreaks of coronavirus is releasing early incarcerated people who are elderly or sick. The Center for Disease Control and Prevention says that people over the age of 65 and those with pre-existing health problems are among the most vulnerable. And they are the least likely to commit another crime.
Their release would also, it so happens, save states millions of dollars.
There are more older people in prison than ever before. Between 1999 and 2016, the number of people 55 or older in state and federal prisons increased 280 percent.
The cause of America’s growing elderly prison population can be traced to policies enacted decades ago. Mandatory minimums and so-called “truth-in-sentencing,” laws that abolish parole and early release, filled prisons with individuals who committed crimes in their teens or early 20s and are now approaching middle to old age.
Mary Price, general counsel at FAMM, a sentencing and prison reform organization, says that the graying prison population is partially rooted in the uncompromising sentencing laws stemming from the War on Drugs in the 1980s and 1990s.
“Everybody sort of jumped to what seems like the most obvious solution at the time, which was to impose increasingly defensive mandatory sentences and eliminate parole or limit good time reductions to those sentences,” Price said. “What you saw was a huge jump in the prison population and what you also saw were that the sentences were just longer. People are spending a longer time in prison. And so what’s happened? Prison populations are graying.”
Price also points out that many incarcerated individuals received harsh sentences based on habitual offender laws, which jail people for minor but repeat offenses.
Incarceration can exacerbate and accelerate the effects of aging. In the community, an older adult is typically someone aged 65 or older. In prison, that age is 55. Earlier than usual, these individuals experience symptoms like mobility impairment, difficulty bathing, feeding and dressing themselves, hearing and eyesight impairment, incontinence, and medical conditions like heart disease, cancer, arthritis, and diabetes.
Lack of adequate sleep, insufficient mental stimulation, and lack of friendly social interaction compounds those conditions, making daily life even more grueling. A 2018 study by BMC Health and Justice found that geriatric conditions were more common in prisoners than community-based individuals of the same age. Incarcerated individuals reported 14% more problems with functional mobility than the general population. Reports of mobility impairment, urinary incontinence, hearing impairment, falls, and multimorbidity, and life-threatening illnesses, were all higher for people in prison.
Since older individuals in prison have a much higher rate of illness, disability, and mental health disorders, states must shell out more money to provide medical care for them. In 2015, the departments of correction across the country collectively spent more than $8.1 billion on prison health services. The Journal of the American Geriatrics Society reports that healthcare costs are between three and nine times more for older incarcerated individuals than younger ones.
Despite this high level of healthcare spending, the care most incarcerated individuals receive is inadequate. The lack of qualified staff is particularly problematic for elderly people. Corrections facilities generally do not have medical staff who have expertise in geriatrics—dentures, incontinence, confusion from dementia, and pain management are issues the average prison healthcare worker is not equipped to handle. A study by the US Department of Justice found that of all inmate deaths in state prisons, more than half were of incarcerated people over the age of 55. Making the problem worse, there is little oversight of most prison health services and negligence occurs from understaffing, indifference, and sometimes, outright abuse.
Now, the pre-existing conditions associated with “accelerated aging” and the lack of adequate healthcare in facilities for even regular health problems makes the spread of Covid-19 in prisons even more likely. Basic necessities such as soap and toilet paper are often hard to come by in prison, hand sanitizer is treated as contraband, and seeing a doctor is considerably harder than in the community.
The release of elderly or sick prisoners is sometimes called “compassionate release” or “conditional medical release.” Incarcerated people or their families often must submit a written request for compassionate release and then be granted approval by corrections officials after a thorough review of the individual’s eligibility.
Many states have provisions and statutes that allow for this but those laws are rarely, if ever, used and when they are, the process is opaque. Eligibility is often predicated on how terminal an incarcerated individual’s illness is. This creates a “catch-22”. If compassionate release is requested and granted too late, the person would die in prison. If it is requested too early or when a diagnosis is first given, that person would be denied eligibility for being too healthy. In 2015, more than 3,000 inmates applied for compassionate release and only 216 were granted release.
Many incarcerated individuals see dying—often in shackles—as their only path out of prison. The Marshall Project reported that the Bureau of Prisons often drags out the process to such an extent that the individual dies before the request for compassionate release can be granted.
Brie Williams is a professor of medicine at University of California, San Francisco and the director of the Aging Research in Criminal Justice and Health (ARCH) network, a group of multidisciplinary researchers that looks at the intersection of aging, serious illness, and the criminal justice system. “There are a lot of different ways to meet out justice,” Williams said. “And one of those ways is incarceration. It happens to also be by far the most expensive.”
Williams, who also is the director of AMEND, a nonprofit that aims to transform corrections culture within prisons and jails, argues that incarceration should be looked at as a limited resource and as people age, utilizing that resource as a means of justice should be reevaluated. “Most people will begin to have more medical conditions and at that point we should take a second look and decide whether the limited resource of prison is the right punishment or use of the criminal justice system for this person.”
Recidivism rates among formerly incarcerated older adults remains the lowest of any population involved in the criminal justice system. Research by the Vera Institute of Justice shows that individuals aged 50 years or older are less likely to return to prison than younger people. Human Rights Watch found that from 2000 to 2006 inmates who were under age 55 at the time of release were twice as likely to return to prison within three years of release with a new offense—not because of parole violations— than prisoners released at age 55 and over.
Reggie Garcia, a Florida-based clemency and parole attorney and author of How to Leave Prison Early, highlights the urgency of state departments of correction focusing their efforts on releasing the most at risk. “Covid-19 can be terminal for certain high risk inmates with respiratory problems or otherwise weak immune systems, so the FDOC [Florida Department of Corrections] and FCOR [Florida Commission on Offender Review] should expedite those conditional medical release cases,” Garcia said.
What comes next
Price points out that things are moving in the right direction despite the increasing number of aging incarcerated individuals. “It’s the most activity I think we’ve seen in a while. So, I think people are beginning to understand as they did around sentencing that keeping people locked up for a long time is super expensive. And keeping people locked up and medically cared for is really expensive,” Price said. Treating older people for coronavirus behind bars would only increase the cost of healthcare.
In the past few years, long-term solutions have been at the forefront of legislation. In December 2018, US president Donald Trump signed the First Step Act, a criminal justice reform bill that reduced federal sentences and release individuals imprisoned for crack cocaine convictions. The bill received bipartisan support and signified a small but meaningful step in the right direction.
Criminal justice reform bills with provisions for elder release are on 2020 ballots in many states. In Florida, lawmakers are now considering two proposals that would expand the use of conditional medical release and allow for elder release. Virginia governor Ralph Northam is pushing to reinstate parole for the state’s 35,000 inmates who require more specialized healthcare as they age. But the state’s bill, which would have allowed for the release of individuals who are terminally ill or disabled, fell flat. Missouri lawmakers are considering a bill that would allow incarcerated individuals aged 65 or older, who have been sentenced to life without parole to get a parole board hearing and make their case for release. Around the country, state legislators are floating a spectrum of elder release bills.
The Release Aging People in Prison campaign aims to apply pressure to New York State Parole Board appointees to approach parole choices with a less punitive mentality. These appointees should be social workers, psychologists, nurses, and other professionals who do not have any incentive to keep people locked up. The campaign has also written two bills: one is designed to grant parole consideration to incarcerated individuals over the age of 55 and the other is to ensure a “fair and timely” parole process that evaluates an individual’s rehabilitation since the time of their conviction.
Despite the work being done by lawmakers, however, the spread of coronavirus is something correctional officers are unprepared to handle and requires immediate action. Williams argues that state correctional facilities were originally designed to “manage the healthcare needs of much younger people who have far fewer serious chronic conditions.”
“I have seen patients in prisons who do not know their name confined to a wheelchair, literally paralyzed from the neck down. It doesn’t make sense. It just doesn’t make sense,” she said.