Courtesy Dzung Viet Le/
United States / Criminal Justice

Aging Inmates, Little Release

Note: This is the third piece in a series examining criminal justice in America. Read the introduction here and the second piece here.

American prisoners are getting old. Harsh sentencing laws from the 1980s and 1990s mean that more inmates are reaching retirement age behind bars. These aging inmates are forcing some prisons to provide hospital-like care—a cost that is passed onto taxpayers. And although the elderly are rarely a danger to society, state programs designed to encourage early release of aging prisoners have largely been met with resistance, despite anecdotal evidence of success.

A 2012 ACLU study estimated that nearly 250,000 prisoners (about 11 percent of the total prison population) were over age 50—the benchmark that the National Institute of Corrections uses to define “aging” or “elderly” because prisoners are typically less healthy than average Americans, due to conditions both before and during incarceration. More troubling, the number of prisoners over age 65 grew 94 times faster than the total prisoner population (63 percent compared to 0.7 percent) between 2007 and 2010, according to data from the Bureau of Justice Statistics and calculations from Human Rights Watch.

Keeping aging prisoners behind bars poses serious financial costs. The same ACLU report found that inmates over age 50 cost the state on average $68,270 per year, compared to $34,135 for a typical inmate. And while prisons have expanded medical and hospice services in recent years, they are hardly well-equipped as healthcare facilities.

From a public safety perspective, there is little benefit to incarcerating elderly inmates. The recidivism rate for aging prisoners is substantially lower than that of the remaining prisoner population. A survey from the Department of Health and Human Services found that just 15 percent of aging prisoners who were released from federal prison committed another crime within three years, compared to a 41 percent arrest rate among all former federal prisoners. State-level data also indicate that older prisoners are more likely to be nonviolent. In Texas, for example, 65 percent of elderly prisoners are incarcerated for a nonviolent crime, compared to about 45 percent of the total prison population.

The legal framework to reduce the elderly prison population already exists. Forty-five states, the District of Columbia, and the federal government allow for some form of compassionate or geriatric release—letting prisoners out early based on their health status or age if they are deemed no threat to society. In theory, aging or ill inmates can be released to a relative, nursing home, hospice facility, or other living situation at the discretion of corrections officials.

Irving Faunce has witnessed the benefits of early medical release in the state of Maine. Faunce has worked as a nursing home administrator for years; on four occasions, facilities where he works have cooperated with the Maine Department of Corrections (MDOC) in releasing ill inmates from prison into supervised community confinement.

The first ex-inmate to come through was a terminally ill man who was a registered sex offender, having been convicted of child sex abuse.

“The social worker had tried several facilities, all of whom said no,” Faunce said.

Although the nursing home where Faunce worked at the time was near an elementary school, officials from the nursing home and the state agreed that the man posed no threat. His time at the facility passed without incident.

“He obviously was bedridden,” Faunce said. “He was not about to get up and about.”

The other ex-inmates Faunce encountered have included a man paralyzed by a fall and two brothers with Huntington’s disease, which had severely limited their mobility and confined them to the prison infirmary. Although Faunce found supervised community confinement to be successful each time, programs that allow for the conditional release of aging and ill inmates are rarely used, both in Maine and nationally.

From a financial standpoint, state-level departments of corrections have incentive to seek compassionate release and find alternatives to incarceration for elderly prisoners. Inmates are not eligible for Medicare, Medicaid or Social Security, but ex-prisoners released into community confinement are.

Public opinion remains a serious barrier to expanding release programs. A 2004 survey in Pennsylvania found that just 45 percent of residents supported early release or parole for chronically or terminally ill inmates who posed no threat to society. Finding nursing homes or hospice facilities willing to take ex-prisoners can be a difficult task.

“I don’t sense that many are clamoring to provide this service,” Faunce said.

No simple policy can change attitudes about releasing ill and elderly inmates. But as America’s prison population continues to grow older, the costs of incarceration will likewise continue to rise. Expanding compassionate and geriatric release would provide some inmates with the dignity of dying outside of prison at little cost to public safety. It should be part of the policy conversation.