As discussed in this issue’s lead story, China’s medical parole system has served as a road to release for prisoners with chronic medical problems, perhaps most notably Chinese political prisoners with health conditions that were not actually life-threatening. Many other countries have mechanisms in place to release prisoners facing extraordinary health issues. In the United States, where healthcare costs are skyrocketing at the same time that the prison population in the country is aging, humanitarians and fiscal pragmatists across the country are joining forces to try to expand the use of policies intended to release more of the oldest, sickliest, and costliest prisoners.
More than two-thirds of US states have some form of compassionate release, which can only be considered for a terminally ill inmate with a short time left to live (typically less than either one year or six months, depending on the state). Critics of compassionate release hold that prison itself is a form of punishment and the possibility of death behind bars is part of the package. But in most states, death row prisoners and those serving life sentences are excluded from compassionate release; in other words, those sentenced to die in prison would not be extended clemency anyway.
Policies Rarely Lead to Prisoner Releases
For prisoners who qualify for compassionate release, the process for review and approval of applications is quite onerous and usually requires approval throughout the entire prison administration—and sometimes from the original sentencing judge and parole board as well. With so many layers of bureaucracy and so little time, only a handful of terminally ill prisoners actually gain early release.
Some states have policies that allow for the release of not just the terminally ill, but also the aging and chronically sick. Fifteen states have geriatric release programs that allow for the release of older inmates. In most of these cases, the inmate must also have chronic medical or mental healthcare needs and have served a specified portion of his sentence. However, these provisions are rarely put to use. Oklahoma and Maryland, for example, have never released a prisoner under their laws that govern geriatric release.
The Federal Bureau of Prisons (BOP), which houses about 10 percent of prisoners in the United States, has perhaps the most generous program, at least on paper. It allows for the release of not only infirm prisoners, but also those who face family catastrophes such as the loss of other caregivers for young children. In 1984, Congress passed the Sentencing Reform Act, which eliminated parole in federal prisons. In an attempt to create some protection for inmates who were facing extraordinary circumstances but could not receive parole, Congress also passed a bill that provides that a “court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment” if “extraordinary and compelling reasons warrant such a reduction” or the defendant is at least 70 years of age, has served at least 30 years in prison, and is determined to be no longer a danger to society.
In November 2007, the US Sentencing Commission, created by the 1984 act, published guidelines clarifying that “extraordinary and compelling reasons” include not only terminal illness, but also physical and mental conditions or aging that permanently diminishes a prisoner’s capacity for self-care, the death or incapacitation of a prisoner’s only family member capable of caring for the prisoner’s minor child or minor children, and other matters as determined by the Director of Prison Bureaus. In other words, the BOP has broad discretion to release prisoners in need, but it has refused to implement these broader guidelines, and has never released a non-terminally ill prisoner under this law.
Aging Prisoners, Rising Costs
The BOP’s reluctance to make more use of its power to release individuals with extraordinary needs is perplexing given the challenges that both state and federal prisons face from sick and aging prisoners. The US population is getting older and health costs are rising nationwide, but this trend is particularly pronounced in prisons. According to the Bureau of Justice Statistics, the number of elderly prisoners grew more than 75 percent between 1999 and 2007, making elderly inmates one of the fastest growing segments of the correctional population. (“Elderly” is generally defined in the corrections field as over 55 years old, though it is defined in some states to be as young as 50, and in others as old as 70.)
Nationally, elderly prisoners cost about $70,000 per year to incarcerate—two to three times as much as their younger counterparts. There are numerous reasons for this. As in the free population, people naturally experience more health problems as they age. People who enter prison are, on average, less healthy than the population at large, due in part to high rates of drug and alcohol abuse prior to incarceration. Also, prisoners “age faster”: owing to physical and mental stress experienced behind bars, they are, on average, seven to 10 years older physiologically than they are chronologically. In addition, the cost of caring for prisoners is far higher than the cost of caring for patients in free society because prisoners require a guard detail and transportation to and from off-site hospitals.
For policy-makers in cash-strapped states, programs that release or parole sickly and expensive prisoners make good fiscal sense on two fronts. First, states save on the costs of incarceration. Second, medical fees for state prisoners come from state funds, but in free society these individuals generally receive federally-subsidized healthcare, further shifting the burden away from local coffers. Policy-makers also know that paroling older inmates is a safe bet from a public safety perspective: the recidivism rate for 18-to-29-year-olds is over 50 percent, but the rate of recidivism for prisoners over the age of 55 is less than two percent.
California Considers Medical Parole
California’s massive prison system makes it a bellwether for correctional changes across the country. The state claims the nation’s largest prison population (170,000 prisoners) as well as the costliest (California’s annual prison budget exceeds $10 billion). California’s prisoners are also getting more expensive as they age. There are twice as many inmates in the state over the age of 55 as there were a decade ago, and the number of prisoners over 60 is expected to triple in the next eight years. At the same time, healthcare for inmates cost California almost $2 billion in 2009, twice as much as in 2006.
In California, 1,300 prisoners have annual healthcare costs that exceed $100,000 per individual. Of these prisoners, a small number are permanently incapacitated, many either physically paralyzed or in vegetative states. Remarkably, just 21 such prisoners cost the state more than $40 million a year. These inmates are housed in care facilities outside prison, but still require 24-hour guard. California is already stretched for prison guards. Medical guard overtime costs the state $66 million a year, and posting round-the-clock guards for a single prisoner adds up to several hundred thousand dollars annually.
California also has a compassionate release program, but it only applies to terminally ill patients, not the chronic care prisoners described above. A bill currently before the state’s Senate Appropriations Committee would allow for medical parole in these extreme cases. The bill’s author estimates that it would apply to about 700 inmates. Such a bill, if passed, may set an example of both compassion and fiscal responsibility that other states would be wise to follow.