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“If the Risk Is Low, Let Them Go”: Efforts to Resolve the Growing Numbers of Aging Behind Bars

(Image: Prisoner arm via Shutterstock)

Imagine your grandparents and great-grandparents in shackles or dying behind bars. By 2030, the prison population age 55 and over is predicted to be 4,400 percent more than what it was in 1981. Some state and federal prison systems look at alternatives.

The recent release of 74-year-old Lynne Stewart has made headlines. Stewart, who was diagnosed with breast cancer in 2005, was granted compassionate release December 31, 2013, after a protracted struggle by Stewart and supporters across the country. Stewart, whose cancer has spread to her lungs, lymph system and bones, will spend her remaining months with her family in Brooklyn.

But what about the aging and infirm people incarcerated nationwide who lack Stewart’s fame and support? The United States has some 125,000 prisoners age 55 and older, quadruple the number in 1995. Various human rights groups, including the ACLU, Human Rights Watch and the Vera Institute of Justice have issued warnings about the increased numbers of aging, elderly and incapacitated behind bars. In response to these increases, several states, such as Kansas, Mississippi and Tennessee, are in the process of building hospice and geriatric units within their prison systems.

But what other solutions are there?

“If the Risk is Low, Let Them Go”

In New York, advocates – including formerly incarcerated people – have launched the Release Aging People in Prison (RAPP) campaign. More than 9,200 people (nearly 17 percent) imprisoned in New York are 50 or older. While the state’s prison population dropped this past decade – from 71,466 in 2000 to 56,315 in 2011 – the number of people 50 and older has increased by 64 percent. Lead organizer Mujahid Farid knows the obstacles facing people seeking parole. Farid was arrested in 1978 and sentenced to 15 years to life for an attempted murder. By the time he was eligible for parole in 1993, he had earned four college degrees as well as certificates for numerous other programs. None of these accomplishments mattered. He was denied parole based on his 1978 conviction. Farid appeared before the parole board ten times over the next 18 years before he was granted parole in 2011.

“I realized it wasn’t personal,” he told Truthout. “They’re not looking at your personal development. They’re simply looking at your conviction.” After his release, Farid met with advocates, including other formerly incarcerated people, to discuss how to overcome the hurdle within the parole system. Out of these discussions came RAPP. Under the slogan “If the risk is low, let them go,” RAPP mobilizes to change the routine in which parole and compassionate release are denied to those who have spent decades in New York’s state prisons.

Laura Whitehorn spent 14 years in the federal prison system. “I’ve had friends who have died in prison,” she told Truthout. “It’s heartbreaking.” Because the federal Bureau of Prisons is under no obligation to house prisoners close to their communities, family members often are unable to see dying loved ones incarcerated across the country. Those able to make the journey have limited visiting – and always with an armed guard in the room. “Kids need to be pat-searched to visit their parents and grandparents,” Whitehorn remembered.

Farid and Whitehorn note that, in New York state, releasing many aging prisoners does not require new legislation. A 2011 executive law directed the parole board to begin using risk-assessment tools when making decisions, but the Division of Parole did not post new regulations complying with the law until December 18, 2013. “The risk of committing a new crime is about 5 percent for older people, compared with an overall recidivism rate of nearly 40 percent,” Farid stated. “If the parole board followed the law, many of the men and women would safely be released, saving millions of dollars a year in unnecessary medical and custodial costs.”

One of RAPP’s first initiatives has been a public education campaign. “A lot of activities going on with parole are so outrageous, but [parole board members] get away with it because the public doesn’t know,” Farid said. RAPP volunteers have visited churches and community boards. The response has been positive. The Queens Federation of Churches has agreed to support RAPP’s campaign. Churchgoers have attended RAPP’s monthly meetings and invited RAPP volunteers to theirs. Whitehorn approached her local community board, which has a committee on aging. “I thought they’d say, ‘Oh, no! Not another thing to take on!’ But they jumped at it,” she recalled. Another time, she spoke about RAPP at a panel on the Affordable Care Act at a geriatric home. People flocked to her table to sign RAPP’s petition to the parole board. Whitehorn distinctly remembers one woman with a cane, who told her, “I don’t like the idea of people like me being in prison.”

The California Elderly and Elderly-Lifer Alternative Custody Program

In California, Jane Dorotik has been pushing for an elderly alternative custody program. Inside its prison system, prisoners age 55 or older increased by more than 500 percent between 1990 and 2009. According to Human Rights Watch, that number is projected to increase to 15 percent of California’s prison population by 2019.

In 2012, having seen the effects of keeping aging people in prison, Dorotik, who has been incarcerated since 2001, drafted a proposal for an elderly and elderly-lifer alternative custody program. Dorotik notes that lifers (those serving life sentences) now represent one-fifth of the state’s prison. She also notes that many, particularly those in the women’s prison population, have been sentenced for a single action committed many years ago and that lifers have an 18 percent chance of being granted parole.

Unlike RAPP, Dorotik is not pushing for parole. Instead, she is advocating that people 55 or older be released under supervision, including ankle monitoring. They remain under the custody of the California Department of Corrections and Rehabilitation (CDCR) and can be returned to prison at any time. Dorotik proposes a pilot program at the California Institute for Women, where she is housed, for those age 55 and older. In addition to age, women must:

– Have been incarcerated for at least seven years or 50 percent of their sentence (whichever is greater).

– Have no previous history of felony convictions.

– Have had no serious disciplinary actions against them in the last five years.

– And have secured placement in the community.

Dorotik notes that nearly 140 people at CIW are over 55. Each costs $138,000 per year to keep behind bars. The vast majority of these “Golden Girls” meet the above criteria.

But it’s not just the financial cost that concerns Dorotik. She’s seen the human cost of keeping the aging people imprisoned. In 2006, Dorotik wrote an open letter to state legislators urging them to expand the use of compassionate release. “Compassionate release is an available alternative to dying alone and isolated behind prison walls,” she wrote, “but it is almost never granted by the CDCR bureaucracy.” She pointed to the (then-recent) death of 63-year-old Annie Castiglione, who had been sentenced to Life without the Possibility of Parole. “She was a model prisoner and spent her years behind bars helping others. She died the other evening alone and overlooked in the prison’s skilled nursing facility. …

“Take a moment now and remind yourself how it must feel to die alone,” Dorotik urged. “In fact, take only slightly more than a moment – take 93 seconds of silence. That is one second for every day Annie waited hoping compassionate release might be granted.”

More recently, Dorotik has described other women languishing behind bars in their 70s and 80s. Seventy-one-year-old Doris, for example, recently spent 61 days in administrative segregation (a punitive form of solitary confinement) after an officer found an additional two to three rolls of toilet paper in her cell. “As Doris got up to placate the yelling [correctional officer], she may have touched the CO’s arm. After all,” Dorotik reflected, “balance at age 71 is sometimes a problem. All the women in the hallway verified there was no ‘assault,’ and the CO continued to search for excess toilet paper for another ten cells and half an hour before alleging the assault.” When he did, Doris was sent to segregation. An assault charge was placed on her record.

That assault charge now eliminates any chance that Doris may have had when appearing before the parole board, increasing the chance that Doris may die behind bars. Dorotik also recounted the story of Helen, another Golden Girl whom the parole board refused to release. Sentenced to life for transporting money for her son, Helen spent the last years of her life with failing kidneys. “She was taken out twice a week for dialysis treatment, hands and feet shackled, a guard on each side of her.” When Helen, at age 85, appeared before the parole board, the board deemed her a risk to public safety because she “didn’t have firm enough employment plans.” The following year, at age 86, Helen died alone and unnoticed in prison.

Unlike RAPP’s efforts, Dorotik’s Alternative Custody Program will require new legislation. She has reached out to and been working with advocacy groups such as Californians United for a Responsible Budget, JusticeNow and Legal Services for Prisoners with Children to push her proposal. Advocates from these groups have met with California legislators, including Senator Carol Liu, who drafted California’s first Alternative Custody Program.

How Connecticut Is Addressing Its Aging Prison Population

Currently and formerly incarcerated people and prisoner rights advocates are not the only ones pushing for releasing elderly people in prison. As of January 6, 2014, Connecticut’s Department of Correction (DOC), which is responsible for its local jails and state prisons, held 387 people ages 60 and over. “Many have cognitive impairments,” described Dr. Kathleen Maurer, DOC’s director of health services, at the Health Behind Bars conference in October 2013. Some require round-the-clock care.

Instead of building assisted-living or nursing homes within its prison system, Connecticut lawmakers passed legislation in 2012 allowing the DOC commissioner the discretion to release the severely incapacitated for “palliative and end-of-life” care. Faced with the challenge of where to place people whose lengthy sentences had eroded family ties, the state’s Department of Corrections (DOC) and Department of Mental Health and Addiction Services (DMHAS) partnered to contract with a privately run home specifically for their populations. The result was 60 West – a 90-bed nursing home in Rocky Hill, a city south of Hartford.

Although 60West accepts patients only from DOC and DHMAS, Maurer is quick to point out that 60West is not a prison. “It’s not run by DOC,” she emphasized during her presentation at the October 2013 Health Behind Bars conference. “A parole officer supervises the people [released from] DOC, but there are no correctional officers. It’s run exactly like any other nursing home in the state.”

To qualify for release into 60West, an incarcerated person must meet one of these criteria:

– Be at the end of his or her sentence with no other option for housing or care.

– Have a prognosis of six months or less.

– Have served half of his/her sentence and have a terminal or incapacitating illness.

Each person also must pass several assessments, including a medical evaluation and a criminogenic risk assessment, including a review of the need for a nursing-home level of care with the expectation of requiring long-term placement; a review of historical factors requiring placement at 60West; and the ability to be safely managed in a nursing home. The DOC commissioner makes the final decision on release. “Once they leave the facility, they’re not prisoners. They’re residents of the nursing home,” Maurer said.

In addition to allowing people to live their last months or years outside of prison, 60West has enabled the state to transfer the cost of care from DOC to Medicaid. “Eighty to 90 percent of our incarcerated population would be Medicaid-eligible,” Maurer stated. However, because jails and prisons are required to provide medical care, incarcerated people are not eligible for Medicaid coverage unless they undergo treatment in an outside medical facility for 24 hours or longer.

Beginning in April 2010, Connecticut extended Medicaid benefits under the Medicaid for Low-Income Adults (LIA) program. “Eligibility for LIA was 56% of the federal poverty level and there was no asset test,” Mary Mason, the DMHAS public relations manager, explained in an email to Truthout. “Since April 2010, many individuals being discharged from prison were able to access expedited LIA eligibility. This allowed Connecticut to receive 50% reimbursement for services that had previously been 100% state funded.”

Given that the patients at 60West are no longer incarcerated, Connecticut is able to apply Medicaid funding to their care. “The level of care being provided by DOC in infirmaries can be more appropriately and less expensively provided in a nursing home setting,” Mason pointed out. Since its opening in spring 2013, 30 people have been released from Connecticut’s prison system to live their last days at 60West. There are currently ten patients who had been DOC prisoners at 60West. Despite concerns of Rocky Hill locals, Maurer added, there have been no incidents.

“By 2030, the prison population aged 55 and over is predicted to be 4,400 percent more than what it was in 1981,” Laura Whitehorn pointed out. “Everyone should picture their grandparents and great-grandparents. Now imagine them in shackles. Imagine them handcuffed to their walkers. Imagine them dying behind bars.”

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