The US is home to nearly one out of every four prisoners in the world. There are 2.1 million prisoners in the US, including 1.2 million people incarcerated in state prisons. Nearly 180,000 are behind federal prison bars, and 704,500 are in local jails. The number of US prisoners serving life sentences is four times of what it was in 1984.
In light of a system that is not only immoral and unethical, but also ineffective and unsustainable, these circumstances cry out for decarceration. One avenue that would lead to the freeing of significant numbers of people is increasing the use of compassionate release. The early release of elderly and ill prisoners is an effective way to affirm human dignity and morality, and to move the nation toward decarceration.
The last four decades saw a burst of mandatory sentencing laws put on the books, a ramping up of a “war on drugs” and truth-in-sentencing convictions, which require that people serve most of their sentence on the grounds that this is necessary for justice to be served. This has culminated in a US prison population explosion overwhelmingly impacting communities of color, particularly Black communities.
As former industrialized towns and cities experienced economic shifts and underinvestment resulting in job loss and decay, politicians passed harsh policies and gave the green light to law enforcement to target poor people and people of color. From the 1970s on, the trope of “tough-on-crime” policies took off. Prosecutors and judges threw the book at violent and nonviolent offenders, sentencing them for years to come. The criminal legal system began snatching away the primary and future breadwinners of families of color and the poor, sliding these communities further into the cycles of extreme poverty, despair and a higher likelihood to interact with the punitive justice system.
The US may be lessening its grip on harsh sentencing of late, such as the recently enacted federal legislation easing mandatory minimum sentences, but the damage has been done. People who started serving mandatory life sentences 30 years ago are still behind bars.
Mass incarceration has contributed to a mass graying out of US prison rolls. More than 131,000 people age 55 or over are imprisoned in state institutions, at an annual cost of $9 billion.
Between 1993 and 2013, state prison populations increased 55 percent. During that time, the proportion of prisoners 55 and older increased 400 percent. By 2030, US prisons are on pace to house more than 400,000 individuals who will be 55 and older.
These elderly prisoners have complex and expensive medical needs.
The Federal Bureau of Prisons found that federal institutions with the highest percentages of aging individuals spent five times more per prisoner on medical care and 14 times more per individual on medication than those with younger prison rolls.
Even by the system’s own logic, these prisoners don’t serve a public safety threat, so why not let them out? Most states have compassionate release programs, but they’re rarely employed.
Compassionate release is a humane, sensible and just concept. According to Families Against Mandatory Minimums (FAMM), compassionate release serves “to shorten a prisoner’s sentence when circumstances such as imminent death or significant illness lessen the need for, or morality of, continued imprisonment.” Compassionate release participants have a recidivism rate of only 3.5 percent. Yet, despite the impressive potential savings, compassionate release is rarely used, and consequently, is having little impact.
Forty-nine states and the District of Columbia offer compassionate release, geriatric release and medical parole. However, only three states — Texas, Utah and Louisiana — freed more than a dozen people under these programs in 2015. Most states released fewer than four applicants, and only 216 of 3,030 applicants were approved. Typically, the low acceptance rate is due to individual state statutes, which may preclude certain offenses or sentences, require imminent death, and may not reflect input from physicians who treat geriatric and end-of-life patients.
Many states’ application processes are lengthy and slow, and fail to grant release before the death of the person seeking it. Others do not apply to those who would most benefit from them. For example, Wisconsin bars people convicted of the most serious felonies, people with life sentences, and those who committed crimes on December 31, 1999 or later. However, federal statistics show that only 1 percent of convicted murderers reoffend.
Further, many prisoners and families are unaware that compassionate release programs exist, and prison officials themselves are uncertain of the policies.
On the federal level, compassionate release was introduced with the 1984 Sentencing Reform Act, which authorizes federal courts to reduce sentences of federal prisoners for terminal illnesses and other “extraordinary and compelling reasons.” However, between 1992 and 2012, only 492 people were released under compassionate release. Between 2013 and 2017, a mere 6 percent of 5,400 applicants were approved, and 266 of these applicants died in custody. The Bureau of Prisons is an early release gatekeeper, limiting eligibility to those with a life expectancy of up to one year, encroaching on the court’s discretionary power, and ignoring input from doctors and wardens.
Implementing early release must consider the various ways people experience grave illness; allow applications from prisoners with severe impairment or months to live; determine early release based on age and time served; and provide resources and support to combat post-release mortality.
Aging prisoners and stage 4 cancer patients sleeping within the confines of odor-plagued concrete cells are a stark reminder of mass incarceration’s ongoing toll.
These prisoners remain locked up not because of a lack of policies and evidence supporting early release but the consequences of a brutal regime targeting the US’s vulnerable.
Carrying out compassionate release upholds human dignity and medical ethics rather than policies based on vengeance, retribution and human warehousing. States and the federal government should take note: The time is now to expand compassionate release.