Summary of the Problem: The nation's state and federal prison systems, already straining as they handle more and more prisoners sentenced to longer and longer terms, are confronting the complicated and costly problem of a growing population of elderly prisoners.  Because of mandatory minimum sentences, "three strikes" laws, and limited grants of, or outright elimination of parole, more inmates are growing older in prison than ever before.  Many new prisoners in their 20s, 30s, 40s and even older enter prison to serve decades-long terms.

            A 2004 report by the National Institute of Corrections found that the number of state and federal prisoners ages 50 or older rose 172 percent between 1992 and 2001, and some estimates suggest that the elderly inmate population has grown by as much as 750 percent over the last two decades. Most estimates suggest that the population of elderly inmates will represent 33 percent of the total prison population in the near future.

            The average cost of housing the increasing number of elderly inmates has been estimated at approximately twice that of younger prisoners, largely due to health-related expenses. Often they require treatment for chronic and terminal diseases, protection from younger prisoners, mental health care, and physical plant alterations to accommodate walkers, canes, and geriatric chairs. Neither federal nor state facilities are currently meeting the healthcare needs of elderly prisoners or investing needed capital in adapting prison facilities to accommodate their needs.  These current cost factors, a burgeoning elderly prisoner population, and a realistic assessment of the adequacy of projected increased resources to address them, call into question the wisdom of committing such vast economic resources for the continued punishment of older prisoners, the group with the lowest recidivism rate of any segment of the prison population.

            The incarceration of older prisoners, who represent the smallest threat to public safety but the largest cost to taxpayers to imprison, exemplifies failed public policy that favors imprisonment over more cost-effective alternatives. The current strategy of incarcerating elderly inmates who are no longer a threat to the community is a waste of government resources and a humanitarian failure, and the problem only worsens as the elderly prison population grows. Forty one states already offer some kind of early limited release program for elderly inmates, and Congress this year established a federal pilot program through the Second Chance Act providing for the release to home confinement of some elderly federal inmates. The next Congress should build the groundwork to expand the elderly prisoner release program toward an eventual policy favoring eligibility for release of all non-violent prisoners over age 55.

Proposed Solutions: 

            Legislative Changes:  Amend provisions of the United States Code to expand duties of the BOP to establish early release programs for elderly prisoners, and extend related authority of the U.S. Attorney General to authorize early release of all eligible elderly offenders from the BOP to home detention. 

• Amend duties of Bureau of Prisons, Section 4042(a) of Title 18, United States Code
• Amend authorization of Attorney General to release eligible elderly offenders, Section 3624 of Title 18, United States Code

            Hold Judiciary Committee hearings on the issue of healthcare and prison conditions for elderly prisoners and state programs aimed at early release.  Draft/introduce an "elderly prisoner release" bill that would authorize federal programs at all BOP facilities and provide funding for grants to states to develop/expand programs for early release for elderly prisoners.

Jurisdiction:

            Executive Branch:  Department of Justice, Bureau of Prisons

            Legislative Branch:  House and Senate Judiciary Committees and House and Senate Appropriations Committees  

Background:

            Legislative Branch:  The Second Chance Act, signed into law in April 2008 (P.L. 110-199), represents a bipartisan effort to reduce recidivism rates.  It was supported by an extraordinarily broad coalition of advocates, corrections officials, faith-based organizations, liberals, and conservatives.  The Act includes a pilot program for elderly federal prisoners called the Elderly and Family Reunification for Certain Nonviolent Offenders that authorizes Bureau of Prisons (BOP) to set up one or more demonstration projects at a BOP facility for qualified individuals (individuals who are 65 years or older; serving a term of imprisonment that is not life imprisonment and based on conviction for an offense or offenses that do not include any crime of violence, sex offense or offense described in USC 18 § 2332b(g)(5)(B) or USC 18 chapter 37; who have served the greater of 10 years or 75 percent of the term of imprisonment, and who meet certain additional other criteria).  BOP must find that the release of individual eligible elderly prisoners to home detention would result in a substantial net reduction in costs to the federal government, and that the individual poses no substantial crime risk or danger to any person or the public if released to home detention. Authorization for the pilot program runs through fiscal year 2010.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies:  American Bar Association, American Civil Liberties Union, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, the Constitution Project, Open Society Policy Center, The Sentencing Project, Center for Community Alternatives, International Community Corrections Association, Prison Legal News, International CURE, Virginia CURE, Federal Public and Community Defenders, corrections officials, some law enforcement officials, faith-based organizations, organizations focusing on re-entry

            Potential Opposition:  Bureau of Prisons, some corrections officials 

Experts: 

• Margaret Colgate Love, ABA Commission on Collateral Sanctions
• James Felman, ABA Criminal Justice Committee
• Jonathan Turley, Professor, George Washington Law School
• Ronald M. Shansky et al., authors of NIC report on correctional health care for elderly and ill inmates (see below).

For Further Information:

As noted above, a leading report issued by the National Institute of Corrections in 2004, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates, can be found (with numerous related studies) online at www.nicic.org/library/018735.  

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf