Increased Number of Elderly Prisoners Makes Feds Take a Second Look at Compassionate Release



In 2014, inmates age 50 and older were the fastest growing, and most expensive, segment of the federal inmate population, largely as a result of the tough-on-crime sentencing laws enacted over the past several decades. According to the Inspector General of the U.S. Department of Justice, elderly inmates (50+) increased by 27% while those 49 and younger decreased by 3% from 2009 to 2014. In 2014, elderly inmates represent nearly 20% of all state and federal inmates.

The National Institute of Corrections found that it costs approximately twice as much to incarcerate someone aged 50 or older ($68,270) than their younger counterpart, and in some cases it can cost up to five times more. This expense is due to the additional medical/hospice care that elderly inmates require. Indeed, the Bureau of Prisons spent $1.1 billion on medical care in 2014, a 30 percent increase over the past 5 years.The aging prisoner population is having a particularly costly effect on states with large prison populations such as Florida and Texas, though the federal prison population is particularly challenged by the high level of elderly inmates as well.

Compassionate Release

The federal government, unlike many states, has a Compassionate Release program, which was created in 1984. This program allows federal courts to reduce the sentences of offenders with “extraordinary and compelling” circumstances. In order for a prisoner’s sentence to be reevaluated, the Federal Bureau of Prisons (BOP) must file a motion with a court requesting consideration for early release. Offenders can apply for Compassionate Release if:

  • They have a life expectancy of 6-10 months or less
  • They are 65 years of age or older and:
    • Suffer from chronic or serious medical conditions related to aging, and;
    • Have served at least 50 percent of their sentence.
  • Inmates 65 years of age or older without medical conditions can apply if they have served the greater of 10 years or 75 percent of their sentence.

However, according to the Office of the Inspector General, few inmates are ever released through this program. Indeed, since 1992 the BOP has only released an average of 24 inmates per year under the Compassionate Release program.

Noting the alarmingly low rate of release, there has been substantial opposition to the way the Compassionate Release program has been applied at the federal level. Namely, the absolute authority of the BOP to determine which inmates have “extraordinary and compelling” circumstances and their efficiency at doing so. In 2013, the Office of the Inspector General launched an investigation into the process of the Compassionate Release program and found that BOP does not have a formal timeliness standard for review of applications, and does not effectively inform prisoners about the existence of the program, among other problems.

U.S. Sentencing Commission Public Hearing

Earlier this week, the U.S. Sentencing Commission held a public hearing to discuss possible provisions to the compassionate release guidelines. The meeting highlighted two issues: amending the guidelines so that they are available to those who need it most, and the absolute power of the BOP to determine who is eligible.

One of the provisions of the law that was discussed at the hearing was reducing the minimum age requirement from 65 to 50. According to OIG, this would increase the pool of eligible candidates seven-fold, from 4,384 inmates age 65 and older to 30,962 (as of 2013). Further, assuming a 5 percent release rate, OIG estimates a cost savings of $28 million per year. Finally, elderly inmates are the least likely to recidivate. In a 3-year recidivism study, OIG found that elderly inmates had a 15 recidivism rate, compared to the 41 percent recidivism rate for all federal inmates.

Depending on possible provisions to the law, there are between 4,000 and 30,000 inmates that are eligible for Compassionate Release. These inmates represent the most expensive subset of offenders and the least likely to recidivate; yet, despite the low risks and high rewards only an averaged two dozen are released each year.

Whether blame should be cast on unclear eligibility requirements or a conflict of interest among BOP officials is currently being debated. What is abundantly clear is the potential impact that Compassionate Releases could have on the current budgetary and crowding burdens within our Federal prisons-if applied correctly.

The federal prison system is rated to house about 130,000 inmates, yet they currently house almost 170,000-128% of the maximum capacity (as of 2014). Overcrowding paired with the exorbitant cost provide the most basic rationale for expediting policies that release elderly inmates. Compassionate release is a start, but many bipartisan think tanks are recommending more action-like re-instating parole, decreasing mandatory minimums, and reducing the percentage of time that must be served before release. Compassionate release and related criminal justice reform efforts, such as reinstating parole, are just some of the ways the federal government can transition from being “tough on crime” to “smart on crime” when it comes to releasing elderly inmates without jeopardizing public safety.

Erinn Broadus is the Spring 2016 Criminal Justice Reform Policy Intern.