A bipartisan group of U.S. senators led by Brian Schatz (D-Hawaii) has asked the Federal Bureau of Prisons (BOP) to take a fresh look at expanding compassionate release programs for elderly inmates. The attention is long overdue.
From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. Remarkably, the BOP houses more than 10,000 inmates who are in their 60s, 70s or 80s.
Older inmates have significantly higher medical costs than younger inmates. Elderly inmates also often need special accommodations (such as lower bunks or wheelchair-accessible areas) the BOP is ill-equipped to provide, according to a 2013 report by the Department of Justice’s Inspector General.
Recognizing these challenges and the fact that elderly inmates have a very low rate of committing further crimes after release, Attorney General Eric H. Holder Jr. announced in 2013 that compassionate release programs would be expanded for BOP inmates who were elderly, seriously ill or both. But as Schatz and his colleagues recently noted in a letter to acting BOP director Thomas Kane and Deputy Attorney General Rod J. Rosenstein, only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.
The senators are asking the BOP to explain why compassionate release has been so rarely granted, as well as what could be done to expand it. The scientific field of behavioral economics would suggest that at least part of the problem lies less in the merits of individual inmate cases and more in the “default” for decision-making about compassionate release.
The current default is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.
Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.
For example, all federal prisoners over the age of 70 who have served 15 years or more could be automatically granted compassionate release unless the BOP puts in the work to convince the sentencing judge that release is not justified for a particular prisoner. A different option would be to require the BOP to grant compassionate release to at least 5 percent of elderly prisoners every year, giving the bureau decisional authority only to choose which inmates would be most appropriate.
The specific rules Congress would put in place are less important than establishing the principle of assuming that compassionate release becomes the norm rather than the exception for elderly prisoners. Without such a meaningful change of course, the BOP could end up as the world’s most expensive nursing home.