One of the pillars of B’nai B’rith International is our Center for Senior Services (CSS), which  focuses on issues that impact older Americans.  Throughout my time working at CSS, I have written about a variety of traditional topics that touch the lives of seniors like Medicare, Medicaid and Social Security. However, I want to take this opportunity to address an issue that is probably not at the forefront of people’s minds: older Americans who are incarcerated. 

According to the National Corrections Reporting Program, in 2016, people 55 and older accounted for about 150,000 inmates in state correctional facilities. The Federal Bureau of Prisons (FBP) indicates there are currently over 18,000 inmates 56 and over in federal prisons. Clearly, there is a sizable population of older Americans incarcerated.  Are correctional facilities able to meet the needs of seniors? 

Throughout the country, there is a movement to provide distinct resources to older incarcerated Americans. The federal government opened a Memory Disorder Unit  in Massachusetts for inmates with dementia, the first of its kind.  The facility mimics a nursing home model that tries to meet the unique, specific needs of people with dementia. Also, this type of correctional facility is needed because staff at traditional prisons can’t meet the needs of dementia patients.  These prisoners often fall prey to other inmates. 

It’s not just outfitting prisons for older Americans; advocates argue criminal justice reform should include expanding “compassionate release.” Compassionate release allows elderly or infirmed inmates to be released early from prison because it would be unjust to keep them incarcerated and they don’t pose a danger to society.

​According to the Marshall Project and the New York Times, between 2013 and 2017, FBP only approved 6% of the 5,400 compassionate release applications they received. Case files demonstrate that applications usually get rejected because the inmate is a danger to society or because of the severity of the crime they committed. 

However, many criminal justice reform advocates argue that compassionate release has been too strictly applied. In December 2018, with bipartisan support, the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (FIRST Step Act) became law and was designed to make it easier to apply for compassionate release.

Obviously, the COVID-19 pandemic has intensified calls for compassionate release.  For example, according to the FBP, during April, 268 inmates were granted compassionate release, a significantly higher percentage than the 144 inmates who were granted release from December 2018 (when the FIRST Step was signed into law) to March 2020.   Furthermore, Senators Dick Durbin, D-Ill. and Chuck Grassley, R-Iowa, introduced the COVID-19 Safer Detention Act in June, which expanded the Elderly Home Detention Pilot Program that moves elderly inmates from prison to home confinement. Durbin said, “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.”

Our country’s judicial branch of government is also confronting the aging prison population. In Alabama, Vernon Madison was sentenced to death for killing a police officer. Madison developed dementia in his 60s after he had multiple strokes in prison. His attorneys argued that capital punishment violated the Cruel and Unusual Punishment clause of the Eighth Amendment because Madison  could not recall why he was convicted as a result of his dementia.
The Supreme Court found that Madison was legally required to receive an evaluation of whether dementia and other mental conditions barred him from the death penalty. 

“Given this trend, we may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age,” wrote Supreme Court Justice Stephen Breyer in an earlier appeal.  Madison passed away before the case was resolved. 
 
​Professor Marc Stern from the University of Washington, a prison health care consultant, said, “It would be nearsighted for any state or county not to be planning for an aging prison population.” 

All inmates deserve a basic level of care in prison and older Americans who are incarcerated are no exception.  We should provide better, specialized care for seniors who are incarcerated. Introducing additional medical services will only apply a band-aid to what will be a consistent challenge as inmates continue to age. We should consider methods to reduce the overall number of older inmates in our prisons, given the care they often require. 

With recidivism rates for seniors being significantly lower than for younger people, maybe it’s time we start asking whether there is value in keeping seniors who are nonviolent offenders in prison; they are often are more costly to incarcerate. 

One thing is for sure: Our country’s prisons are graying, and we need to be better prepared.