The failurre of prison officials to significantly reduce overcrowding at State and Federal prisons before the pandemic crisis and impending economic depression has now erupted into a paralyzing dilemma. Will release at this time offer inmates and society greater safety? Is there a better solution during the COVID-19 crisis. Let's see.
In 1999 I wrote an article for the Scripps Howard News Service about a proposal for the selective release of older prisoners, a proposal praised by gerontologists like me, and by advocates for prison reform.
I could republish that article today by just updating some of the numbers since virtually nothing has been done to implement the recommendation despite compelling arguments, including the increase of the older prison population from 7.2 percent to an astonishing 20.3 percent today (about 290,000) of the 1,439,800 U.S. federal and state prison population). Add to that the fact that forty-nine states and the District of Columbia have compassionate release programs for sick and dying prisoners. But even those programs are seldom exercised according to Families Against Mandatory Minimums (FAMM).
The proposal for selective decarceration of older prisoners made a lot of sense twenty-one years ago and would seem to make even more sense now that COVID-19 is ravaging the prison population. The virus is particularly life-threatening to prisoners over the age of fifty.
What has fueled the explosive rise in the older prison population is the "three-strikes and you're out" law, first enacted in the state of Washington in 1993, which was adopted rapidly in more than half the states and the federal government. This law along with other long-term and mandatory minimum sentencing guidelines has ballooned the U.S. prison population that includes 1 in 7 (about 200,000) who are currently serving life sentences, according to The Sentencing Project in Washington D.C.
In many cases a sentence of twenty years to life under the three-strikes laws can be for initial non-violent offenses and a third strike for a minor crime.
The Stanford University Justice Advocacy Program cites bizarre cases in which life sentences were issued with third strikes that included "stealing one dollar in loose change from a parked car, possessing less than a gram of narcotics, and attempting to break into a soup kitchen." Then there is the eyebrow-raising example of "three-strikes" in the infamous case of Leandro Andrade in California. His third crime of two counts of theft for stealing $153.54 worth of videotapes from Kmart, coupled with an earlier conviction for burglary, got him a life sentence in 1996 that was upheld by the U.S. Supreme Court.
Rolling Stone Magazine reported several similar stories: "Have you heard the one about the guy who got life for stealing a slice of pizza? Or the guy who went away forever for lifting a pair of baby shoes? How about the guy who got life for possessing 0.14 grams of meth? That last offender was a criminal mastermind by three-strikes standards, as many others have been sentenced to life for holding even smaller amounts of drugs, including one poor sap who got the max for 0.09 grams of black-tar heroin."
Many of these victims of three-strikes should have received much lighter sentences or no prison time for the third crime. And, surely, when they become elderly such prisoners pose little threat to society if released two, three, or four decades after their non-violent offenses.
The fact is that recidivism rates (return to prison) are extremely low for older prisoners who are released or paroled, dropping to only 5 percent for those ages 50 to 64 and falling to a negligible 1 percent by age 65, according to studies by the U.S. Department of Justice. Compare that to recidivism rates for younger prisoners, half of whom are back in prison within six years. These figures would seem to make a compelling argument for the selective release of older prisoners.
Consider too the expense factor. It costs two to three times as much, and in some instances, five to fourteen times as much to maintain older prisoners than younger ones. Much of that discrepancy is due to healthcare costs for older prisoners, who are more likely to have serious chronic ailments that compromise their immune systems, making them more vulnerable to other diseases. That's why older prisoners will be the first to suffer severe symptoms and the first to die from COVID-19 as it invades the prisons.
Like everyone else, prisoners are susceptible to the full range of diseases associated with aging. But they are often stricken at an earlier age than the general population. Incarceration is not kind to the aging process. It can accelerate aging by ten to fifteen years. In terms of "real age" vs. chronological age, that translates into more than 20 percent of the prison population in the most vulnerable category for COVID-19. And with overcrowding, many prisons are breeding grounds for contagious diseases. As reported in Slate, when prison populations increase "single cells become doubles, doubles become triples, and so on-- Is it any wonder, therefore, that the COVID-19 is running rampant in prisons and likely to produce a high death rate?
Does this explain why prison officials, who have failed to heed sound advice for the selective decarceration of older prisoners under the best of circumstances prior to COVID-19, are suddenly eager to release older prisoners? And is this why advocates and media pundits are jumping on that bandwagon, with little attention to the complexity of the problem? Are prison officials motivated by their wish to get older prisoners--many of whom are likely to die if infected-- off their watch and their books?
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