Last week, the United States Sentencing Commission (USSC) expanded the guidelines that the Federal Bureau of Prisons uses to determine if elderly inmates are eligible for early release, otherwise known as compassionate release. Previously, prisoners were eligible if certain “extraordinary and compelling” reasons existed for their release. The amended changes broaden what is considered “extraordinary and compelling” and group them into four categories: medical conditions, age, family circumstances, and other:
Medical Condition of the Defendant
- Has a “terminal illness”, (defined as a serious and advanced illness with an end of life trajectory),
- Is suffering from a serious condition,
- Is suffering from a serious functional or cognitive impairment, or
- Experiencing deteriorating health because of the aging process to which he or she is not expected to recover.
Age of the Defendant
- At least 65 years old, or
- Experiencing a serious deterioration in physical or mental health because of aging, and
- Has served at least 10 years or 75 percent of his or her term, whichever is less.
- Death or incapacitation of the caregiver of the defendant’s minor child.
- Allows for the possibility that extraordinary and compelling circumstances exist in situations that are not listed.
These changes are a product of a recent report by the Office of the Inspector General (OIG) that found that eligibility requirements for compassionate release were “unclear” and “confusing”. Commenting on the changes, USSC’s Chief Judge Patti B. Saris said, “The Commission was concerned about the testimony and public comment documenting that the BOP has failed to use its authority to recommend compassionate release in the past. We encourage BOP to use its discretion consistent with this new policy so that eligible applications are reviewed by a trial judge.” Unfortunately, the updated guidelines are only advisory, and the Bureau of Prisons still has the ultimate say in which prisoners can and cannot be released under this program. Either way, updating the guidelines marks a positive step in the right direction.
Currently, there are just over 4,600 inmates over 65 in federal prison. While they represent just 2.4% of the prison population, advocates for compassionate release tout that this group of offenders are not only the most expensive to incarcerate, but the least likely to recidivate.
The increased medical needs of aging offenders put a financial strain on prison resources. Specifically, the National Institute of Corrections found that, on average, it costs $68,270 to incarcerate someone older than 50—double that of their younger counterpart ($34,135). And for what? The most recent recidivism report by the USSC found that inmates older than 60 are the least likely to recidivate. Specifically, of the prisoners released in 2005, 16% of those aged 60 and older recidivated compared to 67.6% of those under 21.
Currently, the federal prison system is operating at about 128% of the maximum capacity. If the BOP were to adhere to the new guidelines and expand the number of prisoners who may be released under this program, it’s likely they will see a modest reduction in the prison population without a negative effect on public safety. Although broader reform is needed, the updated compassionate release guidelines offer the BOP a tool to tackle some of the overcrowding issues on the federal level, and hopefully they will do just that.