The Impact of an Aging Inmate Population on the Federal Bureau of Prisons reviews the financial and structural burdens on BOP and how this translates into less-than-optimal care for older inmates. Bottom line: it costs more to take care of older inmates because of physical and medical needs, and BOP cannot afford to incarcerate elderly inmates in a safe and humane manner. Not a shocking conclusion, but the numbers are compelling.
34%: By the end of 2013, BOP was 34% over capacity and elderly inmates are the fastest growing segment of that population.
36/ 39,000: One of the sentencing factors listed in section 3553(a) is whether the sentence will provide "the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. . . " This Report is evidence that a custody sentence for an aging client may not be appropriate because BOP fails to "provide programming opportunities designed specifically to meet the needs of aging inmates." Staffing is simply inadequate. Social workers are "uniquely qualified" to prepare an aging inmate for release. Of 39,000 BOP employees, only 36 serve as social workers. This impedes placement on home confinement.
114, 262, and 1,000: Likewise, a client who is both aging and has serious medical problems will not, according to DOJ, receive adequate medical care while in BOP custody. Inadequate medical staffing often requires medical care outside of the institution, but insufficient transport staff then limits this option. Need a cardiologist or neurosurgeon? The average wait time was 114 days. Follow up appointment? Another 262 days. One institution estimated that it was "one thousand inmates behind" in providing chronic care clinics.
15%: Recidivism is also a primary concern for sentencing courts. Aging inmates have fewer violations while in prison, and are much less likely to recidivate. The Report compared the general re-arrest rate for released inmates at 41% (which is questionable) to only 15% of elderly inmates re-arrested within three years.
There are other reasons for the sentencing court to consider a non-custody sentence for an elderly client, or a shorter sentence for an older client who may develop medical and physical needs that BOP cannot accommodate. For example, the Report finds that BOP's physical infrastructure limits the availability of appropriate housing. Lower bunks, handicap access, elevators, or level terrain are simply unavailable in some institutions, in part due to overcrowding and under-funding. (Same coin, different sides). Institutions often lack enough trained staff to assist with daily activities, such as hygiene and ambulation, which can be compromised by age. Lacking trained staff, BOP resorts to inmate companion programs, in which an inmate is assigned to care for an elderly inmate. These arrangements are usually unregulated.
Another example: staff untrained to recognize some problems of aging, such as forgetfulness and lost track of time, will read this behavior as misconduct. Cognitive impairment can be unjustly penalized because the correction officer was not educated on aging issues. This can result in lost good time or other sanctions.
The Report's conclusion: "[A] growing aging inmate population has an adverse impact on the BOP’s ability to provide a safe, humane, cost-efficient, and appropriately secure environment for aging inmates and to assist aging inmates reentering the community."
Compassionate Release Program
One other point. For a while, we heard about the compassionate release program, and it sounded hopeful. Then we heard that almost no one got relief, and, as currently administered, it is meaningless to both our clients and BOP. In fact, in 2013, DOJ issued a similar report that was a wholesale take-down of the alleged program. "[T]he existing BOP compassionate release program has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided." In response, BOP revised the criteria for compassionate release, but the statute still requires BOP to initiate any request to the courts for compassionate release, 18 USC 3582(c)(1)(A) and USSG 1B1.13. And BOP simply does not make those requests.
Not much has changed. Between August of 2013, when the OIG's critical report came out, and September of 2014, a total of two "elderly inmates" were released under the new eligibility provisions. That is, two out of 248 inmate requests. The OIG has, again, recommended changes and clarifications to the compassionate release program for elderly inmates.