COVID-19 gives us an urgent argument for compassionate release

We need to take immediate action to stop the spread of COVID-19 in prisons and jails. It’s the right thing to do for the thousands of families whose loved ones were not sentenced to die in prison, but who are most at risk from the deadly virus. Even those who care nothing for people who have broken the law should recognize that others will be affected if policymakers do not act. Thousands of people who work in prisons and jails leave at the end of their shifts to go out into the world. If we don’t stop the spread of the virus in prisons, the crisis will become that much more menacing. 

But there’s a big problem. Scientists worldwide advise that the two most important steps to take to limit the spread are social distancing and good hygiene. Both are nearly impossible for those behind bars. Adequate health care is mostly nonexistent. Once the virus takes off in a corrections facility, the impact will be swift and harsh. 

However, there is a solution — and it’s not new.

Compassionate release, sometimes called medical or geriatric parole, is a process that allows for the release of people who are elderly or sick. Some kind of compassionate release mechanism exists in nearly every state, and at least 17 states authorize the discretionary release of prisoners based on age alone. However, while the mechanisms exist in principle, few prisoners actually receive the benefit of these programs.

For years we have been warning U.S. policymakers about the rise of incarcerating elderly and sick people. Today, there are more than 10,000 people in federal prison alone who are over age 60. In the states, the number of people behind bars who are 55 or older increased 400 percent between 1993 and 2013. By some estimates, in about a decade those individuals will make up more than one-third of all incarcerated people. Today’s graying prison population is older and sicker than at any time in our nation’s history.

Given that we know most people simply age out of crime — one study of 200 elderly prisoners serving life sentences who were released in 2013 found a recidivism rate of just 3 percent — most experts believe the continued incarceration of these people does not increase public safety. 

This unnecessary incarceration is expensive. Older prisoners cost about $16 billion annually, including more than $8 billion in medical expenses. It is also immoral. That’s why groups such as ours have called on state and federal lawmakers to rein in the sentencing laws that lead to excessive incarceration and explore options for the release of anyone for whom continued incarceration is unnecessary, especially elderly and sick individuals.

Never before has the solution presented by compassionate release been more urgent. With the coronavirus pandemic, the sick and elderly inside America’s prisons are among those most at risk for the worst effects of COVID-19. Reducing the health impacts on prisoners and corrections professionals alike requires the speedy release of sick, elderly and otherwise low-risk individuals.

A major caveat: The federal compassionate release system is simply inadequate to handle these releases. State compassionate release systems are slow, overly bureaucratic, and often governed by strict statutes that tie the hands of system actors. 

Congress and the states can fix this inadequacy, however, in ways that do not jeopardize public safety. They should empower corrections officials to identify elderly or sick prisoners at high risk of death from coronavirus. Additionally, using their training, experience and expertise, corrections officials should identify any other individual who represents a larger threat to the health of corrections institutions than to public safety. Legislators should act promptly to give those officials unilateral authority to release them, and an expedited timeline to do so, for at least as long as the coronavirus remains a public health emergency.

These procedures, which put decision-making authority in the hands of the people closest to the problem, should have been in place before this crisis hit. Now it is upon us, and we must focus and act swiftly. Lives are at stake. 

Kevin Ring is the president of FAMM (Families Against Mandatory Minimums), a national nonprofit organization. He served as counsel to the Senate Judiciary’s Constitution, Federalism and Property Rights Subcommittee under former U.S. Attorney General John Ashcroft, and was executive director for the Republican Study Committee in the U.S. House. A former lobbyist, he served time in prison because of his role in the Abramoff lobbying scandal. Follow him on Twitter @KevinARing.