August 13, 2013

Dying, incapacitated, and elderly federal prisoners will have a better shot at securing early release under policy changes announced by Attorney General Eric Holder.

Holder's speech to the American Bar Association in San Francisco yesterday was light on specifics, but he nodded toward important recent reforms to the Bureau of Prison’s (BOP) "compassionate release" program, which represent major improvements in three areas.

The first change addresses medical reasons for early release. The new policies allow dying prisoners to seek compassionate release within 18 months of their anticipated death, rather than the previous term of 12 months. They also clarify that a prisoner need not, as before, be completely disabled to be eligible, as long as they have a seriously debilitated medical condition due to illness or injury from which they will never recover.

A second set of changes concerns the release of a prisoner after the death or incapacitation of a caregiver looking after a member of the prisoner’s family. Up to now, the BOP has theoretically permitted requests for release on this ground, but in practice has never granted a single one. The new policies lay out specific criteria and procedures in these situations which, we hope, will lead to early release decision in such cases.

A third change – and this is stunning and wholly unexpected – is the decision to permit elderly prisoners who are not necessarily dying or seriously incapacitated to seek early release. Prisoners 65 and older can now apply for early release if they have served 50 percent or more of their sentences, have chronic or serious medical conditions connected to aging, and experience deteriorating mental or physical capabilities that diminish their ability to function in a correctional facility. Even without such medical conditions, a prisoner 65 or older who has served 10 years or 75 percent of his sentence, whichever is greater, can also apply for early release. 

The federal compassionate release program was long overdue for reform. Last year, Human Rights Watch and Families Against Mandatory Minimums published “The Answer is No: Too Little Compassionate Release in US Federal Prisons,” the first comprehensive examination of how compassionate release in the federal system works. We found a poorly supervised program without compassion in which prisoners were eligible for release only in the most narrowly defined dire medical situations and in which prisoners who were dying or seriously incapacitated were arbitrarily denied early release even when they would pose no public safety risk.  

Keeping elderly, dying, or incapacitated prisoners behind bars when their release would not threaten public safety violates human rights, common sense, and fiscal prudence. We urge the BOP make sure the promise of its new policies is realized in practice.