January 27, 2012

V. Release from Prison, Dying in Prison

Biggest challenge of the elderly is getting them out.
— Commissioner Brian Owens, Georgia Department of Corrections, June 28, 2011

Sooner or later, one of two things will happen to an aging prisoner: she will either be released from prison or she will die behind bars. Both reentry into the community of older prisoners and death in prison are topics that have not yet received the attention they warrant. We note below a few observations and concerns. As indicated above, Human Rights Watch will be covering procedures regarding the early release of geriatric and infirm prisoners in a future report.

Release

Reentry into the community from prison is challenging for many formerly incarcerated men and women, difficulties which may be partially reflected in consistently high recidivism rates nationwide.[187] However, reentry poses special challenges for the elderly. Older men and women released from prison often find it extremely difficult to find work, housing, and transportation, as well as necessary medical and mental healthcare. Some have the assistance and support of family when they are released, but some have lost contact with their families—because of the length of time incarcerated, or the nature of their crime—and have no home to which to go.

Corrections officials consistently told Human Rights Watch that extra attention and effort are required to help older men and women resettle in the community. One of the biggest obstacles they face is finding nursing home care for the former prisoners who need it. Many nursing homes do not want to accept ex-felons, particularly if they were sex offenders, and those that may be willing to do so may not have any beds available at the time an individual who needs such care is released. At least two states, Georgia and Connecticut, are exploring the creation of special nursing homes on state property expressly for the purpose of ensuring housing for ex-offenders whose past crimes make them difficult to place in private nursing homes.

Release and Public Safety

Older people can and do commit crimes, including older people who have been released from prison.[188] Nevertheless, violent crime by older former prisoners is relatively rare. It is often said that “crime is a young person’s game” and the likelihood a person will commit serious crimes declines with age.[189]

Despite the many challenges of reentry, older inmates who are released to the community are far less likely to recidivate—to be rearrested, reconvicted, or returned to prison with or without new sentences—than younger inmates.[190]

A recent study by the Florida Department of Corrections revealed strikingly lower recidivism rates for offenders released when they are 50 years of age or older, and particularly for those released at 65 years or older, compared to younger inmates. The report concludes that age at release may be the single most important factor predicting lower recidivism.[191] In Colorado, offenders released at 50 years or older were also less likely to be returned to prison within three years of release than younger offenders.[192]

Many studies of recidivism do not distinguish between returns to prison for technical parole violations—failure to meet with a parole officer, for example—and returns because of the commission of a new crime. From a public safety perspective, the latter is obviously more important. Data that disaggregates reasons for the return to prison shows older inmates are far less likely to commit new crimes after release from prison than younger inmates.

In New York, data on releases from 2000 to 2006 reveals that inmates who were under 55 at the time of release were at least twice as likely to return to prison within three years of release with a new offense than prisoners released at age 55 and over. For example, in 2006, 10.9 percent of offenders released at an age less than 55 years returned to prison within three years with a new offense compared to 5.4 percent of those released at age 55 or older.[193] In New York, between 1995 and 2008, there were 469 prisoners who had been convicted of violent offenses and who were released from prison at 65 or older. Only one of them was ever returned to prison because of another violent offense; seven returned because of non-violent offenses. Indeed, among the total of 1,511 prisoners--including those convicted of nonviolent as well as violent crimes--released during this period after they were 65, a total of 66 returned to prison.[194] This data suggests a negligible likelihood of new crimes by prisoners released when they are older. Whatever the reasons for keeping older prisoners incarcerated, public safety cannot be a plausible one in the average case.

In a 2010 Ohio study, 26.7 percent of former prisoners commit new crimes within three years of their release from prison. But only 5.6 percent of offenders released between ages 65 and 69 commit new crimes , and only 2.9 percent do who are between age 70 and 74 when released. None of the 19 inmates released at age 75 and over committed new crimes; nor, for that matter, did any of them violate the conditions of their parole.[195]

Alan Gage, 82 years old, is in prison in Washington state, convicted of assault of a child with a deadly weapon. He was not sure how long he had been in prison when interviewed by Human Rights Watch, but knew that his sentence goes to 2024, when he will be 95. He spends most of the day sleeping and reading, and rarely goes to the yard. He says he cannot participate in things as much as he used to when he was younger. He knows he is likely to die behind bars. “I don’t like the notion of dying in prison, although I don’t think much about it. Because you’re away from everyone, out of the stream, far from those who care about you, who would come together and mourn you.”[196]

The low probability that released prisoners well on in years will commit new crimes suggests that their continued incarceration adds little to public safety. The possible risk of crime posed by individual prisoners cannot, of course, be determined solely by age; other factors must be considered as well, including their physical and mental condition and recent conduct behind bars. Nevertheless, available data suggests that as a general matter public safety does not require the continued incarceration of geriatric prisoners, especially if they are infirm or incapacitated.

Death

As the number of older prisoners increases, so too does the number of men and women dying of natural causes behind bars.[197] Some grow old and die in prison. Some enter prison in such poor health they will die before they have completed their sentence. For those who are already elderly at the time of admission, even a short sentence may be a sentence to death in prison.

Correctional systems are providing medical care to ever growing numbers of terminally ill prisoners and are trying to expand their ability to provide palliative care for the dying that is consistent with community standards, including through the creation of hospices. Each death is difficult for other inmates as well as staff.

Not surprisingly, older men and women account for a disproportionate and growing share of prison deaths. Nationwide, in 2001, offenders age 55 and over comprised 33.9 percent of deaths in state prisons nationwide; by 2007 the number had grown to 45.7 percent.[198] In the years 2001-2007, 8,486 men and women age 55 or over died behind bars. Data from individual states further illuminates the relationship between age of prisoners and mortality in prison:

  • Although older inmates were 16 percent of the June 30, 2010 Florida prison population, they represented 38 percent of all inmates expected to die in prison. Within the age cohort of all Florida inmates over age 50, almost one-third (4,819 of 16,386) are expected to die in prison, and more than half of all inmates over age 70 (297 of 408) will die in prison.[199]
  • In New York, inmates 65 years and older comprise 1 percent of the inmate population, but account for 15 percent of deaths; inmates aged 55 to 64 account for 4 percent of the population and 23 percent of the deaths.[200]
  • In Ohio, inmates 55 years and older comprised 6.5 percent of the state’s prison population in 2009, but they accounted for 48.5 percent of deaths in 2008 and 2009.[201]

Many prison systems have created hospices to respond to the emotional as well as physical needs of the dying.[202] Others do not yet have licensed hospices, but are attempting to provide palliative care nonetheless. Normal prison visitation rules are typically relaxed in prison hospices so that family members can sit at the relative’s bedside seven days a week and are permitted to repeatedly hug and touch their loved one, something not usually permitted in prison. Human Rights Watch visited the 17-bed hospice at California Medical Facility, which we were told was the first licensed hospice in the country. Chaplain Keith Knauf, the director of the program, says his goal is to attend to the physical, emotional, and spiritual needs of the inmates to “make sure they can die with dignity and respect.” The average stay in the hospice is six months. Shortly before Human Rights Watch visited the hospice, an 87-year-old inmate who had dementia and heart and lung problems had died there. We visited with a 67-year-old inmate who had been in prison for 30 years, serving a 15-to-life sentence, and who has advanced metastatic throat cancer. While he was pleased with the care he was given in the hospice, he was hopeful nonetheless that he would be able to secure compassionate release so that he would be able to go home to die with his family. In the hospice, inmate volunteers who receive 50 hours of training, as well as ongoing training as the need arises, sit vigil with the dying round-the-clock so they do not have to die alone. The volunteers read to the dying, talk and pray with them, write letters for them, and assist the nursing staff with certain basic tasks such as preparing the bath and changing diapers. Chaplain Knauf is extremely proud of the cadre of over 300 volunteer inmates who have worked at the hospice over the years.

He says that those who have paroled from prison hardly ever return.[203] The redemptive impact for inmates who work in hospices can be extremely powerful.[204]

Bernadette Thorton, 66 years old, is serving a three-year sentence in Colorado for vehicular manslaughter. She’s on oxygen because of emphysema and a bad heart. She knows she’s dying, and says she’s struggling to get out of prison so she doesn’t die there. She told Human Rights Watch, “Dying here scares me,” and began to cry. She was offered hospice but did not want to go because that “is where you go to die.” She is in constant pain, but the strongest pain medication she receives is Tylenol 3. The last pill is at 5:30 pm, and she receives nothing until the following morning at 7 am. “That’s a long time between pills,” she told us. She was housed in the infirmary, which she found very restrictive because she had only hour a day out of her room. She goes in a wheelchair to the pill line to get her medicine, even in the cold or when it is raining, and may have to wait outside like everyone else. She had to buy extra blankets for the cold because the department would not give them to her. She says her cell is really hot in summer, cold in winter. In the summer, an officer “let me prop the door open even though it’s against the rules…I have a fan to help, but my oxygen machine generates a lot of heat.” She says, “Some officers treat you with respect. A few don’t.” [205]

Hospice programs do not resolve concerns about the dignity of dying in the harsh environment of prison. A visitor to the hospice—like an inmate in the hospice—can never ignore the fact that the hospice is within a prison with its security staff and security rules and policies, however relaxed those rules may be to accommodate the dying. Prison hospice staff have unique constraints and pressures that come from being located within a prison; they must answer to officials who have priorities quite different than tending to the physical, mental, and spiritual needs of the dying.

Where a dying person wants to be with family outside prison who are willing to take care of him, permitting him to die with his family shows respect for his basic humanity and dignity. What does society gain by requiring the death to occur behind prison walls?

Samuel Edison is 53 years old and has been in Colorado prisons for 18 years of a 50-year sentence for aggravated robbery. While in prison he underwent a four-and-a-half-hour program of intensive training to become a nurse’s aide. “He loved every minute of it.” When interviewed by Human Rights Watch, Edison was working as an aide at Territorial, tending to old and dying men in the hospice. In his view, “it’s not good to die in prison. I wouldn’t want to die in prison. It’s sad to see men die here. They should be home outside prison. I’ve seen guys die here who were so old and comatose for weeks before they die. There should be a system so they could go home. But if they have no family or place to go they should stay here.” Edison says working in hospice has enabled him “to help someone instead of hurting someone. Inmates and staff thank me. It’s rewarding…. Life is fragile. It gives me pleasure to help someone, to look at them for who they are, as a human being…. If they need my help they get it, whether rapist or killer. Some inmates don’t understand. I used to get a lot of comments concerning certain patients because of their crimes. There was a serial rapist. I walked and pushed his chair. He died last year at 86. Inmates would yell out ‘why are you messing with that [S.O.B.]?’ I had to bite my tongue and defend him to a degree.” Edison is pleased with some of the changes in the hospice program. “Before they wouldn’t let hospice patients go outside, now they do. It’s important for them to get some sun and air, not be confined to rooms and day hall. They would get cranky, insult the aides, spending all day shut up and no privacy.”[206]

[187]A recent analysis of state recidivism found that four out of ten offenders returned to prison within three years of release either for committing new crimes or for violating the conditions governing their release. Pew Center on the States, “State of Recidivism: The Revolving Door of America’s Prisons” (Washington, DC: The Pew Charitable Trusts, April 2011).

[188]In a rather unusual example, a 69-year-old man tried to rob a bank using a knife the day after he was released from prison. James Barron, “Ex-Convict Is Shot After Failed Holdup,” The New York Times, October 15, 2011, http://www.nytimes.com/2010/10/15/nyregion/15penn.html (accessed November 29, 2011).

[189]Hoelter, “Imprisoning Elderly Offenders,” citing Michael Gottredson and Travis Hischi, “The True Value of Lamba Would Appear to be Zero: An Essay on Criminal Careers, Selective Incapacitation, Cohort Studies, and Related Topics,” Criminology, vol. 24 issue 2, 1986, pp. 223-233.

[190]Patrick A. Langan and David J. Levin, Bureau of Justice Statistics, “Recidivism of Prisoners Released in 1994,” June 2002, http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1134 (accessed November 29, 2011), Table 8. The Bureau of Justice Statistics study lumps all offenders 45 or over together as do some more recent studies, for example, Kyung Yon Jhi and Hee-Jong Joo, “Predictors of Recidivism Among Major Age Groups of Parolees in Texas,” Justice Policy Journal, Spring 2009, www.cjcj.org/files/predictors_of.pdf (accessed November 29, 2011). Other studies identify age as a strong, significant predictor of recidivism, but do not provide data breaking the released inmates into discrete age groups. See, for example, Beth M. Huebner and Mark T. Berg, “Examining the Sources of Variation in Risk for Recidivism,” Justice Quarterly, vol. 28 no. 1, February 2011, pp. 146-173.

[191]Florida Department of Corrections, “2009 Florida Prison Recidivism Study: Releases from 2001 to 2008,” March 2010, www.dc.state.fl.us/secretary/press/2010/RecidivismStudy.pdf (accessed July 11, 2011), p. 16.

[192]Data provided to Human Rights Watch by Maureen O’Keefe, Colorado Department of Corrections, March 23, 2011.

[193] Unpublished data obtained through Freedom of Information Act request by Human Rights Watch in email correspondence with New York Department of Corrections and Community Supervision, July 11, 2011. Older prisoners were also significantly less likely to be returned to prison for violating the conditions of release. For example, 31.2 percent of the offenders who were younger than 55 when released in 2006 were returned to prison within three years for parole violations compared to 17.4 percent of those released at age 55 and older

[194]Data provided to Human Rights Watch by the New York State Department of Corrections and Community Services by email, April 30, 2012.

[195] Data provided to Human Rights Watch in email correspondence with Steve Vandine, Ohio Department of Corrections, July 14, 2011. See also, Matthew Makarios, Benjamin Steiner, and Lawrence F. Travis, III et al., “Examining the Predictors of Recidivism among Men and Women Released from Prison in Ohio,” Criminal Justice and Behavior, vol. 37 no. 12, December 2010, (age is a significant predictor of recidivism).

[196]Human Rights Watch interview with Alan Gage (pseudonym), Coyote Ridge Corrections Center, Connell, Washington, August 8, 2011.

[197]Nellis and King, “No Exit.”

[198]Margaret Noonan, Bureau of Justice Statistics, “Deaths in Custody: State Prison Deaths 2001-2007 - Statistical Tables,” Oct. 28, 2010, http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2093 (accessed January 12, 2012), Table 5. Illness and AIDS consistently account for almost all prisoner deaths, including those of inmates aged 55 and over.

[199] State of Florida Correctional Medical Authority, “2009-2010 Annual Report and Report on Aging Inmates,” p. 54.

[200] New York Department of Correctional Services (now New York State Department of Corrections and Community Supervision), “Inmate Mortality Report: 2005-2008,” http://www.docs.state.ny.us/Research/Reports/2010/Inmate_Mortality_Report_2005-2008.pdf (accessed November 29, 2011), pp. 8-9.

[201] Data on deaths provided to Human Rights Watch in email correspondence with Steve Vandine, Ohio Department of Corrections, July 20, 2011. Percentage of prison population by age in 2009 from Ohio Department of Rehabilitation and Correction, “Institution Census 2009,” January 2009, http://www.drc.ohio.gov/web/Reports/InstitutionCensus/Institution%20Census%202009.pdf

(accessed December 13, 2011).

[202] See generally, John F. Linder and Frederick J. Meyers, “Palliative and End-of-Life Care in Correctional Settings,” Journal of Social Work in End-of-Life & Palliative Care, vol. 5 issue 1-2, 2009, pp. 7-33; National Hospice and Palliative Care Organization, “Quality Guidelines for Hospice and End-of-Life Care in Correctional Settings,” 2009, http://www.nhpco.org/files/public/access/corrections/CorrectionsQualityGuidelines.pdf (accessed December 13, 2011). Extensive information about prison hospices can be found on the website of the National Prison Hospice Association, http://npha.org. The hospice at Angola Prison has received considerable national attention. Descriptions of Angola’s hospice and a video about it can be found at the National Prison Hospice Association website. See also, Carol Evans et al., “The Louisiana State Penitentiary: Angola Prison Hospice,” Journal of Palliative Medicine, vol. 5 no. 4, 2002, pp. 553-558.

[203] One study has suggested that hospices not only have a powerful positive influence on inmates who work in them but also enhance respect, dignity, and compassion among prison staff and prisoners more generally. Kevin N. Wright and Laura Bronstein, “Creating Decent Prisons: A Serendipitous Finding about Prison Hospice,” Journal of Offender Rehabilitation, vol. 44 no. 4, 2007, pp. 1-16. See also, Art Beeler, “Palliative Care volunteers: A Program of Compassion,” Corrections Today, July 2006, p. 38.

[204] Kurt Streeter, “Amid ill and dying inmates, a search for redemption,” Los Angeles Times, November 20, 2011, http://www.latimes.com/news/local/la-me-1120-prison-hospice-html,0,6904576.htmlstory (accessed November 22, 2011).

[205] Human Rights Watch interview with Bernadette Thornton (pseudonym), Denver Women’s Correctional Facility, Denver, Colorado, March 23, 2011.

[206]Human Rights Watch interview with Samuel Edison (pseudonym), Colorado Territorial Correctional Facility, Cañon City, Colorado, March 24, 2011.