In 2009, prison workers drove Debbie Peagler from the Central California State Prison for Women to a Denny’s near Chowchilla, California. At 49, Debbie had stage IV lung cancer and an estimated three months to live. She joked, “I came to freedom in a Denny’s parking lot.” She died ten months later.

Debbie Peagler is the subject of a documentary film Crime After Crime, which follows two lawyers as they challenged her sentence, of which she had already served 20 years. The lawyers were utilizing California’s habeas law, which allows women who had been survivors of domestic violence to take their cases back to court. Eventually Debbie was granted a compassionate release, but she left behind many women like her who are continuing to grow old in Chowchilla.

Prisons around the nation are seeing this phenomenon—a “silver tide” in the corrections population. Debbie Peagler entered prison at a time that lengths of sentences had begun to soar. During her years there from 1995 to nearly 2010, the number of prisoners 55 and older nearly quadrupled—a growth 94 times the overall rate. As America’s prison population of 2.3 million people continues to go gray, a very real question presents itself: does everyone have a right to die free?

The Problem

Since one in ten prisoners is currently serving a life sentence, the population of older prisoners will continue to swell in a process calling “stacking.” Policies that have engendered this situation include increased likelihood and length of sentences, such as three strikes laws and mandatory minimums; crimes sentenced with life and/or life without parole; and more restrictions on parole. To illustrate, consider that nearly one third of federal prisoners who entered prison in 2009 had sentences ranging from 10 years to 40 years to life and most of them will die in prison.

Aging prisoners face some of the worst conditions and treatment within prisons, and they are the most expensive to house. Most policymakers seem to fail to see the implications of two facts: long-term, aging prisoners are astronomically expensive and they reoffend at the lowest rate of prisoners. In California, the cost to imprison a prisoner has increased by $19,500 since 2000; over one-third ($8,300) is from increased health care costs (and $7,100 for security, most likely because of overcrowding). The average elderly female prisoner in a California prison costs $138,000 per year and since prisons are not eligible for federal Medicaid and Medicare funding, the state picks up the tab.

Nation-wide, the annual cost of incarcerating an older prisoner is nearly double that of a younger prisoner, approximately $70,000 a year; Human Rights Watch reports that the cost of housing older prisoners is three to nine times higher than for younger ones. An extraordinary 82 percent of prisoners 65 and older have a serious and chronic medical problem that requires treatment. Even in Ohio, which leads the nation in care for older prisoners, only one-third of those with such conditions are in chronic care or hospice. As Debbie’s early death showed, the health of most aging prisoners resembles that of a person ten years older.

The combination of harsh prison conditions and poor physical health frequently results in quality of life that is more effectively cruel and unusual than for the general population. According to Dignity Denied, a report by Legal Services for Prisoners with Children, current California Department of Corrections and Rehabilitation housing issues put older and disabled prisoners at risk. Their report highlights a survey of women over 55 in Central California Women’s Prison in which more than half of respondents report that they fell at least once in the last year, and two out of five respondents report being injured while performing a daily prison routine. Cells without handrails, long-distance walks to the dining hall, and a limited number of bottom bunks exacerbate the challenges of aging.

Releasing this population on home monitoring will save more money and pose extremely low risks. Illogically, efforts to reduce prison populations have targeted younger inmates, for whom the marginal cost of being incarcerated is relatively low and who have a greater statistical tendency to reenter prison. (In general, older prisoners are ineligible for other forms of release because they are serving time for more serious and violent crimes.) Nationwide recidivism averages 67 percent. In contrast, the rate of recidivism for those over 65 is only 7.4 percent in New York State. In general, the recidivism rate for adult male inmates tends to fall dramatically around the age of 30.

Jonathon Turley, law professor and founder of Project for Older Prisoners points out that alternatives to incarceration for aging prisoners would ameliorate all four factors that contribute to prison system crises, what he calls the “four horsemen of the apocalypse.” This would a) decrease prison populations, b) stem the population’s acute growth, c) decrease overall recidivism, and d) save more money per prisoner released than any other population.

Solutions Are Out There

A long-standing federal statute for compassionate release can most directly and effectively change the lives of geriatric prisoners around the nation. In 1984, Congress enacted the Comprehensive Crime Control Act, which dramatically increased the sentences and time served for federal crimes. However, a provision was included for the reduction of sentences or “compassionate release” in the instance of “extraordinary and compelling circumstances.” The provision includes criteria such as terminal or chronic and severe illness, or the need to care for a dependent following a caregivers death, whenever the individual is deemed not to be a danger to others or the community. This provision is crucial. Has it been used? The short answer is no.

A lesser-known part of the story is that Congress also tasked a Sentencing Commission to elaborate requirements for release when it passed the act. It took 23 years, until April 18, 2007, for the United States Sentencing Commission to approve a new policy statement to instruct judges considering whether to reduce a prisoner’s sentence.

Unfortunately, courts have mostly followed the “Death Rattle Rule”, granting exceptions only when prisoners are close to death, once their care becomes extremely expensive. The Annals of Internal Medicine reported that the petition system is so riddled with procedural barriers that it is virtually inaccessible for all but those who are close to death, presenting a cruel catch-22. The date by which petitions reach a judge is likely to surpass their death.

In addition to securing earlier and quicker release, aging prisoners need better care within facilities and, like all people on the inside, programming to improve quality of life. Model programs exist, such as the Hospice of Baton Rouge where inmates are trained as caregivers at Angola Prison, one of Louisiana’s most notorious prisons. (The documentary Serving Life highlights it.) A remarkable LA Times photo documentary of the California Medical Facility, a high-security hospice program captures an inmate caring for fellow inmates who were dying. Nevada Correctional Center’s True Grit Program at engages older prisoners in music and rug making; its uncomplicated and inexpensive program has won it many awards.

I believe there is a positive sea change in the political dialogue around prison reform. In Louisiana, one in every 55 citizens are behind bars but in June, 2011 Governor Bobby Jindal signed House Bill 138, allowing prisoners to go before a parole board when they turn sixty—if they have already served at least ten years for non-violent, non-sex crimes, which most have. Other states need to follow Gov. Jindal and also Governor of Massachusetts Deval Patrick, who decided to build special facilities for elderly offenders to serve their final years.

Recommendations

Reform efforts need to be tackled in two arenas: increasing release and improving care. I echo the recommendations by authors of a UCSF study, which demands the development of standardized national guidelines to determine eligibility for compassionate release created by an independent advisory panel of palliative medicine, geriatrics and correctional healthcare experts. The new guidelines would require a “fast-track option to evaluate rapidly dying prisoners and an advocate to help the prisoner navigate the application process.”

States should also enact legislation similar to the California habeas law and establish a standardized home-monitoring program for older prisoners to serve out their time at home.

Finally, it is worth noting that inmates themselves are far from silent on the issue. In fact, Jane Dorotik, an inmate at the same prison that housed Debbie Peagler, has advocated widely for community release for older prisoners and even approached the deans of law schools nearby to ask them to begin a Program for Older Prisoners. She also speaks highly of the care inmates offer to one another: “Maybe it’s because they think … ‘I’ll be there soon’ … [but] generally there is sort of a camaraderie and a supportiveness among the inmates and a protection toward the elderly.”

We will all be there soon, and we have nothing to lose in allowing others to die free. A minister volunteering in Angola’s hospice program, who lost a close friend to homicide, framed it another way: “If in our freedom we choose to treat prisoners with care and dignity, we are not imprisoned by the memories of what they have done.”

EDITOR'S NOTE: This piece was first published at the blog, Sense and Sustainability.