By Deborah Brancic
One issue not often discussed is the incarceration of the elderly and the terminally ill. With the baby-boom generation now approaching retirement age, their incarcerated counterparts are consuming thousands of dollars worth of resources, which may put a strain on the Commonwealth. If released, these inmates could qualify for one of many public assistance programs, receive care from hospitals such as Beth Israel Deaconess Medical Center, Dana-Farber Cancer Institute or Brigham and Women’s Hospital, and be comforted by loved ones in their final days. Although not much is being done, one MA senator is trying to change this.
Currently, if an inmate is sick or in need of care beyond the abilities of the prison medical center, they are escorted to a hospital, a visit which is covered by prison funds. “Between the cost of the treatment and the cost of repeated trips out to the hospital and back, it ran very quickly into the 6 figures to care for one person,” said Joel Thompson, staff attorney for Prisoners’ Legal Services of Massachusetts (PLSMA), a not-for-profit corporation based in Boston. “If somebody has to get hospitalized, the guards have to be there.” The prison would not only be responsible for the inmate’s healthcare costs, but also for the overtime incurred from staffing guards at the hospital for 24-hour shifts until the inmate returns to prison.
The cost of incarceration becomes more striking when the rising number of elderly in prison is taken into account. “It is a pretty giant population, the fact that there was a baby boomer generation that is getting old,” said Thompson. “We have some of them who aren’t getting out for years, and new sentencing policies that created long sentences for a lot of people.” The MA mandatory minimum sentencing guidelines put many offenders away for long terms, and the costs of housing and caring for this population has been adding up.
The percentage of prisoners in the Department of Correction (DOC) aged 50 or over has increased from 13% to 20% in the last decade, according to Leslie Walker, Executive Director of PLSMA. Out of approximately 25,000 incarcerated men and women in MA in 2011, nearly 600 of them were over age 60 and 163 were over age 70. “It is well acknowledged that prisoners age more quickly and are sicker than the general population; in prison, 50 years old is considered elderly,” she said.
According to a 2012 American Civil Liberties Union (ACLU) report on aging prisoners, the elderly cost twice as much to incarcerate as younger inmates due to the physical and medical needs associated with caring for them. “Most corrections budgets operate to ensure a certain prisoner-to-guard ratio. Aging prisoners, however, require additional staffing because they need more help with day-to-day activities, have limited mobility, and are more vulnerable to mental or physical abuse by younger prisoners,” the report stated.
Another problem with the prison system is overcrowding. The Commonwealth will be short about 12,100 beds by 2020 and will also need to build a specialized longterm care unit for over 600 prisoners, according to Walker. She recommended releasing the most resource-intensive prisoners as a money-saving measure. “Extraordinary medical placement will not by itself relieve overcrowding, but it will help county and state facilities stretch their resources further,” she said. This would save money because “These patients will no longer require round-the-clock officer escorts, will likely have at least some federal participation in their health care (via MassHealth, Medicare, or the VA), and if placed with family, they will have loved ones feeding and clothing them rather than state employees.”
One legislator decided to pursue this option. MA Senator Patricia Jehlen has been working on a bill since 2011, S.1139, which would add to the MA general laws a section pertaining to the extraordinary medical placement of prisoners. It would allow inmates with irreversible illnesses or debilitating conditions to obtain a medical release to be placed in the community in the care of a hospice or hospital, or possibly home care. The bill states such medical release should not compromise public safety, and that once released from prison, medical costs may be covered by one of many public assistance programs.
Jehlen became interested in this issue when she visited a medium to minimum security prison located about 42 miles northwest of Boston. “I have visited the intensive care/nursing unit at MCI Shirley and seen people on dialysis, bedridden, unable to move or talk. Many others are confined to wheelchairs,” said Jehlen. “Some prisoners provide one-on-one personal care assistance for the most disabled. I don’t believe safety is enhanced by continuing incarceration for the most disabled.”
Since then, the Joint Committee on Public Health and Homeland Security has heard arguments from a number of parties. Thompson said the Middlesex County Sheriff, Peter Koutoujian, testified about the costs of prisoners and their various medical conditions at a hearing on April 4th. Koutoujian spoke of six prisoners whose healthcare cost the prison $270,000 in 2011, two who cost $150,000 apiece, and pointed out that he had spent over $1M on overtime last year for correctional officers to escort prisoners to and from hospitals and guard their hospital beds. He went on to identify eleven inmates who may have qualified for medical release under the proposed bill, four of whom died of terminal illnesses while in custody. Koutoujian also said that his county currently had twelve prisoners over the age of 60, and four over 70.
“In state prison, the sentences vary widely. You might have somebody doing 3 years, but you might have somebody doing life. With the county, the maximum sentence for a misdemeanor is 2 1/2 years, and you might have somebody doing consecutive terms, so maybe they could go up to 5 years or something,” said Thompson. “But for the most part, most state prisoners are in and out of there in a year, in 18 months, that sort of thing.” In the case of a county prisoner, the argument for medical release is more pronounced, because inmates are expected to get out of prison sooner than those in state prison.
There are a number of diseases and conditions that could cause a person to die within this timeframe. Dr. Mark Huberman, an oncologist at Beth Israel, said this could include ALS, a neurologic, degenerative disease. “There is really not much treatment for that, unfortunately… It is basically 100% fatal,” he said. “The average survival is three to five years. Some people have it more acute, some people can live with it for many years. But the average is three, four, five years.” If an inmate was diagnosed with ALS, cancer, advanced HIV, or any one of many degenerative diseases, they may theoretically die before their full sentence was served.
In addition, prison personnel would better spend their time guarding those who actually need it. Employing guards to watch over the disabled is a waste of state funds, according to Jehlen. “Many correctional personnel would like to be relieved of caring for these people,” she said.
Relatives of those in prison would also like to see this kind of option created for those who are disabled. The wife of a prisoner who died in custody testified at the hearing for the medical release bill. Barbara Minnehan’s husband, Michael, was diagnosed with an abscess of the pancreas 6 months before he was approved to be released on parole. “It was an incredibly stressful time and frustrating to have the additional barrier of DOC visitation restrictions. I was only allowed to visit Michael for one hour twice a week despite him being in critical condition and even then, I encountered multiple problems trying to see him,” she said. “There was always at least one guard in the room, which I felt was so unnecessary given the fact that Michael was on a breathing tube, his abdomen was completely open from previous surgeries and he was clearly incapacitated.” He died at Boston Medical Center 7 months later. Minnehan said she hoped other prisoners might be allowed to die with dignity, surrounded by their loved ones.
Presently, the only way to obtain release for a medical condition is to bring it up during a parole hearing. “You have to be already parole-eligible and you could apply for early consideration, meaning even if you weren’t due to have your next parole hearing for a while, you could apply to have it done early based on medical reasons,” said Thompson. “So there is that, but as far as we can tell it’s not often used, and even when it’s used, the parole board is not generally granting it. Thompson said his group had a client who was dying from cancer, who he helped prepare an application for parole, which was eventually denied. “Their rationale is something along the lines of if he’s dying, and he knows he’s dying, then he’s got nothing to lose, so how can we put him on the street?”
This philosophy may be true for younger prisoners, but according to a 2012 Human Rights Watch (HRW) report, recidivism is highly unlikely for the elderly. “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 stated.
Thompson said there was one other way to obtain release. “The only other real thing you could do right now is have the governor commute your sentence. And that commutation is a process which exists, but nobody has had their sentence commuted in Massachusetts since the early ’90s, I think,” said Thompson.
A common barrier to commutation is the fear of bad publicity for the officiating party. A second HRW report said the federal Bureau of Prisons did not want to chance negative press or political blowback from releasing someone who then commits a serious crime. “Consideration of public response may also color refusals to grant requests for compassionate release when the prisoners have committed particularly grave or notorious crimes, even if there is little or no chance of their re-offending,” the report stated. This may explain why the last prisoner to have his sentence commuted in MA was Joseph Salvati in 1997, by Governor William F. Weld. No officials since then have considered releasing an inmate.
The lack of outlet for the release of prisoners is an issue on which Massachusetts differs from other states. “A health care consultant to the DOC pointed out in 2011 that at least thirty other states have enacted a medical discharge law, and that Massachusetts was one of only five states not to have any program in place to allow for the release of dying prisoners,” said Walker. She believed the state should be brought in line with the rest of the country.
“The amount of elderly prisoners is skyrocketing and they are by far the most expensive prisoners to deal with,” said Daniel Smith, legislative director for Jehlen. “As the recession caused a strain on all sorts of budgets, as the amount that’s being spent on elderly prisons is growing, it’s pushing out all sorts of other things, within the DOC department budget and in the general state budget.”
In a state where the budget deficit is as much as $1.2B according to the Massachusetts Budget and Policy center, it may be even more important to put into practice a way to reduce the costs of correctional facilities. While transferring inmates to community hospitals might create a need for places such as Dana-Farber, Beth Israel and Brigham and Women’s to add to their security staff or alter policy procedures to accommodate the released prisoners, the cost of this change would be significantly less than at present. A change in policy at the state level may add up to major savings for MA overall.
Michael P. Ross, the city councilor for District 8, which includes the Longwood Medical Area (LMA), declined to comment on this issue.