incarcerated elders

January 18, 2019

Gov. Cuomo’s FY 2020 Budget Proposal: No Compassion, No Reform

Statement from Release Aging People in Prison/RAPP
• January 18, 2019 •

Governor Cuomo’s executive budget proposal, announced on January 15, does nothing to end the crisis of aging in prison and fails to address the Parole Board’s woeful understaffing. This proposal ignores decades of research and the detailed recommendations experts, advocates, and community members have repeatedly given. The governor has once again insulted our communities and put forward the exact same policy proposal he offered last year, now under a different name: “compassionate” parole.

There is nothing “compassionate” about the Governor’s supposedly new proposal. It narrowly and ineffectively expands New York’s medical parole program, and does nothing to ensure that more people will be released from prison. In fact, the proposal excludes entire groups of incarcerated people by categories of crime and sentence and allows the Parole Board to deny compassionate release based on the nature of someone’s offense, regardless of how sick they are. Our communities reject the view that some people are unworthy of compassion.

Further, the governor failed to heed our demands to fully staff the Parole Board with Commissioners who are committed to assessing people through their rehabilitation and readiness for release. The seven vacancies on the board have caused harmful delays, procedural unfairness and hopelessness among incarcerated people. Until the governor listens to advocates, implements fair, meaningful and inclusive parole reforms, and promotes release mechanisms that center transformation instead of punishment, New York will continue to have a criminal justice system that creates mass aging, despair and death in prison.

RAPP’s analysis of the governor’s proposals (including our recommendations):
New York State Proposed Budget FY 2020 • State Parole Board Budget & “Compassionate” Parole:

STATE PAROLE BOARD BUDGET:

FY 2019:

In FY 2019, the Governor proposed an increase in Parole Board staffing by allocating $305,000 for three additional Parole Commissioners. *
At the time of the FY 2019 proposal, there were 13 Commissioners and six vacancies on the Parole Board. **
Had the money been used to appoint and confirm three new Commissioners to the Parole Board, the proposed FY 2019 budget allocation would have increased the Board’s capacity to 16 Commissioners, leaving three remaining vacancies.

FY 2020:

In FY 2020, the Governor proposed no increase in money for Parole Board staffing or to the Board’s overall budget. ***
At the time of the FY 2020 proposal, the Parole Board has 12 Commissioners and seven vacancies.
The proposed FY 2020 budget allocation allows the Parole Board to increase its capacity to 16 Commissioners but does not allow for the Board to be fully staffed.

RAPP’s RECOMMENDATIONS (see bottom of page for testimony of RAPP and the Sentencing Project on the budget)

The Governor and legislature should ensure that the Parole Board has the money to increase Parole Board Commissioner staffing to complete capacity—19 Commissioners.
If current budget allocations allow for 16 Commissioners, then the Governor and legislature should increase the Parole Board’s funding by an additional $305,000 so that the Board can be fully staffed in 2019.

*Parole Board Commissioners make $101,600 per year (NYS Executive Law §169).

** See Assembly Yellow Book 2018 (p. 112): https://nyassembly.gov/Reports/WAM/2018yellow/2018files/2018yellowbook.pdf

*** See DOCCS FY 2020 Executive Budget Proposal (p. 4): https://www.budget.ny.gov/pubs/archive/fy20/exec/agencies/appropData/CorrectionsandCommunitySupervisionDepartmentof.pdf

CHANGES TO “COMPASSIONATE” RELEASE:

FY 2019:

In FY 2019, the Governor proposed “geriatric” parole, a new program and extension of New York State’s medical parole program for incarcerated older people, aged 55 and older with serious medical conditions. *

Eligibility:

The proposal excluded people convicted of murder 1, aggravated murder, an attempt or conspiracy to commit either and those sentenced to life without the possibility of parole.
To be eligible, incarcerated people must have served at least half of their sentence (half of a determinate sentence or half of the minimum sentence on an indeterminate sentence)

Process:

The DOCCS Commissioner, at the request of the incarcerated person, their spouse, relative or attorney, can order an investigation to determine whether or not an assessment should be made to determine whether or not the person fits the medical standard for “geriatric” parole.
After a physician conducts the assessment, it is reported back to the Commissioner, who decides whether or not to certify the incarcerated person for “geriatric” parole.
If the Commissioner certifies the incarcerated person, then they refer the incarcerated person to the Parole Board within seven days of the certification. The Parole Board ultimately determines whether or not the person is released.

Release determination:

When determining whether or not to release someone on “geriatric” parole, the Parole Board must consider the factors they consider for all parole applicants. Additionally, they must consider the nature of the incarcerated person’s condition and level of care; the amount of time the incarcerated person must serve before becoming eligible for release; the incarcerated person’s current age and age at the time of the crime; and any other relevant factors.
Like for all parole applicants, the Board must provide notice to the sentencing court, district attorney, incarcerated person’s attorney, and the crime victim. They cannot grant “geriatric” parole until the expiration of a 30-day period that allows the aforementioned parties to comment.
The Board has total discretion with regard to the weight it applies to all the factors it must consider when determining whether or not to grant someone “geriatric” parole. They can justify a denial if they determine that release would “deprecate the seriousness of the crime as to undermine respect for the law.”

Post Release:

If released, “geriatric” parole applicants would be supervised by DOCCS.
The Board may require, as a condition of release, that the released person remain under the care of a physician, hospital, nursing home, hospice, family care, or any other placement that can provide the appropriate medical care recommended by the medical assessment.
A discharge plan must be completed with confirmation of the availability of the aforementioned placement.
If the incarcerated person has a cognitive illness that renders them unable to sign off on their discharge plan, and if they don’t have a guardian to do so, then the facility health services director would be empowered to be their guardian and sign off on discharge plans.

Reporting:

The Parole Board Chair must annually report the following to leaders of the legislature: the number of people who have applied for “geriatric” parole; the number of people who have been granted “geriatric” parole; the nature of the illness of the applicants; the counties to which applicants were released and the nature of the community placement; the categories of reasons for denial; the number of people who recidivate post release.

* “Geriatric” parole medical standard: “An incarcerated person suffering from chronic or serious conditions, diseases, syndromes or infirmities, exacerbated by advanced age that has rendered the [person] so physically or cognitively debilitated or incapacitated that the ability to provide self-care within the environment of a correctional facility is substantially diminished.”

FY 2020:

Despite advocates’ deep analysis and detailed recommendations to “geriatric” parole, the Governor proposed “compassionate” parole in FY 2020, which, with the exception of the change in name, is exactly the same as the “geriatric” parole proposal from FY 2019. **

RAPP’s RECOMMENDATIONS:

Pass Elder Parole (S.8581/A6354A): Parole release programs for older people must be inclusive of all older people in prison, not just a small portion of people who are very sick and dying. In place of this proposal, the Governor should champion real elder parole (S8581/A6354A), which would give parole consideration to all people aged 55 or older who have served 15 years or more in prison.

Remove “compassionate” and medical parole restrictions based on crime of conviction. If our state truly values compassion, mercy, and rehabilitation, then this new policy will be inclusive of all people regardless of their crime. By excluding certain people based on crime of conviction, New York guarantees that some older people will die in prison, effectively reinstating the death penalty in New York.

Remove the following proposed language from “compassionate” parole and all other statutes in the Executive Law, “release is not incompatible with the welfare of society and will not so deprecate the seriousness of the crime as to undermine respect for the law” (emphasis added). This punitive language is used in boilerplate fashion in the standard parole denials of tens of thousands of currently and formerly incarcerated New Yorkers. It allows the Parole Board to deny someone based solely on the nature of their crime.

Remove the Parole Board’s requirement to provide notice and a 30-day comment period to the sentencing court, district attorney, incarcerated person’s attorney, and the crime victim.

Create rules that require facility medical providers to do initial “compassionate” parole screenings for people aged 55 and older with serious chronic illnesses to see if such incarcerated people might be eligible for medical parole. This process requirement could begin in the RMUs and DOCCS’ hospice units.

Create more transparency and accountability. Annual reports on medical parole should include detailed summaries of the number of applicants who reached each phase in the application process, as well as HIPPA-compliant information on their conditions. All annual reports should be made available to the public and accessible on the Department of Corrections and Community Supervisions’ website.

** See FY 2020 New York State Executive Budget: Public Protection and General Government Article VII Legislation (p. 363-369): https://www.budget.ny.gov/pubs/archive/fy20/exec/agencies/appropData/CorrectionsandCommunitySupervisionDepartmentof.pdf

READ testimony of RAPP and the Sentencing Project delivered to the NYS Legislature’s Budget Hearings

Take action with RAPP to push back and demand real change in New York State • come to upcoming events, or email nyrappcampaign@gmail.com

December 9, 2017

The People’s Campaign for Parole Justice NY

RSVP HERE to be part of a powerful movement to end the cruelty of permanent punishment.

• Photos: Walter Hergt • Here’s how it looked last time we gathered in Albany (on January 14, 2020) demanding that our elected officials end death by incarceration and advance parole justice. RAPP, the Parole Preparation Project and hundreds of others from across New York State mounted a Day of Action to pass Elder Parole (S.2144) and Fair and Timely Parole Act (S.497A). We marched, rallied, and met with dozens of New York State elected officials. Go to our Press page to read what the media had to say about the rally and the issues.

NOW WE’RE GOING BACK TWICE AS STRONG, and we need you to RSVP here to join us on April 21

WHY: New York State has the eighth highest rate of people serving a life sentence in the country—roughly 9,200 people. More than 1,000 of them are serving Life Without Parole or virtual life without parole—with a minimum sentence of 50 years—sentences. 75 percent are People of Color.

Long and life sentences combined with few opportunities for release have created a crisis of aging, sickness and death in New York State prisons. There are now more than 10,000 people in NYS prisons—20% of the prison population—aged 50 or older; most are Black and Latinx. While the prison population in NYS fell by 27% between 2000 and 2016, the number of incarcerated older people more than doubled. Older people, especially those who have been convicted of the most serious crimes, pose little if any risk to public safety. In fact, when released, many formerly incarcerated older people engage in work that enhances public safety and community health.

To begin to scale back long and life sentences in New York State, promote the release of long-serving incarcerated older people, and reunite families and communities, New Yorkers across the state are pushing for two pending legislative initiatives:

Fair & Timely Parole (S.497A): A bill that would change the parole release process in New York State ensure that people are evaluated for release based on who they are today and not their crime of conviction.
Elder Parole (S.2144): A bill that would allow people aged 55 or older who have served 15 or more years in prison a chance at release, regardless of their sentence or crime of conviction.

Both these bills made some progress in the 2019 state legislative session, but never made it to the floor for a vote. That’s why we need to be up in Albany at the beginning of the new 2020 legislative session. Come with us to keep fighting for justice on April 21—and be part of the solution. RSVP HERE

MORE: Read more here about these bills and why we need them.

August 2, 2017

More Compassion Needed

Medical parole, along with other release mechanisms, should be used more widely to reduce the population of older people in the New York’s prisons, said New York State Comptroller Thomas DiNapoli in a report in April 2017. Now Congress is saying something similar to the federal Bureau of Prisons:

Congress Wants to Know Why the BOP Won’t Let Elderly Prisoners Go Home to Die

“Compassionate release” is an excellent tool that the BOP refuses to use.

(From the “Hit and Run” blog on reason.com)

Mike Riggs

July 28, 2017

For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called “compassionate release.”

With the stroke of a pen, the BOP has the power to release men like Bruce Harrison, sentenced in 1994 to 50 years for delivering cocaine and marijuana at the behest of undercover federal agents. Now 65, Harrison suffers from a heart condition and has neuropathy in his feet that makes it difficult to walk. His official release date? 2037.

Then there are prisoners like Michael Hodge, who was sentenced in 2000 to 20 years for distributing marijuana while in possession of a firearm. Hodge developed pancreatic cancer while in prison and requested to be released so he could die in the company of family. That request was denied, and Hodge died behind bars in 2015, according to the Washington Post.

In 2013, the DOJ Office of Inspector General encouraged the BOP to send these kinds of prisoners home. Two years later, the office released a report that found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations. Yesterday, Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission
a detailed explanation as to which recommendations the BOP has not adopted, and why
the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why
how much time elapsed between each request and a decision from the BOP
the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America’s prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems.

“In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years,” BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. “One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population.” In its 2015 report, the DOJ OIG determined that facilities with the oldest populations spent $10,114 annually on medical care per prisoner, compared to $1,916 per prisoner in facilities with the youngest populations.

“It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told,” Human Rights Watch’s Jamie Fellner told the Washington Post. “Prisons simply are not physically designed to accommodate the infirmities that come with age.”

Shelby’s letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee.

“Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there’s no good reason they should stay locked up or die behind bars because bureaucrats can’t or won’t let them go home to their families,” Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. “It’s time for someone to get to the bottom of why the BOP’s answer is always no on compassionate release.”

This reporter worked for FAMM from 2013-2015

January 3, 2017

New York Times editorial: “Why Keep the Old and Sick Behind Bars?”

By the New York Times Editorial Board, January 3, 2017

Anyone who visits a prison these days might be shocked to see what looks more like a nursing home with bars and metal detectors. Prisoners put away years ago under the wave of draconian sentencing are now turning gray and frail, suffering from heart disease and hypertension and feeling the effects of Alzheimer’s and other age-related illnesses.

Corrections officials once thought they had time to prepare for this, but something unexpected happened. Federal data shows that prison inmates age more rapidly than people on the outside — because of stress, poor diet and lack of medical care — so much so that their infirmities qualify them as “elderly” at the age of 50.

This problem is overwhelming the state and federal prison systems’ ability to manage it. And unless prisons adopt a common-sense approach of releasing older inmates who present no danger to the public, this costly group could soon account for a full third of the population behind bars.

Granting early release to sick, elderly inmates with families who want to care for them would be the humane thing to do. But it also makes good policy sense, given that they are far less likely than the young to commit new crimes. For example, a 2012 study by the American Civil Liberties Union documented that criminal activity drops sharply as people age. In New York, the study found, just 4 percent of prisoners 65 or older return to prison with a new conviction within three years of release; only 7 percent of those who are 50 to 64 do so. In contrast, 16 percent of those 49 or younger return.

A 2015 report on the federal prison system published by the Justice Department’s Office of the Inspector General offers a sense of what managing aging inmates will cost if compassionate-release programs aren’t expanded. Older prisoners are already more expensive than younger ones; treating the sick is more costly in prisons. The costs will grow as prisons are forced to hire more and more people to help elderly inmates feed, bathe and dress themselves or to escort them on trips to see medical specialists. Some elderly inmates will also require costly infrastructure improvements, like elevators and wheelchair-accessible cells, bathrooms and passageways.

The inspector general’s report also found that the re-arrest rate for older inmates was relatively low compared with the rate for young inmates and said that many older inmates were good candidates for early release. But federal policies “limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early,” the report explained. This problem is echoed at the state level, where eligibility for compassionate release is so strictly defined that parole boards almost never consider granting it.

Prisons, of course, cannot release people based solely on age. But the states and federal government can expand medical parole programs under which far too few terminally ill and physically disabled people are now released. In addition, parole boards across the country can screen older inmates for release using widely accepted measures to determine whether or not the inmate poses a risk. The best answer for the future is for state legislatures to keep moving away from the disproportionately harsh sentencing laws that brought us to this point in the first place.

May 24, 2016

The Prison Population We Should Talk About Releasing

President Barack Obama has made reducing the prison population one of his top agenda items during his final term in office. – AP/David Goldman, JUSTICE

Given his recent granting of clemency to 58 prisoners, many of whom were serving time on federal drug offenses, the President has made it clear he doesn’t want non-violent drug offenders serving long sentences. He’s also made the case that reducing sentences for non-violent drug offenders is an important part of reform and cutting the financial cost of the U.S. criminal justice system.

But criminal justice researchers say that non-violent offenders are not the prison population we should be focusing on when it comes to long-term criminal justice reform.

“The president is significantly mistaken,” Stanford University Law Professor Robert Weisberg told ATTN:.

For successful long-term criminal justice reform, the U.S. needs to consider releasing violent offenders who are no longer dangerous, even those who have been convicted of murder, said Weisberg, who is also the co-director of the Stanford Criminal Justice Center.

“The percentage of people who have committed non-violent drug offenses is not that many to be the solution for criminal justice reform,” said Weisberg.

Of the U.S. prison population, only 17 percent of inmates in 2010 were incarcerated for primary drug offenses, according to research by Fordham University Professor John Pfaff. He wrote in research published in 2015 that the focus should be on violent crime not primary drug offenders.

“The policy implications here are clear,” Pfaff wrote. “Reducing the admissions of drug offenders will not meaningfully reduce prison populations.”

This does not mean that addressing prison sentences for non-violent drug offenses isn’t important, but Pfaff said that those offenses should not be the only focus and they don’t make up the majority of people in prison.

People who have committed drug offenses make up more of the new admissions to prisons, but nearly half of inmates incarcerated are there for violent crimes, according to the Brookings Institute.

Basically, the research suggests that if we want to effectively reduce the 2.2 million people in the U.S. prison population, we have to consider releasing violent offenders.

But aren’t all violent offenders dangerous to the public?

Actually, there’s research that suggests a significant amount of them are not.

Weisberg said that violent offenders middle aged and older who committed a crime in their 20’s and 30’s tend to age out of their crime.

Elderly Prisoners

“The most interesting example of people who should be considered for release and unquestionably committed violent crimes, but are not dangerous anymore, are elderly people,” said Weisberg.

A 2011 report by the Stanford Criminal Justice Center, which followed 860 California murderers released since 1995, found that only five of the murderers were convicted of new felonies in the 15 years after release. None of them returned to prison for “life-term” crimes. That’s a 1 percent rate of return to prison for the murderers in this study compared to the nearly 50 percent return to California state prison for the broader prison population.

So why were these murderers so well-behaved after their release?

Age is mostly likely the reason. Not only are most violent crimes committed by people under 30, but even the criminal behavior that continues after that age declines drastically after age 40 and even more so after age 50, according to the report. The average age in the 2011 study for California inmates serving life in prison who were granted parole was 49.9 years old. This suggests that by the time these “lifers” made parole, they had “aged out” of the violent stage in their lives.

However living in the outside world after a prison sentence is not easy. After a recent increase in parolee releases under California Gov. Jerry Brown, and an uptick in returns to jail for some of those parolees, some wondered whether former inmates are prepared to be successful. “We’re talking about people with track records of the most serious and violent crime … and we’re saying, ‘Good luck out there, do well,'” Christine Ward, executive director of Crime Victims Action Alliance, told the Los Angeles Times.

Former inmates struggle to find jobs, have a higher likelihood of divorce, and their children have a higher rate of mental health problems and school drop out rates, according to the Obama administration.

Weisberg said the difficulty of navigating society with a criminal record could contribute to re-offenses.

“It’s plausible the longer you keep someone in prison, the longer you’re wrecking their chances for legal life on the outside,” he said.

January 29, 2016

RAPP Testifies to U.N. Working Group of Experts on People of African Descent

New York, NY, January 26, 2016: RAPP testified at a fact-finding session held by the United Nations Working Group of Experts on People of African Descent. Along with other human rights advocates (full list and submissions here), RAPP delivered testimony on the racism that governs many structures of civil society—including a prison system that continues to incarcerate elders, most of whom come from communities of color—in the U.S. today.

ORAL TESTIMONY BEFORE THE
U.N. WORKING GROUP OF EXPERTS ON PEOPLE OF AFRICAN DESCENT

By Mujahid Farid, Lead Organizer
Release Aging People in Prison / RAPP
January 26, 2016

MASS INCARCERATION

We present on what has been called the human rights issue of the 21^st century—mass incarceration in the U.S. One driver of mass incarceration is the reliance on a system of permanent punishment, a culture of retribution and revenge rather than rehabilitation and healing. And this revengeful culture is driven by what W.E.B. DuBois called the problem of the 20^th century: “the color line.” In the 21^st century this color line is reflected by mass incarceration.

PUNISHMENT PARADIGM

Over the past 40 years we have witnessed the Implementation of draconian measures supporting accelerated punishments.

These draconian punishments were first tested on dissenters—the so-called “canaries in the mines”—political prisoners.
When there was no widespread outcry over them, we witnessed these punitive measures being applied on a wider scale.

The punishment paradigm has taken on such profound proportions that researchers now say it has morphed into the “carceral state,” having collateral consequences on every social and political institution. RAPP calls your attention to the negative impact it has on the elderly, which illustrates how it is not motivated by a concern about crime, or a concern about public safety, but is instead directly linked to the historical oppression and control of the Black population.

IMPACT OF DRACONIAN PUNISHMENT ON ELDERLY POPULATION

At the current rate of growth, it is projected that by 2030 there will be more than 400,000 older people behind bars, a 4,400 percent increase from 1981 when only 8,853 of the country’s incarcerated people were elderly.
Here in New York over the past 13 years, the overall prison population decreased by 23%, while during the same 13-year period the population of elderly people over 50 years of age increased by 81%
This increase occurred in New York even though it costs 2 to 4 times more to house an elderly person in prison compared with the average cost.

In New York State and elsewhere, the ballooning population of elders in prison can be tied to the failure of systems to utilize release mechanisms such as parole, compassionate release and clemency to avoid imprisoning people beyond the point when incarceration serves any useful purpose. So we find parole-eligible people being held twenty to thirty years beyond the time when they became eligible for release.

The continued imprisonment of people who have aged out of crime and pose little public safety risk truly expresses the revenge principle. It tells us that for some people—especially people of color—growth and change do not entitle you to a second chance.

REQUEST OF COMMITTEE AND WORKING GROUP

HELP SPREAD THE WORD—TELL THE WORLD THAT MASS INCARCERATION IN THE U.S. HAS NOTHING TO DO WITH CRIME OR CONCERNS OF PUBLIC SAFETY!

We ask that your report specifically:

Advocate for the imposition of independent monitoring of parole and release hearings in the U.S. to ensure that decisions reflect recognition of the human capacity to change and rehabilitate;
Advocate for the transparency of all parole and release practices.

Thank you for your time.

In Washington, DC, DCRAPP participated in a Town Hall for the Working Group to hear from the Black community directly impacted by issues like gentrification, police brutality, and gender oppression.

Read about the UN Working Group of Experts on People of African Descent.
Read about the Working Group’s fact-finding tour of the US.

Gov. Cuomo’s FY 2020 Budget Proposal: No Compassion, No Reform

The People’s Campaign for Parole Justice NY

More Compassion Needed

New York Times editorial: “Why Keep the Old and Sick Behind Bars?”

The Prison Population We Should Talk About Releasing

RAPP Testifies to U.N. Working Group of Experts on People of African Descent

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