Elderly prisoners rarely released early
Many who qualify for program unable to apply
A Wisconsin program that allows elderly and severely ill prisoners to be released early from prison could save state taxpayers millions of dollars a year.
But thousands of the state’s elderly prisoners — many of whom prison officials acknowledge pose little or no risk of committing new crimes — aren’t allowed to apply, a Milwaukee Journal Sentinel investigation found.
More than 1,200 people age 60 and older were serving time in Wisconsin prisons as of Dec. 31, 2016, the most recent count available.
By one estimate, the average cost to incarcerate each of them is $70,000 a year — for an annual total of $84 million.
Last year, just six inmates were freed under the program.
Among those who didn’t qualify were a blind quadriplegic and a 65-year-old breast cancer survivor who uses a breathing machine and needs a wheelchair to make it from her cell to the prison visiting room.
Little-used program
Around the country, early release provisions for elderly and infirm prisoners are billed as a way to address problems such as prison overcrowding, skyrocketing budgets and civil rights lawsuits alleging inadequate medical care.
But throughout the U.S., they are used so infrequently that they aren’t having much impact.
Of the 47 states with processes to free such prisoners early or court rulings requiring them to do so, just three — Utah, Texas and Louisiana — released more than a dozen people in 2015, ac-
cording to a Journal Sentinel survey.
The reasons for the low numbers, according to experts, are usually found in the statutes that created the programs, known as compassionate release, geriatric release and medical parole, among other things.
Some laws, like Wisconsin’s, exclude inmates based on the type of sentence or the crime committed. Some allow release only for people who are terminal — a definition that varies by medical provider and doesn’t apply to chronic conditions or disabilities. Some lack an efficient process for application and approval, leaving sick prisoners to die before they can complete it. It’s also hard to find care facilities willing to accept former prisoners.
Because many of these laws were written without input from doctors who specialize in aging and end-of-life care, they exclude the people who would benefit most, according to Brie Williams, a physician and professor of medicine at the University of California-San Francisco.
“We’ve taken health out of criminal justice policy to such a degree that the policies that have been developed do not have the geriatric and palliative care knowledge they need to make sense,” she said.
“A parole board may get a disciplinary record that doesn’t have any context with respect to the person’s medical condition and to what extent the diagnosis may be affecting their behavior.”
Rebecca Silber, formerly a program manager at the nonprofit Vera Institute for Justice
A quirk in the law
On its face, Wisconsin has one of the most clear and comprehensive compassionate release laws in the country.
To qualify, a prisoner must be at least 65 with five years served, or 60 with 10 years served. Prisoners with chronic health conditions also may apply regardless of age or time served if two doctors — either inside the prison or outside — certify the illnesses can’t be properly treated in prison.
People convicted of some of the most serious felonies, such as first-degree sexual assault, are not eligible, nor are those serving life sentences.
A committee of prison employees makes the decision about whom to refer to the courts for possible release. The committee must include a social worker and may include health care workers. Its members must consider several factors, including cost. During a committee hearing, the inmate makes a presentation about why release would serve the public interest.
From August 2, 2011, through the end of June 2017, 25 people were released under the program, according to the corrections department. Only one was approved due to advanced age alone; the others had health conditions.
A key reason is this: The law governing compassionate release says only people whose crimes were committed on or after Dec. 31, 1999, making them subject to truth in sentencing, are eligible.
More than 25% of the state’s elderly prisoners serving long sentences — as well as some younger people with serious health problems — were locked up before that.
That means some of the oldest and sickest prisoners can’t apply.
A quadriplegic behind bars
As a result, people like Paul Echols stay in prison.
Echols was rendered a quadriplegic and left legally blind after a gun battle with police in August 1994.
One of his bullets shattered an officer’s arm, requiring several surgeries and ending the officer’s career.
Echols’ first court appearance occurred in his hospital room, where he remained nearly five months after the crime. By then, the state already had spent nearly $200,000 on his medical care.
Before his sentencing on three felony counts, Echols was hospitalized several more times and underwent three more surgeries.
He received a 37-year prison term. Echols could not raise his arms and spent his days flat on his back listening to audio books and looking out a window at a brick wall, according to his father, Paul Gordon. If his headphones slipped out of place, Echols could not adjust them on his own.
He died in prison last year.
“He was almost 50, but he was still my baby,” Gordon said. “He just couldn’t hold on.”
Rising prison costs
The Wisconsin Legislature created compassionate release in 2001, not long after truth in sentencing took effect.
Truth in sentencing eliminated parole for people whose crimes were committed on or after Dec. 31, 1999. It requires those people to serve every day of their sentences. It eliminates time off for good behavior and adds prison time for bad behavior. Judges must tack on a term of extended supervision equal to at least 25% of the prison time after release.
Wisconsin’s version of truth in sentencing is one of the toughest in the nation, among few that require both violent and nonviolent offenders to serve every day of their time.
Gov. Scott Walker, then one of the state legislators who sponsored the original truth in sentencing bill, told the Journal Sentinel in 2004 the legislators’ main goal was certainty for victims — not more prison time for offenders. But an analysis by the news organization the same year showed a significant increase in the length of sentences.
Compassionate release was seen as one way to remedy that. As a result, it was open only to prisoners not already eligible for parole.
When a provision in the 2009 state budget bill updated the law governing compassionate release, “state leaders confronted a looming $6.6 billion shortfall,” Nicole M. Murphy wrote in the Marquette Law Review in 2012.
One reason was the rising budget for the Department of Corrections, which has since surpassed that of the University of Wisconsin system. The trend has not abated. In the state’s most recent legislative session, the Assembly approved borrowing $350 million to build a new prison. Although the Senate did not approve that bill, legislators in both chambers and the governor have continued to propose ways to house more prisoners.
Republicans say the high cost of imprisonment is justified, citing lower crime rates since a prison building boom in the 1990s, while Democrats say states with lower incarceration rates, such as Texas and New York, saw a similar decrease in crime.
The amendments making it easier for prisoners to receive compassionate release, along with other modifications to truth in sentencing, “were slated to save the state an estimated $27 million over two years,” Murphy wrote.
In 2011, a Republican-majority state Legislature passed a bill to repeal those amendments. Walker, who had recently begun his first term as governor, signed it on July 19 of that year.
From October 1, 2009, through the date of repeal, just eight of the 55 inmates who applied had been granted release, according to Murphy.
Few receive parole
In theory, parole is the mechanism for people like Echols to get out of prison before the end of their sentences.
In practice, the number of Wisconsin inmates released on parole has decreased dramatically in recent years.
Corrections officials explain the trend by saying most people currently in prison are subject to truth in sentencing. As a result, only about 15% of prisoners — about 3,000 people — are eligible for parole.
In 2016, the most recent year available, just 185 of them were approved for parole. Of those, 12 were 60 or older.
The parole board is not required to consider factors such as advanced age, lack of mobility or illness. Instead, commissioners must conclude that someone has served “sufficient time for punishment” and that setting him or her free would not pose an unreasonable “risk to the public,” among other things.
Parole board chair Daniel J. Gabler declined to be interviewed about how commissioners weigh those subjective factors.
In general, parole boards tend to focus on the crime committed and often do not have a lot of information about an inmate’s medical condition, said Rebecca Silber, formerly a program manager at the nonprofit Vera Institute for Justice, which aims to “build and improve justice systems that ensure fairness, promote safety, and strengthen communities.”
“A parole board may get a disciplinary record that doesn’t have any context with respect to the person’s medical condition and to what extent the diagnosis may be affecting their behavior,” Silber said.
Echols became eligible more than a decade ago.
His father said he had made arrangements for Echols to live in a group home outside Madison if he was released.
But the commission denied Echols parole six times.
Every time, the board concluded that his release “would involve an unreasonable risk to the public,” according to parole commission records.
Many in low-risk settings
for parole
Last year, a provision in the state budget bill reduced the number of Wisconsin parole commissioners from eight to four, including the chair.
Around the same time, Gabler took over that position.
During his confirmation hearing, Gabler said people who were sentenced prior to truth in sentencing and were still in prison had committed “the worst of the worst” crimes.
“We’re talking about killers and rapists,” he said during the hearing.
The corrections department could not provide data that would allow reporters to accurately determine what percentage of parole-eligible inmates had committed homicide or sexual assault.
Data does show that some 400 parole-eligible inmates are housed in minimum security, meaning prison officials don’t consider them at risk for violent behavior — regardless of the crimes for which they were convicted.
A spot-check of parole-eligible inmates ages 60 and older revealed prisoners convicted of a variety of crimes, including drug dealing and robbery.
A drug offense
One of them is Nancy Ezell.
In 1998, Ezell pleaded guilty to eight felonies for repeatedly selling cocaine to police informants and undercover officers, as well as attempting to buy purportedly stolen goods from one of them. None of the charges alleged violent behavior. Her prior record also did not include violent crimes.
At the time, the “war on drugs” was in full swing, resulting in long prison sentences for even nonviolent drug offenders. By 2010, the U.S. Sentencing Commission had recognized that AfricanAmericans such as Ezell were disproportionately punished for offenses involving crack cocaine.
Ezell, then 47, was sentenced to 65 years under the parole system, in which inmates become eligible for release after serving a quarter of their sentences.
Within about a year and a half of her arrest, Ezell had five angioplasties and underwent open heart surgery, according to a transcript of her sentencing hearing.
Ezell, who will turn 66 later this month, uses a wheelchair and a breathing machine. She takes some 30 pills a day to control more than a dozen health conditions including heart disease, diabetes and kidney disease, according to her medical records. Two years ago, she was diagnosed with breast cancer, which required a mastectomy.
She became eligible for parole in 2014.
Her most recent review took place in May. A report on the parole commission’s action at that time does not address the decision-making process, except to say Ezell’s plan to live with her family upon release would need to be approved “when time frames are more appropriate.” The records also say she has not been a disruptive prisoner and has completed every program recommended for her.
Yet she has been denied release repeatedly over the past four years. The reasons?
She has not served enough time for punishment, in the parole board’s view.
And they believe her release would pose an unreasonable risk to the public.
David Liners, executive director of the Milwaukee-based social justice nonprofit WISDOM, said he can’t figure out what officials are trying to accomplish by keeping Ezell behind bars.
“Even the most risk averse understanding of the situation is going to tell
you that she isn’t going to go out and wreak a lot of havoc,” he said.
Low rates of reoffense
No matter what crimes they have committed in the past, elderly inmates are substantially less likely than younger ones to break the law again upon release, according to numerous studies.
One of them, by the U.S. Sentencing Commission, found that just 6.8% of men age 60 and older returned to prison within eight years. For men under 30, the number was close to 40%.
“Some patients who are dying are dangerous. These laws are not designed for those individuals,” Williams said of the sick and elderly incarcerated. “But the vast majority of patients in prisons and jails are not. That’s who these laws are for.”
On the flip side, life in prison poses safety hazards for the aging prisoners themselves, according to Williams, who serves as director of the criminal justice and health program at the University of California-San Francisco.
Age-related conditions such as incontinence that would be embarrassing and inconvenient on the outside could become unsafe for someone locked down with a cellmate for days or weeks, she said. Prisoners with dementia may wander into the wrong cell and anger its occupant, or they may break the rules because they don’t know any better.
Costs rise with age
It is often difficult or impossible for prison medical staff to fulfill the constitutional requirement of providing the same standard of care as in the community, Williams said. As a result, inmates must leave prison for medical care at clinics or hospitals.
The cost of that care has increased over time.
In 2007, the Wisconsin Department of Corrections budgeted $2,856 per inmate for health services, after adjusting for inflation. By 2017, that figure had grown to $4,712, an increase of 65%.
On top of the cost of prisoners’ medical treatment, departments of correction must pay for transportation and staff time. They also must provide security, even for people who are incapacitated.
Ezell has had to go to the hospital numerous times in recent years, according to her sister and medical records. Every time — including for her mastectomy — a guard stayed in her room 24 hours a day.
The corrections department does not track health care costs by individual inmate. Ezell’s family estimates her care has cost more than $1 million since she has been incarcerated.
Some states have built specialized facilities to address the needs of elderly inmates. New York was among the first states to develop a unit for prisoners with dementia. Several other states, including Virginia and Florida, have set up prison programs that resemble nursing homes or assisted living facilities.
Connecticut pioneered a system called “nursing home parole” in which the state contracts with a privatelyowned nursing home to house parolees who do not pose a risk to the public.
Wisconsin is among many states with prison hospice programs. The Wisconsin Department of Corrections also staffs “secure treatment areas” at two hospitals, one in Madison and one in Waupun, according to Department of Corrections spokesman Tristan Cook.
The department does not break down the costs to keep prisoners of different ages locked up, he said. The state’s average cost per prisoner overall is about $35,000 per year.
While the National Institute of Corrections estimates the amount is double for prisoners age 50 and older, other studies have concluded the cost is far greater: Between three and nine times as much. And it mounts with age.
It’s up to society as a whole to decide whether keeping sick and elderly prisoners locked up is worth the cost, Williams said.
“It’s a very expensive resource, and we have to decide who it should be used for,” she said. “Do we want to use this resource for someone who is so demented they don’t know their name? For someone who can barely breathe and is dragging around an oxygen tank? It’s a question we have to ask ourselves.”
Kevin Crowe of the Journal Sentinel and Dave Boucher of the USA Today Network contributed.