Having elderly people sitting in prison does no one much good. They tend to have more health problems and be costlier than younger inmates. People commit less crime as they get older, so keeping those of enhanced age incarcerated is doing little from a public safety standpoint either. You could release an older prisoner and almost guarantee they would not go out and steal a car or rob someone.
Like many states around the country looking to address the injustices of mass incarceration, Maryland officials attempted to change its statutes a few years ago to release a segment of inmates age 60 or older. But zero inmates met the criteria that would have qualified them for release. That’s right, the way the law was written failed to capture any elderly inmates.
Now the state is moving toward corrective action. The Maryland Justice Reinvestment Oversight Board is considering introducing legislation that would expand the pool of elderly patients eligible for what they call “geriatric parole." We think this is something the board should take up and legislators should pass in the next General Assembly, especially as the geriatric population, now at 1,185 inmates, is expected to nearly double in the next five years despite the overall decline in Maryland’s prison population.
But the proposed solution is just a start because, if adopted, only 265 elderly inmates would be eligible by the end of 2020, and a total of 445 would eventually qualify. That only puts a small dent in the older population in Maryland prisons.
Still, it is better than the current law. The problem with the way the statute was originally written was that it focused on repeat violent offenders sentenced under mandatory minimum sentencing laws. Many of the inmates were also sentenced to consecutive sentences, which complicated the process and hurt eligibility. Lastly, inmates have also run into bureaucratic procedural delays. Of those inmates older than 60 with sentences less than life, 59.3 percent could be eligible for parole but have not had a hearing. Parole eligibility screening also didn’t always account for changes in cognitive and behavioral declines that may falsely make them seem too risky to release back into society.
The justice reinvestment oversight board is recommending parole hearings be held within six months of an inmate turning 60 and that risk assessment be more tailored to changes that come with aging. A strong plan for helping these inmates re-enter into society, such as stable housing and health care coverage, would also be required. These inmates would also have to have served 25% of their non-violent sentence or 50% of a sentence if they committed a violent crime.
There are some restrictions on who would qualify. Those with life sentences (only 39% of prisoners over age 60 are serving life sentences) or offenses that don’t qualify for parole would not be eligible. Sex offenders also could not apply for release. Victims and their families would also be allowed to weigh in.
State officials don’t have to look far to see that releasing elderly patients is the right way to go. Just look at the Ungers — a group of prisoners who entered the correctional system as young men, were incarcerated an average of 39 years and then released after a 2012 court decision that found problems with jury instructions Maryland used during the period when they were tried. There has been about a 3 percent recidivism rate among this group of former inmates in their 50s, 60s, 70s and 80s, compared to 40% for the rest of the prison population, according to a 2018 report by the Justice Policy Institute.
Their cases also show the state could likely go further with its release of elderly prisoners. Many of the Ungers were serving life sentences yet have lived non-criminal lives since being released. That would require broader changes in state law since Maryland remains one of three states where the governor’s signature is required to award parole to anyone serving a life sentence. No lifers have been released on parole in two decades, although governors have granted commutations.
Maryland isn’t the only state whose geriatric prison release program has had limited results. A Milwaukee Journal Sentinel analysis last year of such programs found that 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.