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September 27, 2023
Making the case for expanded use of home confinement for older federal prisoners
Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:
The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders. This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.
Well-established research shows that older people are substantially less likely to recidivate. In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50. Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.
At the same time, the cost of housing older people is becoming astronomical. The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade. Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....
Since the First Step Act was established, very few have been placed into this pilot program. The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January. Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.
In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement. This pilot program has not been given a chance to see if it works. It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people. Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....
The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further. This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence. This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.
During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence. Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense. That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes. Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.
September 27, 2023 at 10:00 PM | Permalink
Comments
Much of this push to place older, non-violent inmates on home confinement is really about saving the BOP money, especially healthcare costs, which are huge numbers. Also, about 60%+ of the costs of operating a prison are labor costs; fewer inmates means fewer guards, with large savings in labor costs. To begin to understand this problem, one must realize that because so many inmates abused their bodies on the streets with drugs and alcohol (and accidents and shootings and stabbings) for many years before they came to Federal prison, the average inmate's body and health problems are 10+ years older than their chronological ages. Keep in mind, however, that if inmates are pushed out of prisons and into home confinement, there is an issue about who will pay for their medical expenses, rent and utilities (Section 8 housing and utility assistance), assuming they cannot move in with family or close friends, and food (SNAP benefits?). The cost of healthcare may be shifted to Medicaid and Medicare, which are just different Federal pockets. Many of these (mostly men, 94% of all Federal inmates) people have little education and few job skills. Many have spent so many years in jails and prisons that they will be entitled to receive little or no Social Security money, beginning at age 65 or 67. Some will also not be entitled to Medicare, because they have paid in little or nothing. It is harder to get families to take in older inmates, to live in their homes on home confinement, than it is with inmates 21 to 50. We cannot lose sight of the fact, that although these men will be on home confinement, they are still legally in the "custody" of the DOJ/ BOP, which remains ultimately responsible financially for housing, feeding and clothing them, and providing for their medical care. This is really a complicated issue, so it will be good to follow the results of the expanded Pilot Program.
Posted by: Jim Gormley | Sep 27, 2023 11:17:23 PM
Doug: Curious your thoughts--
https://bearingarms.com/ranjit-singh/2023/09/27/court-video-footage-shows-the-ruthless-racial-impact-of-michigans-carry-laws-on-black-men-n75386
Posted by: federalist | Sep 28, 2023 9:36:24 AM
As you may recall, federalist, I highlighted the public defender groups' brief in the run-up to Bruen as well as related post-Bruen commentary that Bruen could be a brake on racially disparate enforcement. I hope someone is tracking the racialized enforcement patterns after Bruen, and it will be interesting to see if any amici bring up this issue in the new Rahimi case. (Of course, history and tradition included expressly racialized gun control laws.)
Ultimately, these modern gun enforcement data/concerns in Michigan are just a variation on drug crime enforcement and lots of other "public order" criminalization --- inevitably, those in the most marginalized and policed communities will be subject to disparate enforcement. I trust you can understand why folks who "live" these data in their daily lives and in their communities may be quick to jump to the conclusion that racial biases infuses the operation of America's CJ systems.
Of course, through different enforcement choices, we could readily flip these racial numbers -- eg, I believe Mountain West states have the highest per capita drunk driving deaths, and Wyoming often has 2x or more yearly DD fatalities than murders. Suppose all Wyoming law enforcement decided to crack down on underage drinking by heavily policing the state's university and high school students. I suspect they could find a basis to arrest just about every (mostly white) kid under 21 if they so wanted, all in the name of public safety. If they did so, though, I am sure it would get a whole lot more attention than the pattern of enforcement of these gun laws in Michigan (or drug laws most everywhere).
That said, I disagree with this blanket assertion in the article you link: "It’s obvious that racial equality and gun control are mutually incompatible." People also like to say that about drug control (and all sort of other (non-criminal) stuff), but I still want to believe we can pursue reasonable public safety goals and avoid unwarranted racial disparities. But doing so requires being realistic and vigilant about lots of structural and practical realities in our CJ systems and broader society.
Posted by: Doug B | Sep 28, 2023 10:12:49 AM
Color me skeptical.
The BOP has functionally gutted the 2/3rds elderly offender home detention pilot program.
First, the refuse to allow eligible inmates to apply at the case manager level. Source: I have helped multiple people just try to be put in for the program.
Second, they made it much more difficult to get into when they decided that the 2/3rds calculation was based off of day-for-day time served instead of AT LEAST statutory good time (54 days per year) or First Step Act Earned Time Credits. This means in practice that many folks just won't qualify because the sentences themselves are so long.
Third, this pilot program, while noble, really was overshadowed (rightfully so) by the CARES Act. Frankly, screw the Pilot Program. Bring back CARES Act release discretion and make it permanent. The statistics are the same and the program is much more malleable for individual circumstances.
I remember being very excited when the Pilot Program was reauthorized. It turned out to not impact that many folks at all.
Posted by: Zachary Newland | Sep 28, 2023 10:37:54 AM
I think that when the CJ system is overly harsh on people in these situations, it undermines the public support for harsh sentences for those who deserve it. Plus, it's just a bad thing to do.
The analogy is inapt--there's no right to use heroin. There is a right to keep and bear arms.
Posted by: federalist | Sep 28, 2023 10:40:09 AM
If one wishes to use heroin, it's his/her business, just like sucking down prescription pills.
There is no right to keep and bear arms. Scalia must have been under the influence. The National Guard protects us against revolutionaries (perhaps awol on Jan. 6).
Posted by: fluffyross | Sep 28, 2023 12:08:11 PM
What is the right level of "harsh" (as opposed to "overly harsh") when it comes to simple gun possession, federalist?
Also, you have to think about the analogy a bit more, federalist, if you want to think hard about arms and drugs. Heroin may be the equivalent of machine gun, and it is reasonably contested whether 2A rights extend to any and every arm (and regulations). For many, marijuana serves as a medicine and can be readily grown in a private space. Do you read the Constitution to allow governments to criminalize growing a medicinal plant -- that is more benign than a gun -- on private property? More to the point, we are discussing enforcement patterns, not contestable views of constitutional rights (which most everyone agrees can be subject to some forms of regulation).
Posted by: Doug B | Sep 28, 2023 12:08:43 PM
Doug,
You mention, “unwanted racial disparities.” Are you referring specifically to federalist’s example or are you against them in all cases?
Posted by: TarlsQtr | Sep 28, 2023 2:29:32 PM
Doug, that's the beauty of a constitution--those decisions aren't for me to make. And by the way, you're wrong about enforcement decisions--when it comes to Constitutional rights, you cannot make byzantine rules that will trap the unwary. And there's that whole "shall not be infringed" thingy. Not saying that reasonable regulation is a problem, but when prosecutors go after people for a 2-day expired license and treat that sort of crime worse than actual violent crime, then I start to think that rights are being infringed.
Simple gun possession by a law-abiding person shouldn't be criminalized. That's my view. For a two-day expired license--I start hoping that the prosecutor who did it gets his or her ticket pulled--for good. See how they like it.
Posted by: federalist | Sep 28, 2023 2:33:17 PM
So many questions, federalist: Can registration of guns be required and subject to at least low-level criminal enforcement for failure to register? Can any types of weapons be criminalized? Can it be a crime to possess a gun on a college campus? How about while protesting in front of SCOTUS? How about in my house 30 years after conviction for low-level tax fraud? Can there be a fee and training required for registration? And on and on. (Of course, similar questions can come up for all sorts of regulation of medicines/drugs from tea and coffee to (prescription) opioids and many others.)
Master Tarls: I was meaning to suggest that I dislike any claims that enforcement of certain race-neutral laws will inevitably produce “unwanted racial disparities.”
Posted by: Doug B | Sep 28, 2023 2:48:19 PM
Doug, when a prosecutor offers diversion for mugging an old lady, but demands convictions for administrative gun law violations, something is rotten in Denmark, and courts can do something about it.
Posted by: federalist | Sep 28, 2023 5:06:35 PM
As you surely know, federalist, I have long supported courts playing a more active role checking the exercise of state power by prosecutors.
Posted by: Doug B | Sep 29, 2023 9:54:18 AM
I am curious what are the most common underlying crimes? That is, of the people moved to home confinement under the program, what crimes had they originally been convicted of?
Posted by: William C Jockusch | Oct 1, 2023 10:12:37 AM
