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What is compassion? We use the word a lot, but what does it mean? Isn’t this human emotion wired in the womb? You know compassion when you feel it—you feel a vacuum when it’s withheld.

Merriam-Webster defines compassion is a “sympathetic consciousness of others’ distress together with a desire to alleviate it.” Charles Darwin offered an explanation about the origin of human compassion. In a 2010 article in JAMA entitled Darwin’s Compassionate View of Human Nature, Paul Ekman, PhD, writes, “When pain or distress is witnessed involuntarily, the witness experiences that person’s distress. By this line of reasoning, the witness acts to reduce the other person’s misery to reduce, thereby, the witness’ own empathetically based misery. Darwin did not consider why such empathetic responses do not occur in all individuals.”

Because not all people possess an inborn ability to feel the pain and misery of others, the human species has been plagued with warring factions from the beginning of time. At the polemic end of the compassion scale are people who have little or no awareness or caring for the well-being of others. Sociopaths, as defined by the Urban Dictionary, “will lie, cheat, steal and manipulate others for their own benefit. They know exactly what they are doing.” When compassion defaults to lesser human behaviors, people suffer.

Compassion Lost

Compassion and incarceration don’t mix. Prison is a place to contain people—to punish them for their past behaviors. A punitive system trumps compassion hands down. Government policies exacerbate the problem with legislation that in the last four decades has resulted in the emergence of mass incarceration, in what Michelle Alexander describes in the preface of her seminal book, The New Jim Crow, as “America’s latest caste system.” For this post, the hierarchical caste metaphor includes inmates in prison and the aging population held in confinement in a dispassionate system.

Compassion Found

Finding compassionate release (CR) in federal law is an easy hunt. A good definition of CR by Families against Mandatory Minimums (FAMM) is: “Compassionate release refers to a court’s power to release a federal prisoner from prison earlier than he otherwise would be released when the court finds that there are ‘extraordinary and compelling reasons’ that justify an early release.”

Ostensibly, a policy of compassion for the aging federal population is well supported by law and public policy. An entire federal statute is dedicated to CR.[1] Part of the statute smartly defines the criteria for compassionate release for infirm elderly inmates:

Elderly Inmates with Medical Conditions. Inmates who fit the following criteria:

■ Age 65 and older.

■ Suffer from chronic or serious medical conditions related to the aging process.

■ Experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility.

■ Conventional treatment promises no substantial improvement to their mental or physical condition.

■ Have served at least 50% of their sentence.”

Mass incarceration dramatically increased the population of people trapped in long sentences that legislatures enacted to get tough on crime. The Nation’s December 2017 report by Michelle Chen is telling about the growing number of aged in the federal system. In Our Prison Population Is Getting Older and Older, Chen reports

The aging crisis in prison is the fallout of an era of long sentences, driven by the brutal criminal-justice policies of the seemingly never-ending “war on drugs.” Now the surge in prisoners over the past several decades has erupted into a “gray wave” of more than 131,000 people age 55 or older in state prisons nationwide, housed at a cost of some $9 billion annually. By 2030, an estimated one in three people in federal or state prisons will be aged 55 or older—more than triple the proportion in the early 1990s. A survey of 42 state prison systems shows a spike in the elderly prison population by about one-third between 2007 and 2011.

Chen further describes how aging in prison is one of the cruelest ways of growing old. “The inmates [elderly and ill] bear the heaviest medical costs and social costs, locked in cramped quarters, sometimes with much younger inmates, and subject to psychological and physical abuse, neglect, and guards who may mistake symptoms of dementia for disobedience that calls for disciplinary measures.”

The Obama administration strongly supported the CR statutes for all the right reasons. In his address to the American Bar Association’s house of delegates on August 12, 2013, Attorney General Eric Holder delivered this relevant statement on the issue:

The Department [of Justice] has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances—and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy—including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences. Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community. But considering the applications of nonviolent offenders—through a careful review process that ultimately allows judges to consider whether release is warranted—is the fair thing to do. And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.


Compassion Lost Again

Part 2 of this blog will explore how the current administration’s negative approach toward CR is evident through its failure to enforce CR laws. We’ll look at how a vacuum of compassion is a death sentence. We will delve deeper into the complexity of the CR statutes and see where defects in the laws make it very difficult to receive a CR—even when extraordinary and compelling reasons exist. This legal standard is troubling but expected in legislation that tries to appear compassionate.

For more information about the Bureau of Justice Statistics study of the aging of state prison populations, see my earlier post Senior Offenders in State Prisons.

Each state has a CR program of some sort. However, a standardized federal/state program remains a necessary prison reform policy for addressing the continued and inevitable graying of incarcerated men and women. Should the aging process be different based on where someone’s serving time?

Please share your views and comments.

Image courtesy of 123rf


[1] 18 U.S.C. § 3582(c)(1)(A)

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