Older and Sicker

When asked why the death rate in Vermont prisons has gone up so drastically, Corrections Commissioner Nick Deml replied that the prison population is getting older and sicker. It might have come as a surprise to some that we have so many old and / or sick people in our prisons. Some people might think that the people that we lock away are there because they’re scarey and dangerous. That they are there for our protection. In fact, they are there because we as a society insist upon punishment. They remain behind bars until they are old and frail because we feel they haven’t been punished enough. And so we have a geriatric, or long term care unit, where people are in wheelchairs and with walkers, some in various stages of dementia, are waiting to die. And we have people who die in prison.

The Vera Institute for Justice found that long prison sentences do not prevent reoffending. In fact, they can increase reoffending, because incarceration destabilizes people’s lives. Studies have also shown that the more serious the crime is, the less likely the person will re-offend, and that people tend to “age out” of crime. Given this evidence, the humane, but also the fiscally responsible thing to do is to give people with long sentences a path to early parole as they age.

As of April 30, 2023, we are incarcerating 180 people 55 and older. Since prison is not a healthy place to live, and many incarcerated people didn’t lead healthy life styles before prison, people in this age group are considered older prisoners. Although Vermont does have a medical parole policy, it is a complicated business, and to date no one has been released in this manner. The requirements for medical parole are a “serious” (the quotes are actually in the statute) medical condition, defined as an incurable, progressive illness or debilitating injury from which the individual will not recover, or a terminal medical condition, defined as an incurable disease resulting in life expectancy of 18 months or less. It is conceivable that an applicant might die before the process is completed.

However, the Vermont legislature has chosen not to provide pathways for early release for older individuals. Here are two examples:

Compassionate Release: A bill for compassionate release expansion for elder offenders was defeated in the legislature, or amended to exclude the path to parole. The Justice Reinvestment Committee likewise chose not to take up early parole in its last recommendations. A new bill, H. 408, was introduced in the 2023 term and has yet to be taken up.

Good time: In 2019, at the suggestion of the Justice Reinvestment II Committee, and after careful study, the new Vermont good time law was passed, which provided a reduction of sentence for good behavior to all incarcerated people except those with life without parole sentences. Although then-Attorney General T.J. Donovan endorsed this bill, he eventually took an about-face and pushed through a bill that removed eligibility for people serving time for violent crimes. Those who mostly would be impacted by this are, to a great extent, older prisoners.

The Sentencing Project

In March of 2023, the Sentencing Project published a fact sheet entitled Vermont Should Give a Second Look at Extreme Sentences. It states that, although Vermont has reduced its overall prison population by 30%, the sentence of life without parole has actually increased over the same time. The fact sheet goes on to say, “Life sentences with no chance for review or release contradict the well-documented and predictable patterns in criminal conduct. People who have committed crime, even violent crime, have relatively short criminal careers and tend to commit crime in their youth and young adulthood… Excessively long sentences that carry into one’s middle-age and elderly years, as well as those that extend beyond 20 years, provide diminishing public safety benefits.”

The Sentencing Project suggests that Vermont:
• End life without parole (LWOP);
• limit the use of consecutive sentences that mimic life without parole (LWOP) in their outcome; and
• Establish a “second look” mechanism for all sentenced individuals that permits due process protections for people seeking earned release after 10 years or 50% of their sentence.

It is clear that if Vermont were to act on any of these recommendations, several things would happen: 1. the prison population would be reduced even further. 2. Medical care costs for the incarcerated would be reduced. 3. There would be fewer Vermonters dying behind bars.

— Meg McCarthy

Photo by Tim Gruber

Vermont Bill H. 408

CALL TO ACTION: On July 11, the Joint Legislative Justice Oversight Committee will be meeting with DOC Commissioner Nick Deml, and one topic of discussion will be fatalities in prison. Contact Committee Assistant Peggy Delaney pdelaney@leg.state.vt.us and ask her to pass on a message to the committee.