Consensus, Compassion, and Compromise?: The First Step Act and Aging Out of Crime

Introduction

The First Step Act (Act) represents an ambitious, bipartisan compromise to commence much-needed, genuine federal sentencing reform by attempting to reduce the prison footprint. However, as its name suggests, it is, in practice, simply one meager stride in what requires a marathon to affect true change. This is particularly evident when considering its two-fold approach to reduction in the sentences of elderly offenders. Since 2013, compassionate release has stood as the exclusive process available for qualifying elderly offenders to be released early from prison. While the Act broadens access to compassionate release, it fails to do so liberally. As before, the Bureau of Prisons (BOP) persists in creating and conserving implementation guidelines that render compassionate release policies virtually impotent. The Act also resurrects the Second Chance Act of 2007 by authorizing aged-based early releases for inmates who are sixty years old and have served at least two-thirds of their sentence. While this revival appears appealing, it, too, fails to result in cognizable evolution. This is so because BOP has again apprehended the system by refusing to include good time credits in release eligibility calculations. In many ways, BOP’s unceasing resistance to reform has impeded the Act’s potential.

In his article, The First Step Act and the Brutal Timidity of Criminal Law Reform, Professor Mark Osler documents many of “the slows” or reasons why criminal justice reform retains a slow, crawling pace. He lists the political pressure that politicians face when casting themselves as “tough on crime” as one reason why reform, despite well-documented research and support, is not advocated for more vigorously and consistently by politicians. Professor Osler also suggests that a more coordinated and consolidated effort by reformists would result in markedly improved outcomes. He is correct on both fronts, but there is more to the story.

As a general matter, this country has created laws and policies that express extreme moral condemnation of criminal offenders. Our approach to punishment expresses, rather soundly, clear repugnance of those who have been found guilty of a crime. Before true reform can occur, we must commence the indispensable process of reprogramming our collective view of criminal offenders. Once we begin viewing them as human beings, worthy of dignity and respect, fairer and more humane punishment methods will, in turn, follow.

I. The Truth about Criminal Justice Reform

In his article, Professor Osler asks, “Why are we so slow to correct clear injustices?”¹ He identifies politics, racism, prosecutorial encroachment, and incrementalism as possibly justifying “the slows,” or the lack of urgency in crafting novel and impactful criminal justice reforms. He correctly specifies that criminal justice reform is the only U.S. policy arena where the affected are rendered voiceless.² He writes, “those most directly affected by over-incarceration are the people in our society least able to affect policy through democratic means because those in prison are almost always denied the ability to vote.”³ He also hearkens to bygone eras’ media coverage of the crack epidemic, laments the sensationalist nature of media coverage, and reminds us of the media’s power and influence. In his words, “real-life experiences do not strongly affect the way we feel about criminal justice, but the media’s interpretation of what is going on—often in communities other than our own—does affect our policy outlooks.”⁴ Further, he confronts America’s original sin by denouncing our race problem and the myth that “the threat of black men . . . requires mass incarceration.”⁵ Finally, he labels prosecutors as incessantly impeding any reform process. While all of this is true, it still fails to adequately explain the slows. The slows are fueled by something far deeper.

A. Dignity

The underlying explanation for “the slows” is that both U.S. society and the criminal justice system overwhelmingly view incarcerated people as less human, and, therefore, undignified.⁶ The U.S. criminal justice system dehumanizes criminal offenders in a manner that is radically dissimilar to similarly situated countries. Professor James Q. Whitman writes, “[t]he relationship between punisher and punished is indeed one of the core, definitional, relationships of inequality in human society, and one of the core, definitional relationships of disrespect.”⁷ He further characterizes the “intoxication of degradation”⁸ as unleashing the worst in the punisher as he attempts to put the prisoner “in his place.” ⁹ Other scholars confirm that U.S. criminal punishment constitutes a series of “degradation ceremonies”¹⁰ that affirm an offender’s moral deficiency and “reflects . . . [his] low status.”¹¹ According to Professor Howard Garfinkel, degradation ceremonies are fueled by society’s urgent desire to publicly denounce moral indignation. The result is the “ritual destruction of the person being denounced.”¹² This is because the “psychology of punishment” is “a psychology of degradation,” and “[w]hen human beings punish, they tend, in the very act of punishment, to create a relationship of inequality.”¹³ Criminal punishment, particularly incarceration, is socially and morally degrading because it permanently extinguishes offenders’ social standing and overall acceptance as fully, equally human. We justify our poor treatment of criminal offenders as deserved because they are simply not as “good” as the rest of us. In the words of Professor James Q. Whitman:

Criminal punishment does not only visit measured retribution on blameworthy offenders. Nor does it only deter. Nor does it only express considered condemnation. It . . . also expresses contempt. We do indeed harbor a strong natural tendency to perceive offenders as “dangerous and vile,” and therefore to strike them hard: Human beings are so constituted that they typically want, not to punish in a measured way, but to crush offenders like cockroaches.¹⁴

Scholars describe criminal justice as “culture-bearing” because it reveals how society truly views those who inhabit it.¹⁵ Our oppressive treatment of offenders in the criminal justice system exposes precisely what we, as a society, think of them. Professor Joshua Kleinfeld writes:

American punishment treats an offender who has committed a serious crime or engaged in a pattern of repeat offenses as having exposed the truth about who he is—about his enduring character. The criminal system thus crosses the line separating actor from act, and the crime or series of crimes is taken to justify, not just imposing hard treatment on the offender, but banishing him from social life.¹⁶

Collateral consequences and the stigma that attaches upon even being accused of a crime indicate who we believe offenders and alleged offenders to be—not worthy of inclusion in our pristine communities. According to Professor Kleinfeld, “[i]mplicit in American punishment is the idea that serious or repeat offenses mark the offenders as morally deformed rather than ordinary people who have committed crimes.”¹⁷ Professor Jamila Jefferson-Jones describes stigma as a “‘socially inferior attribute’ that marks the carrier as one who deviates from prevailing social norms,” and “taints the carrier as one possessing weak character,”¹⁸ rendering them somehow less human than those who have never been convicted. Stigmatized offenders are “not quite human,” which allows society to exercise varieties of discrimination, “through which we effectively . . . reduce [the offender’s] life chances.”¹⁹ The truth is that, in practice, the aforementioned stain extends not just to those accused of or engaged in serious or repeat offenses but to all offenders. This stigma is an unavoidable consequence of contact with the criminal justice system. Professor Markus Dubber agrees that “it is not only [the] punishment that degrades. It is the ascription of the label ‘offender’ that degrades . . . the level of degradation thus increases as the suspect becomes a defendant becomes a convict becomes an inmate.”²⁰

Scholars note that “human dignity has come to be accepted as a core value of [human rights] jurisprudence”²¹ and that an approach focused on dignity would seek to “restore the individuals . . . to their prior status,” instead of “degrad[ing] and marginaliz[ing] them.”²² Similarly, it provides rules to determine which assets are credited to the entity (under the control of its internal rules) and how they may be spent or encumbered. The human rights model of dignity insists that we “provide robust protections for the dignity of individuals who are incarcerated.”²³ Scholars, however, describe the U.S. conception of dignity as “narrow” and specifically rely, almost solely, on Eighth Amendment principles. Professor Michael Pinard pronounces that “the United States asks whether a certain measure, practice, or deprivation violates the personal dignity interests protected by the Constitution, rather than asking whether the overall legislative scheme is consistent with a robust belief in human dignity generally.”²⁴ As a consequence, then, “the concept of dignity is an end point that cannot be passed; it is invoked only in response to the most egregious laws or government conduct.”²⁵ He further notes that in other similarly situated countries, dignity is “the starting point for interpretation, from which rights flow.”²⁶ This constricted vision allows us to label offenders as undignified and stigmatize them. While all prisoners endure degradation, it is especially evident in the case of elderly offenders.

B. The Indignity of Prison Life

The prison environment is “crimogenic,” stripping inmates of their basic humanity, “[w]hether by introducing petty criminals to more violent offenders, forcing prisoners into racist gangs, or subjecting them to violence and rape . . . .”²⁷ Among other indignities, inmates experience unreliable medical care, use of excessive force by prison guards, lack of basic sanitation, extreme temperatures, unhealthy food, and a multitude of other experiences that pose risks to prisoner health, safety, and general well-being.²⁸ Lack of funding for critical rehabilitation programs render day-to-day life uninspired, as inmates often “simply idly pass the time all day long.”²⁹ Together, these conditions strip inmates of their dignity, regardless of age. For elderly prisoners, however, indignities are far more pronounced.

The overall prison environment is not suited to accommodate aged prisoners. Prisons’ physical designs are not fit for the aged, often lacking in facilities critical for safe movement of the elderly and disabled.³⁰ Further, elderly prisoners experience a higher risk of victimization if housed with much younger, more robust inmates and often fall victim to their whims.³¹ Additionally, due to substandard medical and dental care, inadequate diet, frequent engagement in risky behaviors, and other social factors, aged inmates suffer mental and physical deterioration at a shockingly increased rate compared to that of unincarcerated people of the same age.³² Medical professionals proclaim that “[a] prisoner aged fifty may be classified by society as middle-aged; he may, in fact, already be an elderly person if many of his years have been spent in the prison system.”³³ As a result, studies demonstrate that eighty-two percent of elderly inmates suffer chronic illness, requiring consistent care.³⁴ Despite a clear need for geriatric medical care, prison facilities lack medical staff and services necessary for such care. Further, scarce educational, recreational, and rehabilitative resources are seldom designed to meet the specific needs of older people.³⁵ Finally, elderly prisoners are often unable to participate in daily inmate life, including basic prisoner work duty, and many must rely on inmate companions, should they be available, to assist in daily living activities.³⁶

Sadly, prisoner end-of-life care is compromised as well. In previous works, I have written of the indignities suffered by terminally ill prisoners in prison hospitals and hospices, arguing that prison end-of-life care is unconstitutionally inadequate because the objectives of medical care and correction are incongruous.³⁷ The goal of prison is to punish, while the aim of medical care is to “diagnose, comfort, and cure.”³⁸ The incompatibility of these two purposes is even more obvious at the end of a prisoner-patient’s life when the “prisoner-patient’s access to health care is controlled completely by prison guards and is ‘limited by whether a guard chooses to allow the inmate to seek treatment.’”³⁹ As a result, end-of-life care fails to “resolve concerns about the dignity of dying in the harsh environment of prison.”⁴⁰ Plans for a good death, surrounded by loved ones, are thwarted by inflexible visiting hours, unwelcoming visiting venues, and less qualified doctors.⁴¹ This is, perhaps, the epitome of indignity. At its origin, prison was never intended to degrade.

This was never, however, the purpose of prison in the United States. In previous works, I have written that the American prison system was initially born of the rehabilitative model, and that “[t]he concept of rehabilitation [has] decisively determined Western society’s preference for incarceration as a mode of punishment.”⁴² Further, I offer that: Historically, prisons and jails were institutions where offenders could separate from society to reflect on their misdeeds and contemplate return following an improved moral condition. Oddly, the principal purpose of punishment radically changed while the punishment distribution tool remained unaffected. [Sentencing Reform Act or “SRA”] reforms abandoned rehabilitation, thereby promoting retribution and deterrence to punishment purpose prominence. However, this shift in punishment purpose was not accompanied by any contemplated or realized shift in punishment method. The new [Federal] Sentencing Guidelines strongly favored custody over probation for most offenses. Reformers concluded that prisons lacked the capacity to rehabilitate, yet failed to fully consider whether prisons were capable of successfully deterring crime or properly punishing moral blameworthiness.⁴³

One purpose of the Act is to restore a measure of dignity to offenders. The Act seeks to reduce the prison footprint responsibly in part by facilitating the release from prison of lower risk offenders and transferring greater numbers of prisoners to home confinement.⁴⁴ Relying on the aging out of crime theory, the Act hopes to release groups of qualified elderly offenders. The Act, however, does not do much to advance its stated goals. Because it is the product of a system that dehumanizes criminal offenders, the Act is not a major step for criminal justice reform. The treatment of elderly offenders in the Act and its practical applications further demonstrate the dehumanizing stigma that continues to slow down the process of criminal justice reform.

II. Compassionate Release and the First Step Act

Compassionate release theory is grounded in human dignity by declaring that an inmate’s altered and unfortunate circumstance may demand early release from incarceration.⁴⁵ Compassionate release authorizes judges to review criminal sentences post-sentencing to determine whether, under sufficiently extraordinary and compelling circumstances, they remain appropriate.⁴⁶ Compassionate release relies upon both legal and moral justifications. Its legal justification asserts that impending death, sickness, extreme family responsibilities, and age have canceled a prisoner’s debt to society, such that release, prior to the completion of the prisoner’s sentence, is warranted.⁴⁷ Its moral rationale declares that dying prisoners are worthy of a dignified death, indispensable to the fabric of their families as sole caregivers, and/or worthy of experiencing their final living days unconfined by prison walls. In the case of elderly offenders, compassionate release is driven by more than compassion.⁴⁸ Research indicates that unsustainable costs and underwhelming public safety benefits support a broadened view of compassionate release of elderly offenders. Congress attempted to account for this by adding novel features to the compassionate release process in the Act but failed to do so. While it is an aspirational first attempt, the Act leaves much to be desired. This is so because the BOP remains the strict, less-than-compassionate gatekeeper.

The Act alters the compassionate release policy in two significant ways: (1) by allowing prisoners the autonomy to request compassionate releases instead of relying on their prison warden to do so on their behalf; and (2) by providing prisoners with the option to appeal directly to courts.⁴⁹ A prisoner must still submit a compassionate release request to BOP, but may proceed to court if the warden fails to respond to the request within thirty days or if BOP, after its fourth and final stage of review, denies the prisoner’s request.⁵⁰ While these amendments represent a marked, progressive shift, they are not without severe limitations.

Under the Act, well-deserved allowances are made for the terminally ill, but similar concessions are not granted to the elderly.⁵¹ Certainly, elderly offenders may avail themselves of the novel self-submitted petition and court-appeal provisions, just as any other prisoner may. However, the guiding criteria remains the same. The underlying governing Sentencing Guideline, 1B1.13, is unchanged, and any reduction in sentence must still be consistent with applicable policy statements issued by the Sentencing Commission. Unlike preconditions for terminally ill offenders, then, eligibility requirements for elderly offenders seeking compassionate releases linger undisturbed. An elderly offender convicted of a violent offense must still be seventy years old, must still have served thirty years of his or her sentence, and must still not be deemed a danger to society by BOP.⁵² Further, the “extraordinary and compelling circumstance” criteria remains unmodified as well.⁵⁴ For an elderly offender’s altered circumstance to be deemed “extraordinary and compelling,” that offender must still be at least sixty-five years old, must be experiencing an age-related serious decline in physical or mental health, and must still have served ten years or 75% of his or her sentence.54 These are the identical, limiting guidelines that BOP has relied upon since the enactment of the aforementioned 2013 program “revisions.” As before, elderly offenders receive no discernible relief from federal compassionate release policies. Though § 403(b) is entitled, “Increasing the Use and Transparency of Compassionate Release,”⁵⁵ the Act does nothing to fulfill its titular claims.

BOP continues its stranglehold on release policies by misaligning with broad Sentencing Guidelines. Enormous disparities persist between controlling Sentencing Guidelines and BOP’s Program Statement, rendering statutory changes unsettled. BOP’s Program Statement insists that elderly inmates with medical conditions requesting release meet five specific criteria: (1) be sixty-five years old or older; (2) suffer from a chronic or serious medical condition related to age; (3) experience deteriorating physical or mental health that substantially diminishes their ability to function in prison; (4) have exhausted conventional treatments; and (5) have served at least fifty percent of their sentence. Sentencing Guidelines, however, treat these same prisoners completely differently. Sentencing Guidelines require that elderly inmates with medical conditions requesting release must: (1) be sixty-five years or older; (2) experience serious physical or mental health deterioration due to age; and (3) have served the lesser of ten years or seventy-five percent of their sentence.⁵⁶ In its role as jailer, BOP has constructed a release policy that is more exclusive in both application and practice than that of the Sentencing Commission. BOP’s authority in this arena is baffling, especially since Congress’ goal in releasing low-risk offenders is clear and the Sentencing Commission has publicly stated that it believes BOP’s authority should be limited to determining whether inmates meet eligibility criteria only and that release decisions should be made solely by judges. In refusing to comply with Congress and Sentencing Commission directives, BOP manifests the culturally-enmeshed attitude that prisoners, even low-risk offenders, are not worthy of early release. BOP’s steadfast refusal demonstrates the undignified position held by all prisoners. This is further evident in the practical application of the Act’s reauthorization of the Second Chance Act of 2007.

III. Early Release to Home Confinement and the First Step Act

Likewise, in practice, § 403 of the First Step Act is extraordinarily restrictive. Section 403 reauthorizes and broadly expands the Second Chance Act of 2007, a federal prisoner reentry initiative, to provide for an increased number of elderly offenders to finish more of their sentences through home confinement. Under the Act, an elderly offender is now eligible for release to serve his or her remaining term of imprisonment in home detention if he or she has reached sixty years of age and has served two-thirds of his or her sentence. Though Congress clearly instructs that one purpose of the Act is to reduce the prison footprint by releasing low-risk offenders, BOP chooses to defy congressional directives by refusing to include good time credits in the release eligibility formula. Several provisions of the Act plainly indicate congressional intent to reduce the prison footprint while simultaneously ensuring community safety through appropriate, cost-effective punishments. For example, § 402 provides that "[t]he Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph."⁵⁷ Notably, Congress chose the word “shall” in drafting the Act, indicating a mandatory directive to BOP.⁵⁸ Further, § 403 adds “eligible terminally ill offenders” as eligible for release to home detention, thereby expanding the category of possible candidates.⁵⁹ In its plain terms, § 101 creates a risk and needs assessment system, creates evidence-based recidivism reduction programs, crafts program incentives to welcome participation, and encourages accelerated prison and pre-release custody release.⁶⁰ Section 101 provides that “[a] prisoner shall earn 10 days of time credits for every 30 days of successful participation” and “shall earn an additional 5 days of time credits for every successful participation in evidence-based recidivism reduction programming” if certain criteria are met.⁶¹ Finally, § 102 defines, in clear language, pre-release custody categories, eligibility, types, and effectively broadens its use.⁶² The unambiguous language of the Act and its legislative history demonstrate that Congress intended to increase eligibility for release to home confinement and other alternatives to federal prison.

In determining inmate eligibility under the original 2007 version of this provision, BOP determined that good time credits should not be included in eligibility calculations. Today, BOP continues to resist decarceration by employing the identical narrow practice that favors confinement. In so doing, BOP disregards both congressional intent and statutory language of the Act. BOP’s position inappropriately and functionally deprives elderly inmates of the grant of good time credit that they receive upon reporting to prison. It bears noting that federal good time credit differs greatly from credit for time served. Good time credit in the federal system is granted upon reporting to prison and becomes part of a prisoner’s term of sentence. Although this portion of the Act is specifically aimed at easing prisons’ burdens on low-risk offenders, such as certain elderly offenders, BOP continues to deny release to eligible elderly prisoners by failing to calculate good time credit in release eligibility determinations.

CONCLUSION

While lawmakers achieved a bipartisan compromise to accomplish a small step in federal sentencing reform through the passage of the First Step Act, Congress’ vision of release for scores of low-risk offenders remains unrealized. Through intentional strides, this can be remedied. True reform, however, requires a deliberate and intentional cultural shift. To remedy “the slows,” we must remember that offenders, by their very humanness, are deserving of dignity.

¹✕Mark Osler, The First Step Act and the Brutal Timidity of Criminal Law Reform, 54 NEW. ENG. L. REV. 161, 176 (2021).

²✕Id.

³✕Id. at 176–77.

⁴✕Id. at 179.

⁵✕Id. at 181.

⁶✕MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 59 (2010); Nadine Curran, Blue Hairs in the Bighouse: The Rise in the Elderly Inmate Population, Its Effect on the Overcrowding Dilemma and Solutions to Correct It, 26 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 225, 244 (2000) (stating that “compassion shown the elderly by family, friends, and caregivers is replaced by the indifferent correction officer”); Jalila Jefferson- Bullock, Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders, 79 OHIO ST. L.J. 937, 954 (2018).

⁷✕James Q. Whitman, A Plea Against Retributivism, 7 BUFF. CRIM L. REV. 85, 106 (2003).

⁸✕JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 22–23 (2003).

⁹✕Id.

¹⁰✕Howard Garfinkel, Conditions of Successful Degradation Ceremonies, 61 AM. J. SOC. 420, 420 (1956).

¹¹✕Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55 HASTINGS L.J. 509, 547 (2004) (providing that a degradation ceremony is any communicative work between persons, whereby the public identity of an actor is transformed into something looked on as lower in the local scheme of social types); see Garfinkel, supra note 10, at 420.

¹²✕Garfinkel, supra note 10, at 421.

¹³✕Whitman, supra note 7, at 106.

¹⁴✕Whitman, supra note 7, at 98.

¹⁵✕Joshua Kleinfeld, Two Cultures of Punishment, 68 STAN. L. REV. 933, 940 (2016).

¹⁶✕Id. at 948.

¹⁷✕Id. at 941.

¹⁸✕Jamila Jefferson-Jones, A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History, 116 W. VA. L. REV. 497, 505 (2013).

¹⁹✕ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 5 (1963).

²⁰✕Dubber, supra note 11, at 547.

²¹✕Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 519 (2010).

²²✕Id. at 526–27.

²³✕Id. at 519.

²⁴✕Id. at 521.

²⁵✕Id.

²⁶✕Pinard, supra note 21, at 521.

²⁷✕United States v. Blake, 89 F. Supp. 2d 328, 344 (E.D.N.Y. 2000); see Jalila Jefferson-Bullock, The Time Is Ripe to Include Considerations of the Effects on Families and Communities of Excessively Long Sentences, 83 UMKC L. REV. 73, 87–89 (2014) (stating how in federal prison, lengthy sentences have not decreased recidivism); Richard A. Viguerie, A Conservative Case for Prison Reform, N.Y. TIMES (June 9, 2013), https://perma.cc/2KL7-3RY5 (stating how in the state system, over 40 percent of offenders return to prison within three years of release, and this number is close to 60 percent in some states).

²⁸✕Jefferson-Bullock, supra note 27, at 84. See generally Lauren Salins & Shepard Simpson, Note, Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic, 44 LOY. U. CHI. L.J. 1153 (2013); Alan Blinder, In U.S. Jails, a Constitutional Clash Over Air-Conditioning, N.Y. TIMES (Aug. 15, 2016), https://perma.cc/9686-RCPY; Cruel, Inhuman, and Degrading Conditions, ACLU, https://perma.cc/9BS8-2A7F (last visited June 21, 2021); Michele Deitch & Michael B. Mushlin, What’s Going On in Our Prisons?, N.Y. TIMES (Jan. 4, 2016), https://perma.cc/T33Y-THRK; Martin Garbus, Cruel and Unusual Punishment in Jails and Prisons, L.A. TIMES (Sept. 29, 2014, 5:52 PM PT), https://perma.cc/7V8P-JEGF.

²⁹✕Jefferson-Bullock, supra note 27, at 88; see, e.g., Rehabilitation Programs Can Cut Prisons Cost, Report Says, ORANGE COUNTY REG. (July 1, 2007, 3:00 AM), https://perma.cc/4BQM-2W8N; see also, e.g., Michael Rothfield, Cuts Dim Inmates’ Hope for New Lives, L.A. TIMES (Oct. 17, 2009, 12:00 AM PT), https://perma.cc/WB3D-PH8N; Mike Ward, State Jails Struggle with Lack of Treatment, Rehab Programs, STATESMAN (Dec. 30, 2012, 12:01 AM), https://perma.cc/6YKS-MYF9.

³⁰✕See Ronald H. Aday, Golden Years Behind Bars: Special Programs and Facilities for Elderly Inmates, 58 FED. PROBATION, June 1994, at 47, 47–48.

³¹✕See generally Old Behind Bars: The Aging Prison Population in the United States, HUM. RTS. WATCH (Jan. 27, 2012), https://perma.cc/QH4X-2HCN [hereinafter Old Behind Bars].

³²✕See Nancy Neveloff Dubler, The Collision of Confinement and Care: End-of-Life Care in Prisons and Jails, 26 J.L. MED. & ETHICS 149, 150 (1998); Jean Mikle, Health Care Costs for Older Inmates Skyrocket, USA TODAY (Mar. 31, 2013, 12:01 AM PT), https://perma.cc/7KQR-24RC.

³³✕Dubler, supra note 32, at 150.

³⁴✕See Dubler, supra note 32, at 150–51.

³⁵✕See Dubler, supra note 32, at 152.

³⁶✕See Kevin Johnson & H. Darr Beiser, Aging Prisoners’ Costs Put Systems Nationwide in a Bind, USA TODAY (July 10, 2013 6:51 PM ET), https://perma.cc/G7HT-UGNR (describing how approximately 250,000 state and federal prisoners may be classified as elderly. Warden Burl Cain of the Louisiana State Penitentiary notes that of 1,000 prison field workers, only 600–700 are physically able to complete assigned tasks due to age-related physical decline. One third of Louisiana State Penitentiary inmates are over the age of fifty, and each cost over $100,000 to incarcerate).

³⁷✕See Jalila Jefferson-Bullock, Are You (Still) My Great and Worthy Opponent?: Compassionate Release of Terminally Ill Offenders, 83 UMKC L. REV. 521, 540 (2015).

³⁸✕Id.; see Dubler, supra note 32, at 150.

³⁹✕Jefferons-Bullock, supra note 37, at 541.

⁴⁰✕Old Behind Bars, supra note 31.

⁴¹✕Jefferson-Bullock, supra note 37, at 547.

⁴²✕Jalila Jefferson-Bullock, How Much Punishment is Enough?: Embracing Uncertainty in Modern Sentencing Reform, 24 J.L. & POL’Y 345, 389 (2016) (quoting Edwin L. Rubin, The Inevitability of Rehabilitation, 19 LAW & INEQ. 343, 350 (2001)).

⁴³✕Id. at 360.

⁴⁴✕See H.R. REP. NO. 115-699, at 15–17 (2018).

⁴⁵✕Jefferson-Bullock, supra note 37, at 523.

⁴⁶✕See Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 WIDENER J. PUB. L. 799, 820 (1994).

⁴⁷✕See id. at 829.

⁴⁸✕Brie A. Williams, Alex Rothman & Cyrus Ahalt, For Seriously Ill Prisoners, Consider Evidence-Based Compassionate Release Policies, Hᴇᴀʟᴛʜ Aғғ. (Feb. 6, 2017), https://perma.cc/96SJUSS9.

⁴⁹✕First Step Act - Frequently Asked Questions, FED. BUREAU OF PRISONS, https://perma.cc/DTW5-LVS5 (last visited June 21, 2021).

⁵⁰✕Annie Wilt, The Answer Can Be Yes: The First Step Act and Compassionate Release, HARV. C.R.-C.L. L. REV. (Oct. 23, 2019), https://perma.cc/X7P8-GZD5.

⁵¹✕See id.

⁵²✕rogram Statement: Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 (c)(1)(a) and 4205(g), FED. BUREAU OF PRISONS 4, n.1 (Mar. 25, 2015), https://perma.cc/DGP2-F9Z4.

⁵³✕Id. at 1.

⁵⁴✕AMENDMENTS TO THE U.S. SENTENCING GUIDELINES § 1B1.13, 2 (U.S. SENTENCING COMM’N 2016), https://perma.cc/J8RC-U9PW. But see 18 U.S.C. § 3582 (c), (d) (2018) (listing criteria for modification of imprisonment for those whose offenses occurred after November 1, 1987, as being at least seventy years old and having served at least thirty years in prison or being diagnosed with a terminal disease).

⁵⁵✕H.R. REP. NO. 115-699, at 16 (2018).

⁵⁶✕Compassionate Release and the First Step Act: Then and Now, FAMM 2–3, https://perma.cc/S655-46FM (last visited June 21, 2021).

⁵⁷✕H.R. REP. NO. 115–699, at 15.

⁵⁸✕Id.

⁵⁹✕Id. at 15–16.

⁶⁰✕Id. at 2–9.

⁶¹✕Id. at 4, 52.

⁶²✕Id. at 10–12, 28–29.