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Somer Stephenson is not a typical lobbyist. At age 26, she has never even been to Washington, D.C. Her interest in the legislative process was sparked in Contra Costa County, Calif., in May 2000 — when federal marshals came to her door to arrest her father. Today Owen Stephenson is serving a 12-year sentence at Lompoc, a low-security federal prison in California, for bilking investors out of $7 million. At the time of his projected release in 2011, he will be 75 years old. Somer Stephenson has teamed up with an informal alliance of defense attorneys and prison-reform activists pushing federal legislation that would permit inmates like her father, who are at least 60 years of age and have served one-third of their sentences, to petition the court for supervised early release. While the proposal might seem unlikely to resonate with lawmakers, supporters say it could help stave off a crisis as aging inmates increasingly burden federal prisons. According to the Bureau of Prisons, the number of federal inmates over the age of 60 has grown nearly 50 percent in the past five years alone, jumping from 2,850 in 1999 to 4,230 in February 2004. While prisoners over 60 make up less than 3 percent of the overall prison population, they represent the fastest-growing age segment. Meanwhile, inmates over 50 — the group considered “aging” by the National Institute of Corrections — make up nearly 12 percent of all federal prison inmates. According to federal agencies, the average annual cost of housing prisoners over the age of 50 is three times as much as for other inmates due to increased medical expenses. “Right now, we’re on a collision course,” says sociology professor Ronald Aday, author of Aging Prisoners: Crisis in American Corrections. “We have laws in place keeping people incarcerated for indeterminate lengths of time. At the same time, it costs an exorbitant amount of money to maintain elderly inmates.” Stephenson projects that the measure could save as much as $600 million in the first year alone. “This isn’t about just letting people go,” Stephenson says. “They would be closely monitored, and many would be able to work to pay the costs of their own detention and to pay back their victims.” Still, critics say, the proposal would look a lot like federal parole, which Congress abolished in the mid-1980s. “The idea that somehow the value of someone’s crime decreases as they get older has real dissonance. Do we think Martha Stewart shouldn’t go to jail because she happens to be 62?” says Paul Rosenzweig, a former federal prosecutor. “There’s a reason why we moved away from parole and went to determinate sentencing.” STATES HAVE MORE LEEWAY The graying of the federal prison population is in large measure the unintended consequence of the very reforms that eliminated parole and implemented sentencing guidelines in the 1980s. As a result of longer, mandatory sentences, inmates are increasingly growing old and dying in prison while taxpayers foot the bill. At the state level, corrections officials have responded to the increased expense of incarcerating aging inmates by creating geriatric wings, hospices, and secure nursing homes. More than 15 states maintain separate facilities to house older inmates, and roughly 40 offer some form of early release based on age. But in the federal system, results have been more difficult to achieve. “The states feel the fiscal impact more acutely,” says Herbert Hoelter, founder of the National Center for Institutions and Alternatives in Baltimore. “At the end of the day, the federal Bureau of Prisons is just a blip on a trillion-dollar budget.” In 2000, Hoelter’s group partnered with the conservative Heritage Foundation to draft a legislative proposal for a pilot program to release nonviolent offenders over age 55 who had served one-third of their sentence. The idea initially had bipartisan backing from Sens. Orrin Hatch (R-Utah) and Edward Kennedy (D-Mass.), but lost steam after the Bureau of Prisons expressed reservations, Hoelter says. BOP spokeswoman Carla Wilson says the bureau does not consider age in handling inmates. “We confine all inmates, including elderly inmates, in facilities close to their home and commensurate with security needs,” says Wilson. “For inmates in need of medical attention, we have federal medical centers, but those are not limited to elderly inmates.” George Washington University law professor Jonathan Turley, founder of the national Project for Older Prisoners, says the BOP is ignoring a “ticking time bomb.” “The federal prison population, like all prison populations, is older physiologically than it is chronologically. When feds have a prisoner who is 40, he is very likely to have the medical problems of a 50-year-old,” Turley says. “Right now, we have a large stagnant group of middle-aged prisoners who are becoming physiologically geriatric. The costs associated with those prisoners is about to go through the roof.” According to Turley, the Project for Older Prisoners, or POPS, has won the release of more than 200 elderly inmates since 1989 without a single case of recidivism. However, he says, the group rarely intervenes on behalf of federal inmates. “There are a great number of federal prisoners who have written us over the years and would have made excellent candidates for possible geriatric release,” Turley says. “We’re very limited because of the lack of parole and the rigidity of the BOP.” DYING TO GET OUT When Congress passed the Comprehensive Crime Control Act of 1984, which did away with federal parole, it included a safety-valve mechanism for limited early release. Under the law, the BOP is able to petition courts for sentence reductions based on “extraordinary and compelling reasons.” Congress instructed the newly created U.S. Sentencing Commission to develop criteria and examples for courts to apply in reviewing such requests. Two decades later, the Sentencing Commission has yet to produce any guidance. In the absence of clear direction, lawyers’ groups including the American Bar Association complain that the BOP has interpreted the law too narrowly. In order to qualify for so-called compassionate release, the BOP requires that an inmate either have a terminal illness or suffer from a debilitating condition, such as Alzheimer’s disease or paralysis, that markedly diminishes any risk to the public. Age alone is not sufficient, and in most cases prison medical authorities must certify the inmate has less than one year to live. “Congress never meant to limit this to people who are dying,” says Mary Price, general counsel of Families Against Mandatory Minimums, a D.C.-based advocacy group for prisoners. Between 1990 and 2000, just 226 releases were granted. Anecdotal reports suggest that many more inmates die in prison waiting for their requests to be processed. “We’ve probably prepared 30 compelling compassionate-release requests over the last decade, and had one granted,” says Hoelter of the National Center for Institutions and Alternatives. In addition to making age an explicit factor for early release, Stephenson’s legislative proposal would allow prisoners to petition the court directly rather forcing them to work through prison wardens and the Bureau of Prisons. The language was drafted by Margaret Love, who served as the Justice Department’s pardon attorney from 1990 until 1997. While no one in Congress has stepped up to sponsor her amendment, Stephenson says she is encouraged by the response she has received. She is planning her first trip to Washington in June. “I feel really strongly that this is something that will be taken seriously,” Stephenson says. She adds, “I sometimes forget my father would be affected by it. I’ve gotten to know so many people in the same situation who are in worse shape.”

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