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Elderly Offender Program: What Changes the First Step Act Made

The First Step Act of 2018 was a bipartisan attempt to initiate necessary criminal justice reforms, including providing for fairer treatment of elderly inmates in federal prisons. One of the purposes of the legislation was to address the often draconian sentences that elderly prisoners are left to serve. The First Step Act of 2018 resuscitated the Elderly Offender Home Detention Program that had previously been offered to about 80 elderly prisoners. This article analyzes the changes to the Elderly Offender Home Detention Program under the First Step Act of 2018 and how we can expect to see it re-implemented under the new law.

The History of the Elderly Offender Home Detention Program

The Second Chance Act of 2007 established the Elderly Offender Home Detention Program in order to place eligible elderly prisoners on home detention outside of prison until the end of their prison sentence. It was only available to prisoners for a limited period from 2009 through 2010 and placed strict requirements on prisoners to be considered for the program. The Elderly Offender Home Detention Program was also only operational at a few BOP facilities. To be eligible for the Elderly Offender Home Detention Program, elderly prisoners had to serve the longer of either 10 years of their sentence or at least 75 percent of their total term of imprisonment. The following additional criteria existed for elderly inmates to secure release through the Elderly Offender Home Detention Program:

  • They must be at least 65 years old.
  • They must not be serving time for a violent offense or sex crime.Elderly Offender Program, First Step Act
  • They must not have been convicted of any previous violent crime or sex offense.
  • They must not have attempted escape from a BOP facility.
  • They must be deemed by the BOP to not be at risk of committing additional criminal offenses upon release.

To take advantage of the Elderly Offender Home Detention Program, an elderly inmate had to file a written request. If the inmate committed any additional crimes while living in
an authorized facility pursuant to the Elderly Offender Home Detention Program, the inmate would have to serve out the rest of his or her sentence in federal prison.

The pilot program was studied for several years, and Congress received a report from the Federal Bureau of Prisons (BOP) in December 2011 on the progress of the program. The BOP reported that the Elderly Offender Home Detention Program cost the BOP more than $500,000 in expenses in housing and caring for elderly prisoners. However, the Government Accountability Office took issue with the way that the costs were calculated and warned that it should not be used in future policy making decisions.

Calls to Revive the Elderly Offender Home Detention Program

One of the major criticisms of the Elderly Offender Home Detention Program was that it only served about 80 total prisoners. Elderly prisoners who happened to be incarcerated at facilities that were not authorized to participate in the Elderly Offender Home Detention Program at that time were simply out of luck in terms of petitioning for a release to home detention. The sample size of the pilot program was so small that hardly any eligible elderly prisoners were able to take advantage of the program. Also, it was incredibly difficult to measure the potential benefits of the Elderly Offender Home Detention Program with such a small sample size to extrapolate from.

Criminal justice reform advocates point to the fact that U.S. federal prison facilities are not properly equipped to handle an aging prison population. This is especially problematic because the U.S. federal prison population is aging at an alarming rate and will continue to be a burden on BOP facilities. The cost of outfitting a prison to accommodate elderly prisoners would be, and currently is, enormous for taxpayers. When coupled with the fact that elderly inmates are far less likely to become repeat offenders than younger prisoners, it makes a lot less sense to invest funds in refitting federal prisons to care for elderly prisoners. In addition to the logistical accommodations that must be made for senior prisoners, there are also major expenses from the medical care standpoint and having more social workers on staff to deal with the isolation and reentry issues that elderly prisoners face as their prison term drags on. This is to say nothing of all the other problems unique to elderly inmates.

The First Step Act of 2018 Reconstitutes the Elderly Offender Home Detention Program

The Elderly Offender Home Detention Program was revived by the First Step Act of 2018. It is set to operate from fiscal years 2019 through 2023. Eligibility for participation in the Elderly Offender Home Detention Program has been greatly expanded thanks to the First Step Act, which alleviates many of the concerns that criminal justice advocates had regarding the limited availability for participation in the pilot program. To be eligible for participation in the Elderly Offender Home Detention Program under the First Step Act, an elderly inmate must meet the following criteria:

  • They must be at least 60 years old.
  • They must have served at least two-thirds of their total prison sentence.

To be clear, an elderly inmate must still meet all of the other criteria set forth in the Second Chance Act of 2007 to participate in the newly expanded Elderly Offender Home Detention Program. That is, they must still not have a history of any violent crimes and not be deemed at-risk of committing any crimes while on home detention.

A major change from the Second Chance Act of 2007 is that elderly prisoners now do not have to serve at least ten years or 75 percent of their total sentence to participate in the Elderly Offender Home Detention Program. This is a significant development because many elderly prisoners have been sentenced to extremely long prison terms thanks to mandatory minimums created by Congress and harsh U.S. Sentencing Guidelines. Thus, they were previously ineligible to receive any benefit from the Elderly Offender Home Detention Program because they had to remain in prison for such an extended period of time.

Perhaps the most significant move in expanding the Elderly Offender Home Detention Program was to make it available at all BOP facilities. This means that eligible elderly prisoners will no longer be denied participation in the program simply because they are incarcerated at a facility not authorized to participate in the program.

The program is now also available to offenders who are terminally ill and have not been convicted of a disqualifying offense and been determined by a medical doctor approved by the Bureau of Prisons to be—

‘‘(I) in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. 1715w); or

‘‘(II) diagnosed with a terminal illness.’’

Terminally ill offenders DO NOT have to be 60 or older and there is no minimum amount of time the prisoner must have served before applying.

One important limitation of the expansion of the Elderly Offender Home Detention Program is that it only applies to federal BOP facilities. This is unfortunate because the vast majority of inmates are serving their prison terms in state facilities. While there is certainly room in the criminal justice reform movement to fight for expansion of these opportunities for non-violent elderly prisoners, this is at least a step in the right direction.

Taking Advantage of the First Step Act's Expansion of the Elderly Offender Home Detention Program

If you or a loved one is at least 60 years old and have served at least two-thirds of your sentence in federal prison, you should consult with an experienced criminal defense advocate to explore whether the expansion of the Elderly Offender Home Detention Program is something you could take advantage of. Attorney Brandon Sample serves clients seeking modifications of their sentences or petitioning for participation in early release programs, such as the Elderly Offender Home Detention Program. Contact him today at 802-444-4357 to discuss the details of your case and begin pursuing all available opportunities to reduce your or your loved one's federal prison term.

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