Should We Discharge Terminally Ill Inmates?

10/24/2015 10:15 pm ET Updated Oct 24, 2016

On a recent trip to a medium security prison that I and other Massachusetts legislators took, an elderly inmate serving a life sentence who was dying with lung cancer asked me, "After I die, where is my body going to be buried?" I did not know the answer, but I found out before I left the prison.

Aging Inmates

In states across America, there are numerous inmates serving life sentences. These inmates did awful things to earn these life sentences. Almost without exception, their crime was a heinous murder or murders. But these people eventually grow to be elderly. And with any elder, they suffer from health complications. Often times, their health condition is worse than the general population, a reflection of a lifetime of poor decision making. As with any aging population, the health problems and associated treatment costs are higher than other aged populations. Consider that the healthcare wing of a prison incurs the costs of both a hospital and a prison. That is extremely expensive.

Inmates are by default the only population in America constitutionally guaranteed healthcare. How, you ask? Or, where in the Constitution does it say inmates are guaranteed healthcare? The Eighth Amendment states that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is the part that states "nor cruel and unusual punishments inflicted" that guarantees healthcare in that to deprive someone of needed medical treatment would in fact be cruel.

Some people may quickly say that inmates are in prison for punishment and therefore they should not get healthcare paid for by taxpayers. That thinking is not consistent with our American values. A sentence to prison is a loss of freedom; the most valuable commodity afforded to Americans. Inmates are in prison as punishment (their loss of freedom), not for punishment (to be treated cruel). As inmates are in the custody of the state, they are wards of the state, and therefore the state has full responsibility of the inmate. As such, their healthcare is the responsibility of the state prison system. The Eighth Amendment is just as central to our national identity as the First Amendment, the Second Amendment, or any other in the Bill of Rights or Amendment to the Constitution.

The costs associated with aging inmates are staggering. One DOJ study found that "Aging inmates on average cost 8 percent more per inmate to incarcerate than inmates age 49 and younger (younger inmates)." Another study by the Vera Institute of Justice sound that elderly medical costs can be four times as much as as non-elderly inmates. In short, there are no studies that I have found that state that the healthcare costs are lower for elderly inmates, and it would not make sense that they would be.

Ill Conceived Options

Some people may think that the families of the incarcerated should pick up the healthcare costs for inmates. Others may think that the death penalty is a more cost effective option than life in prison. Both of these ideas ignore certain realities. Another idea would be to shift the costs of healthcare from the states to the federal government.

First, inmates notoriously come from poor families and backgrounds. Poverty highly correlates with crime and incarceration. Accordingly, there is no reason to think that the families of inmates would be able or even willing to pay for the exorbitant healthcare costs associated with an aging inmate.

Second, the death penalty is not cheaper than life in prison; it is more expensive and doesn't deter crime anyway. And furthermore, it is inhumane and un-American to execute American citizens, albeit ones with a criminal history, to avoid spending money on healthcare costs. As I noted above, the Eighth Amendment is part of our national identity just as much as any other Amendment, and for good reason. Citizens who fear their government live in a dictatorship. A government that fears it citizens is a democracy.

Third, federal law prohibits Medicare and Medicaid from paying for medical care for inmates. Additionally, if the federal government were to pick up the bill for all 50 states aging population, we would likely see our federal taxes increase, or service and program cuts elsewhere. This is clearly not a realistic option.

What to do?

Since we know that elderly ex-inmates recidivate at far lower rates than younger ex-inmates, and we must honor the Eighth Amendment, it makes sense that under extreme and unusual circumstances certain terminally ill inmates serving a life sentence should be discharged from prison, either at the state or federal level. (County jails don't hold life-sentenced inmates, so this line of reasoning does not apply to jails.)

Managing the custody, control and care of terminally ill aging inmates is a burden on state budgets. But it need not be. If we have terminally ill inmates draining the coffers of state governments, these specific inmates, that prison administrators are confident, will do no harm and not recidivate upon release, should be considered for release. The released ex-offender would still need healthcare and this would likely still be paid by taxpayers via Medicaid or a state healthcare system. However, the advantage is that taxpayers would not be paying for all of the additional security costs associated with having said inmates in their state prison systems.

Discharging terminally ill inmates is not just a novel idea. Legislation to support this idea has been proposed in several states throughout America. Differences in legislative proposals are as diverse as the 50 states. There is no one size fits all, and perhaps there should not be. The nuances concerning the details of who should be released and under what terminally ill conditions are subject to the individual legislatures of each state, and rightly so.

Conclusion

The inmate I spoke of at the beginning of this column was given an answer before my departure from the inmate health service wing. As it turns out, inmates who don't have a family to claim them are given a proper burial on prison property. When this life sentenced inmate dying of lung cancer was told that even after death he will still be on prison property, he went silent. He suddenly realized that he literally was never getting out of prison. He said that his soul will find salvation with god, but he was clearly depressed that his body will be forever in prison. If he does slip into a depressive state, mental health counseling will be an added cost picked up by taxpayers. Clearly, there are better ways to incarcerate our prisoners and run our prisons.

Paul Heroux is a Massachsuetts state representative who worked in a county jail and state prison system before entering politics. He can be reached at paulheroux.mpa@gmail.com.