Virginia rarely uses elderly parole to clear prisons

By Frank Green

Richmond Times-Dispatch | MCT Regional News

The budget crisis sent the Virginia Department of Corrections scrambling for money to mothball a new, $100 million prison in Grayson County it can't afford to open.

In the past year and a half, the department has closed six of its 50 facilities, and the number of prison-bound inmates backed up in local jails rose from 1,438 to more than 4,000 as room was made to squeeze in 1,000 rent-paying Pennsylvania prisoners.

The state has had a largely unused mechanism to ease the burden since 1994 -- geriatric parole. An estimated 1,000 Virginia inmates will be eligible this year, but only 15 such paroles ever have been granted.

Officials cite several reasons for its sparing use, among them the parole board's concern that although many older inmates use walkers and wheelchairs, 85 percent of those 65 and older were convicted of violent crimes.

Nevertheless, inmates are not eligible for Medicare or Medicaid, and inmate medical costs -- now more than $138 million a year -- will increase as the prison population ages.

Geriatric release was enacted because some inmates are too old or infirmed to pose a likely threat to public safety, and their medical costs are significantly higher, the Virginia Criminal Sentencing Commission said in its 2009 annual report.

The Corrections Department does not have figures for the cost of holding and caring for older inmates. A 2008 study by The Pew Center on the States estimates a national average of $70,000 a year per inmate.

In Virginia -- except for capital murderers -- all inmates at least 60 years old and who have served 10 years or more of their sentence, or those 65 who have served at least five years, "may petition the parole board for conditional release."

The parole board, however, was given the authority to write the regulations for implementing the law, and the panel's policy requires petitioning inmates to "identify compelling reasons" for release.

Jean Auldridge, president of Virginia Citizens United for Rehabilitation of Errants, an offender-advocacy group, is critical of the parole board's policy. "We have condoned this silliness long enough, and Virginia can't afford it any longer," she said.

When enacted along with the sentencing reforms in 1994, geriatric release applied only to inmates sentenced under the new no-parole law. In 2001, it was extended retroactively to parole-eligible inmates sentenced to crimes committed before Jan. 1, 1995.

Inmates must apply for geriatric release, but those eligible for parole are considered each year by the parole board anyway, so many do not apply.

Richard P. Kern, executive director of the sentencing commission, a criminologist and an architect of the 1994 sentencing reforms that ended parole in Virginia, is aware that many older offenders have serious records.

But with the exception of certain pedophiles, "violent crime, in particular, is an activity of the very young . . . and certainly extremely rare to see it in people in their 60s," he said.

''It was the understanding back in '94 . . . that you would, in the next couple of decades, see an aging inmate population heretofore never seen in Virginia," Kern said.

Kern said, however, that judges must take a number of factors into consideration when sentencing and not just age.

Life sentences are imposed not only because someone poses a threat for the rest of their lives, but also because of the heinous nature of the crime, he said.

''Under the old system, people with life sentences served an average time of 18, 19 years. That's all now changed," Kern said. "If an 18-year-old kid commits a heinous crime and gets a life sentence, he's with us for sure until 60."

''Think about that -- that's 42 years," he said.

Kern points out that it took many years before a significant number of inmates became eligible for geriatric release. Until 2001, only nonparole-eligible inmates could apply and, because they had to be at least 60 and served 10 years of their sentence or 65 and served five years, none were eligible until 2000.

Helen Fahey, the parole board chairwoman and a former federal and local prosecutor, has a different take on why geriatric parole was created.

''It was really focused on people who were going to get very long sentences at a young age so they would have some opportunity to be released," she said.

''If you're 60 years of age and a judge gives you 35 years, what's the message? You did something very, very serious. Obviously he doesn't think that it would be appropriate for you to be released within five years or he would have given you five years."

A 2008 Corrections Department report concluded: "Even if released, re-entry for these offenders is difficult. Without families or nursing facilities willing to take these offenders . . . placement in the community is a problem."

The department says that half of Virginia inmates over age 60 were 50 or older when sentenced. Fahey said that, "even 15 years after no-parole, you don't have a lot of those people that got long sentences at a young age and that have served 30 years, 40 years."

The parole board rejects more than nine out of 10 geriatric parole applicants because of the serious nature of their crimes.

Among those turned down is James Martin Brown, 70, who was 47 in 1987 when he was sentenced to life for the 1984 stabbing murder of his wife, Jean Brown, in their Henrico County home.

''Obviously they're not obeying the intent of the law," Brown said of the parole board's compelling reasons requirement.

Brown, reached by telephone at Augusta Correctional Center last week, said he has a master's degree in business administration, has remarried and has a home waiting for him if he is released.

He has been turned down for geriatric parole three times, even with the support of state Sen. Emmett W. Hanger Jr., R-Augusta, who wrote Fahey in 2006 saying he believed Brown was an appropriate candidate.

Brown thinks many more geriatric paroles can be granted safely. "I don't think these are people who are going to get out and be major thugs," he said.

This story we redistributed by the Associated Press.