Research shows that while most people who miss court are not dangerous or evading justice, the way courts treat “failure to appear” may make our communities less safe.

by Brian Nam-Sonenstein, August 15, 2023

People miss court for many reasons outside of their control. They can’t miss work, they don’t have childcare, or they don’t understand court instructions. Yet they are routinely seen through the eyes of the law and the media as fugitives from justice who threaten our communities, and met with unduly harsh punishments.

A cascade of negative consequences befalls those who “fail to appear”: arrest warrants, additional charges, jail and prison sentences, fines and fees, and more. None of these make it any easier to attend court, but they do heap misery and instability on the poorest and most marginalized people in the system.

Building off our previous work examining the role of “failure to appear” in bail processes and advocating for the reduced use of bench warrants, this briefing compiles research on who tends to miss court, why they miss court, and how different jurisdictions react. We also look at how people are organizing to increase court attendance, reduce harm, and importantly, question whether so many of these cases should exist in the first place.


States have a wide range of responses to “failure to appear”

Most jurisdictions provide some wiggle room for those who miss court to defend themselves, but protections are flimsy and quite limited.1 When coupled with a range of severe and counterproductive consequences, court responses to “failure to appear” (FTA) may actually make our communities less safe.

We categorized provisions within 83 laws across the states and Washington, D.C. with help from the National Conference of State Legislature’s Statutory Responses to Failure to Appear database. We find that, on balance, “failure to appear” policies are about punishment, not improving appearance rates:

To see how we categorized each jurisdiction’s policies, see the Appendix table.
Punishments Accommodations
49 jurisdictions including the District of Columbia impose additional criminal penalties, including fines and imprisonment 40 jurisdictions including the District of Columbia consider a person’s intentions in missing court to some degree
23 states allow an individual to mount a defense and attempt to prove to a judge that they were not evading the court
4 states have strict liability, meaning that no intent is required to be criminally responsible for missed court dates 14 states provide a grace period during which a defendant can appear in court before there are consequences
3 states distinguish treatment based on whether or not a person has left the state

Nearly every jurisdiction permits additional charges to be brought against someone who misses court, including the imposition of fines and imprisonment, with the exception of two states: Illinois and Mississippi. Four states — Maine, Michigan, Mississippi, and South Dakota — treat failure to appear as a strict liability offense, meaning no evidence of intent is required to hold defendants criminally responsible for nonappearance. Meanwhile, over two-thirds of jurisdictions make room (on paper, at least) to consider circumstances and intent behind missed court dates, and close to half allow people to defend their absences. Only about one-third of jurisdictions allow some sort of grace period for someone to return to court before facing consequences.

How courts respond to nonappearances can have serious consequences for a defendant’s current and future involvement in the criminal legal system. Failure to appear weighs heavily against defendants in many pretrial risk assessment tools, used to help determine whether someone should be released pending trial. A missed court appearance could tip one’s score in favor of pretrial detention, which could last for months if not years on end. Or it can lead to suffocating conditions of release, such as electronic monitoring or frequent check-ins with pretrial officers.

The influence of missed court dates on risk scores has direct consequences for poorer defendants, who are more likely to miss court because they lack childcare or transportation, or can’t take time off from work. And because these tools compute risk scores based on a person’s demographic characteristics and record (e.g., past missed court dates, the charges they are facing, age, etc.) rather than an assessment of their circumstances (employment and housing status, health considerations, etc.), they only reinforce the underlying issues that cause missed court appearances in the first place.

Even in places that don’t use risk assessment tools, a judge’s contempt for someone who misses court can weigh heavily against a defendant’s interests to remain in the community, and in favor of pretrial detention instead. Typically, from a judge’s perspective, missed court dates give the impression that a defendant does not take their case seriously, and absences lead to further delays and inefficiencies — a major concern for overburdened courts with large caseloads.


Most people are not evading justice and don’t threaten public safety

Opposition to bail reform is primarily led by the commercial bail bond industry, which profits off of the money bail system responsible for so much pretrial detention. Bail bond agents don’t have the strong incentive you’d expect to ensure people make it to court: The industry exploits loopholes and lax enforcement to avoid paying forfeited bonds when clients miss court dates. What’s more important for them is ensuring there is a steady stream of people detained pretrial who are desperate enough to pay bondsmen to get out of jail in the first place. Though they like to say they are in the business of getting people out of jail, in reality bail bondsmen prey on people who are stuck in pretrial detention. Harsh punishments for failure to appear, which make pretrial detention and financial release conditions more likely in future cases, help sustain this industry.

Graph showing that 13% of people who miss court dates are facing charges classified as violent, while the other 87% are facing charges classified as nonviolent.

To scare people onto their side, opponents often lean on the specter of “the criminal,” freed from jail but “defying” law enforcement by missing court and lurking in the community. But the reality is quite different: most people who miss court are facing low-level charges and are not evading court at all.2 In fact, roughly 25% of cases are eventually dismissed altogether, suggesting many of these people should never have been charged in the first place.

Most people who miss court are trying to attend but cannot. One report examining the reasons people miss court, conducted in Lake County, Illinois and published earlier this year, found that people simply have competing responsibilities, face logistical and technical challenges they cannot overcome alone, or are struggling with past experiences and emotional reactions. Many people are navigating more than one of these barriers to appearance at a time. Some examples from Lake County include:

Reasons given by 50 people who returned to jail for missing court in Lake County, Illinois, by type of barrier, in a 2023 study by Justice System Partners.
Life Responsibilities Logistical or technical concerns Past experiences and emotional reactions
Managing mental health diagnosis and medication compliance Live in another county or state and either challenging public transit or none at all Fearful or scared about process and going to jail
Moving a lot, securing shelter, navigating homelessness Unreliable car and either a suspended driver’s license or no license Nervous or scared
Serving as a primary caregiver Bus segments don’t line up Overwhelmed
Managing drug use and treatment responsibilities No computer or internet to use virtual option Court actors are unhelpful or refuse to help
Nightshift, newborn exhaustion, and forgetfulness No password to Zoom or password not working Court actors are intimidating or seem purposefully aggressive
Navigating custody and divorce cases No directions for Zoom or not listed on Zoom Confusing process, lack of information, too much information, conflicting information
Challenging family and relationship dynamics Address issues for notices Confusing navigating building or technology
Managing work responsibilities Racist, ableist, stigmatizing experiences with the court
COVID, sick, or hospitalized

Even when people miss court, most return within a year. Take for example this study from the Bureau of Justice Statistics, which focused on felony cases in the 75 largest urban counties in the U.S. Roughly 25% of people who were released without the involvement of a bail bond agent missed a court date. However, fewer than 8% failed to return to court within a year. Meanwhile, in July of this year, the Judicial Council of California released a report evaluating a pretrial release pilot program that began early in the COVID-19 pandemic, which sought to increase pretrial release rates and included a text message and phone call reminder service for court dates. Looking at a total of 422,151 people assessed as part of the pilot program, they noted a 6.8% decrease in failure to appear rates for people facing misdemeanor charges.3 This is consistent with other evidence showing that when people are met with support, they do show up: figures from The Bail Project’s 2022 annual report show that the people they supported had a 92% court appearance rate.

Additionally, people who tend to miss court do not pose a danger to the community. A 2013 study from the Bureau of Justice Statistics showed that people facing more serious charges missed court less often than people with lower-level offenses. Nearly 87% of people who missed court were facing property, drug, or public order charges, compared to 13% who missed court while facing charges for violent offenses.4


Missed court dates don’t make us less safe — but court responses to them do

“Failure to appear” is one of the main culprits behind an enormous backlog of warrants in the U.S. Bench warrants, issued by courts for procedural issues like missed court dates, order the police to find and arrest a person and bring them before the court. Such warrants arguably have a stronger negative impact on public safety than missed court dates themselves.

One 2018 Washington Law Review article, “Dangerous Warrants,” surfaced data from Omaha, Nebraska showing more than 40% of all outstanding warrants were for “failure to appear,” and 33% of people sought were Black in a city with a Black population of just 13%.

Meanwhile, a report from the North Carolina Court Appearance Project examining jail booking data from January 2019 to June 2021 found that “failure to appear” for misdemeanor charges was the most common reason people were jailed. Put another way, many of these people were jailed for missing court for original charges that would never have resulted in jail time. Many bench warrants are left outstanding and are never actually served, leaving the threat of arrest to linger over someone’s head in perpetuity. In this way, open bench warrants can be deeply counterproductive to the court’s stated goal of court attendance and even corrosive on public safety. While it’s uncommon for people in this situation to engage in criminal conduct, warrants help create conditions in which it may be more logical to do so. As explained in professor Lauryn P. Gouldin’s University of Chicago Law Review article, “Defining Flight Risk,” warrants create a fear of additional punishment that can dissuade someone from pursuing legitimate and stable employment for fear of being exposed on a background check. That fear might also cause someone to fail to obtain a driver’s license or apply for public benefits they need to survive. On a more personal level, it can lead to extreme stress and mental health deterioration, and cause severe strains on important relationships with friends and families. These factors can cause an inadvertently missed court date to become a persistent one, and force people to turn to crime for income and survival.

Taken together, the court’s response to an absence might itself motivate criminalized behavior, and waste law enforcement time and resources. As a result, aggressive court responses arguably pose a greater threat to community health and safety than missing court itself.


Advocates are fighting to change how we treat FTA

Fortunately, there are many people on the ground working to reduce the harm of missed court dates, interrogate the policing behind the charges, and expand pretrial release.

Injecting nuance to distinguish between evasion and understandable absences
As we discussed in our analysis above, many jurisdictions make some level of accommodations for people who miss court, whether it’s grace periods, defense provisions, or language that conditions any punitive responses on intent. This includes laws that are aimed particularly at a “willful” failure to appear, or someone who missed court “knowingly,” “without reasonable excuse,” or “intentionally.” Much of this can be attributed to organizing, such as the work of the Illinois Network for Pretrial Justice and Coalition to End Money Bond in Illinois, who successfully pushed for reforms that only permit judges to detain people pretrial due to a risk of “willful flight” – not simply because they might not appear in court.

Professor Gouldin proposes a different approach involving a policy distinction between “True Flight” and “Local non-appearance.” The idea is to differentiate between someone who has left the area and someone who missed court but remains in the area and is easy to locate. She suggests the court assess absences along a matrix of persistence, cost to the court, and willfulness. Where implemented, this would represent a meaningful and commonsense improvement to court responses.

Providing services to encourage court attendance
In some places, advocates have worked to provide basic supports such as court transportation, housing, food, and health care (including substance use treatment) to people involved in the system who would struggle to attend court without them or may decide to miss court to pursue them. There are also services aimed at providing population-specific needs, such as language support and special help hotlines for immigrants who must attend court. Other advocates have worked to establish phone call and text reminder systems to alert defendants to upcoming court dates. Finally, states like North Carolina are challenging laws that impose financial penalties for missed court dates, like an end to mandatory bond doubling policies that compel judges to double someone’s bond (or secure a minimum bond for $1,000 if none was set before) for missing a court date.

Simplifying court processes
Improving communication and reducing confusion can also improve court attendance. This includes redesigning court forms and implementing flexible scheduling to reduce court wait times, identify which court dates actually require a defendant’s participation, or allow for walk-ins or easier rescheduling. It may also include better communication about court scheduling and rescheduling, since some defendants — and their attorneys — have experienced showing up to court only to find their hearing time or date had been changed.

Advocates have also argued to reduce and eliminate fines and fees, especially for people who cannot afford them, and end the reflexive issuance of bench warrants when people miss court.

Since the pandemic, some places have added the option of virtual court visits — although court systems must examine whether judges are biased in favor of people who attend in-person.

Fighting policing and charges
Perhaps most importantly, advocates are rejecting the fear mongering narrative used by bail reform opponents. They argue the emphasis on missed court dates is a distraction from the fact that so many of the charges for which people are compelled to court are eventually dismissed. According to the 2013 Bureau of Justice Statistics’ study of felony cases in large urban counties, one in four cases ended in dismissal.


Conclusion: The root of the FTA problem

If courts were truly interested in reducing absences, there are many ways they could intervene to reduce the barriers people face to attending court. Instead, jurisdictions have created laws that allow courts to ruin and incarcerate greater numbers of people before they’ve even been convicted of a crime simply for having a scheduling conflict. The accommodations we have highlighted in our analysis of state laws are good, but are not enough on their own to reduce the frequency and harm of missed court dates.

As we have said throughout this piece, harsh punishments for missed court dates inject instability into our communities, and increase the likelihood of potentially dangerous police encounters. Adding insult to injury, this approach often escalates punishments for underlying charges that, at the end of the day, would not involve jail time and are frequently dismissed.

“Failure to appear” does not threaten our safety in the way that bail reform opponents present it — what’s more pernicious is how it has traditionally been used as a backdoor to punishing people before they’ve even been convicted of a crime. In addition to stopping unnecessary policing that ensnares people in criminal legal processes in the first place, more work needs to be done to actually address obstacles to attendance and move away from harsh and punitive postures toward missed court dates.

Correction, Feb. 1, 2024: We updated our categorization and tally of jurisdictions that impose criminal penalties, including fines and imprisonment, to include District of Columbia, Louisiana, Massachusetts, Montana, New Hampshire, New York, Oklahoma, and South Carolina. We regret the error.



For details about the laws in every state that govern court responses to “failure to appear,” see the appendix table at:



  1. Ultimately, whether a person’s “failure to appear” is excused is left to a judge’s discretion. It’s important to note, then, that our findings are based on laws and policies, and are not necessarily reflective of how those laws are or are not applied.
  2. Technically speaking, many “failures to appear” can be attributed to jails themselves: One in four people jailed in New York City miss court hearings and trials due to transportation delays. Last year in Los Angeles, 40% of county jail transport buses broke down, causing many people to miss court and spend more time locked up.
  3. The Judicial Council’s report did find a statistically significant increase in failure to appear rates of 2.5% for people facing felonies, but this may be a consequence of COVID-19-related disruptions prolonging court proceedings for people facing such charges. The longer the court proceedings, the more opportunities there are for people to miss court dates, and felony cases are typically much longer than misdemeanor cases.
  4. It is important to note that what constitutes a “violent crime” varies from state to state. An act that might be defined as violent in one state may be defined as nonviolent in another. Moreover, sometimes acts that are considered “violent crimes” do not involve physical harm. For example, as The Marshall Project explains, in some states entering a dwelling that is not yours, purse snatching, and the theft of drugs are considered “violent.” The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its report Defining Violence.

New Census Bureau data show the U.S. population is getting older — and at the same time, our prison populations are aging even faster. In this briefing, we examine the inhumane, costly, and counterproductive practice of locking up older adults.

by Emily Widra, August 2, 2023

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.


Aging throughout the criminal legal system

Older adults1 are increasingly ensnared in all parts of the criminal legal process: in arrests, pretrial detention, and imprisonment. In 2000, 3% of all adult arrests involved people aged 55 or older, and by 2021, this older population accounted for 8% of all adult arrests.2 According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.3

two bar charts showing people in prison 55 and older as a percentage of adult arrests and people in prison, increasing from 1991 to 2021

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%.4 This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison.


The dangers of aging in prison

Prisons are unhealthy places for anyone of any age, but keeping older adults locked up is particularly dangerous. A robust body of research shows that incarceration itself accelerates aging: people face more chronic and life-threatening illnesses earlier than we would expect outside of prison, and physiological signs of aging occur in people younger than expected. In addition, a conservative estimate of more than 44,000 people 45 and older experience solitary confinement in state prisons each year, in conditions that shorten lives and can be detrimental to physical, mental, and emotional health. Years of limited resources, inaccessibility, and understaffing in prison healthcare have created a situation in which each year spent in prison takes two years off of an individual’s life expectancy. The same scarcity of prison healthcare resources that jeopardizes older people’s health is not just ineffective-it’s also exorbitantly expensive.


The high costs of incarcerating older people

State and federal governments spend increasingly more money on consistently inadequate healthcare for their growing populations of older adults. While most studies on the steep costs of incarcerating older people date back at least a decade, their findings are consistently dramatic. For example, in California prisons in the 1990s, the state spent three times as much money to incarcerate an older person than someone of any other age group. Considering the proportion of California’s prison population over the age of 50 has risen from about 4% in 1994 to 25% in 2019, and that prison healthcare spending per-person has ballooned in the intervening years, the cost of incarcerating older adults only appears to be growing. In 2013, the federal Bureau of Prisons (BOP) spent 19% of its total budget — or $881 million — to incarcerate older adults. That same year, the BOP reported this group was the “fastest growing segment of its inmate population” with a 25% increase over the course of a single year (as the rest of the population decreased by 1%).

As long as people are in prison, they should receive the care they need to be safe and healthy. But especially at the state and local level, every dollar spent in prisons is a dollar that could have expanded and improved community health services — and provided superior care. It doesn’t make much sense to spend so much money locking people up in places that are not only dangerous to their health, but more costly to care for them — especially when there is little public safety argument to justify doing so.


Low risk of re-arrest and re-incarceration for older adults

The older someone is, the less likely they are to be arrested following release from prison, according to the most recent government study of recidivism. In fact, people released at age 65 or older are the least likely of any age group to be re-arrested in the five years following release:

line graph showing re-arrest trends for five years after release from state prison, highlighting people 65 and older as lowest risk

Decades of research reinforces these findings: formerly incarcerated older adults are among the least likely to be re-arrested, re-convicted, and reincarcerated.


Decades of “tough on crime” policies contributed to the aging prison population

The incarcerated prison population is getting older much more quickly than the general population because of policy choices throughout the criminal legal system.


Policing disproportionately targets populations that often include many older adults: unhoused people, people who use drugs or alcohol, and people with cognitive disabilities. Nationally, the unhoused population is growing older. From 2007 to 2014, the number of unhoused people over age 50 expanded by 20%, and in 2014, this age group accounted for more than 30% of people experiencing homelessness. Given that unhoused people are up to 11 times more likely to be arrested than housed people, the likelihood of arrest for older, unhoused people is undoubtedly growing over time. Drug-related arrests among people aged 50 and older nearly doubled from 2000 to 2018, indicating a dramatic increase in criminal legal system involvement.

The criminalization of mental illness among older adults is significant as well. One in nine people aged 65 and older have Alzheimer’s dementia (one of many kinds of dementia). The most recent national data available indicates that people with cognitive disabilities are overrepresented in jails and prisons: 31% of people in jails in 2012 and 24% of people in state prisons in 2016 reported a cognitive disability. As greater numbers of older adults with cognitive disabilities encounter police,5 older prison populations are likely to grow.


State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.


Tools to reduce the aging prison population remain underutilized

While attention to this crisis has grown in recent years, many of the available tools — such as parole and compassionate release — have been underutilized. The failure to release older adults from prison has deadly repercussions: from 2001 to 2018, over 30,500 people aged 55 or older died in prison and almost all of these deaths (97%) were due to illnesses.12


In a study of parole in Maryland, the Justice Policy Institute found that between 2017 and 2021, parole grant rates are highest for people between the ages of 31 and 35 (43%) with rates declining as age increases: people over 60 are paroled at a rate of 28%. Older adults serving long sentences are often denied parole, with boards focusing on the nature of their original offense instead of their preparedness for reentry.13 That being said, parole is not even an option for large swaths of the prison population. Almost half of all people serving life without parole (LWOP) sentences are at least 50 years old, and one in four is at least 60 years old. Even some “geriatric” or “elder” parole laws, intended to facilitate the release of older incarcerated people, needlessly exclude many older people who would otherwise be eligible; for example, the Justice Policy Institute points out that the Maryland law only applies to older people with multiple convictions.

Compassionate release

Compassionate release (often called medical parole) is an important release mechanism for older adults, but is not used nearly often enough. The application process is cumbersome and opaque, and many people die before they ever receive a decision.14 In addition, decisions about medical eligibility for release are often filtered through state parole boards, whose membership often includes former corrections officials, former parole or probation officers, and former prosecutors. These are not vocations particularly invested in release, much less promoting individual health and wellbeing outside of the carceral system. Parole boards’ lack of knowledge about serious and terminal illnesses, as well as the general aging process, can create significant barriers to release. Physician reluctance to offer a prognosis, parole board rejections of medical recommendations, offense carveouts,16 and barriers to discharge planning15 also factor into the underutilization of compassionate release. Some states (like Iowa) do not even have such a release program.

The result: Nursing homes behind bars

As a result of the disastrous failure to make use of existing release systems and increasing public pressure to address the aging prison population, prisons have adapted in very troubling ways. In Connecticut, Kentucky, Tennessee, and Wisconsin, departments of corrections have created “prison nursing homes” to keep people incarcerated even when they are far too sick or frail to represent any kind of public safety threat.17 The continued incarceration of people who would otherwise be receiving residential or long-term care reflects a troubling trend of prisons “gearing up to become nursing homes, but without the proper trained staff and adequate financial support.”

Re-entry barriers

Even when older adults are approved for release from prison, they often face a barrage of challenges in the community.

Many people released from prison — regardless of age — struggle to obtain adequate and affordable housing, employment, and healthcare. For older adults, these concerns can be magnified as any amount of time spent in prison disrupts healthcare services and increases the challenges of (re)connecting with them after release. Older adults also have fewer relationships with people on the outside, face discrimination in healthcare settings like nursing homes, and come up against legal and regulatory barriers to accessing benefits like Supplemental Security Income and Medicare.

The sheer number of complex and overlapping barriers placed before formerly incarcerated older people is staggering:

Employment and
income barriers
Reduced family/friend networks, or reduced connection with family Criminal legal system involvement Logistical barriers for enrollment in Medicare/Medicaid
Untreated mental illness Mental health status Unstable housing
Untreated substance use Physical health status Functional or cognitive disabilities
Costs of housing Prior employment history (gaps) Health literacy
Public housing restrictions Logistical barriers for enrollment in SSI/SSDI Distrust of institutions/public benefits
Landlord discretion Age discrimination
Nursing homes/congregate housing restrictions Lack of (reliable) transportation

Barriers to admission for nursing homes and other necessary healthcare facilities are particularly awful for people who have a terminal illness and are released via compassionate release. In Connecticut, many nursing homes will not even consider admitting people released from prison, and in Florida, people who have been convicted of sex offenses and released from prison often live in motels because they are routinely turned away from nursing homes. Formerly incarcerated older adults facing chronic and terminal illnesses are often forced to rely on an “ad hoc network of care” for their medical needs.


Reducing the aging prison population

If we hope to address this crisis, more work needs to be done to curb arrests of older people, to divert them to better community support, and to reduce their numbers behind bars. The decriminalization of homelessness and substance use — as well as expanded diversion services for older adults — can reduce their risk of arrest and detention. States can also send fewer people back to prison by eliminating parole revocations for technical offenses that reincarcerate people for actions that, were the individual not on parole, would not be crimes at all.

To reduce the number of already-incarcerated older adults, state and federal governments can make use of presumptive parole, second-look sentencing, and the retroactive application of sentence reduction reforms, as well as the many other mechanisms to shorten excessive prison sentences outlined in our 2018 report, Eight Keys to Mercy: How to shorten excessive prison sentences. All states should have compassionate release or medical parole available to release older adults and those facing chronic and terminal illnesses. States can also reduce existing barriers to compassionate release by eliminating exclusions based on offense type, relaxing eligibility criteria, and simplifying the application, review, and approval process.18 Elder parole policies that implement automatic parole consideration for older adults who have already served some portion of their sentence can further reduce the number of older people behind bars, simplifying the process of getting out of prison for some of the most medically vulnerable people.19

Finally, states and the federal government need to expand the social safety net to support older adults released from prison. There are numerous interventions to support reentry by reducing housing and employment barriers, encouraging access to healthcare and health insurance (including Medicare and Medicaid), and simplifying application and re-enrollment for Social Security benefits, as well as many more crucial supports outlined in this 2022 issue brief from Justice in Aging.



The crisis of our aging prison population is not an accident but the result of policy choices that hurt incarcerated people, their loved ones, families, and communities. Fortunately, we can address these policy missteps.

In order to provide older incarcerated people with adequate healthcare, end of life care, and dignity, we need to find ways to reduce their numbers in all parts of the carceral system. Existing tools — like compassionate release and parole — can help but are not enough to address this problem on their own. States should follow the lead of advocates who are fighting to reduce police encounters, end draconian sentencing like life without parole, and expand release mechanisms like elder parole. Reducing barriers to enrollment in Medicare, Medicaid, Social Security, and ensuring people have safe places to live in our communities can expand the safety net for older adults leaving prisons. Ultimately, the benefits of such changes will not be recognized only by older adults in the system but the broader population as well.


Appendix: State prison populations aged 55 and older, 1999‑2019

For the number and percent of people 55 and older in state prisons by state from 1991 to 2019, see the appendix table at:



  1. Throughout this report, “older adults” refers to people aged 55 or older.  ↩

  2. Arrests in the United States by age and sex, 2000-2021 from the Federal Bureau of Investigation’s Uniform Crime Reporting Program, Crime Data Explorer.  ↩

  3. At midyear 2020, there were 40,500 people aged 55 or older confined in local jails and by midyear 2021, there were 50,100 people 55 or older in local jails, representing an increase of 24%. Focusing on the oldest age group for which data is collected, the number of people 65 or older expanded from 7,400 to 9,400 (a 27% increase) from 2020 to 2021. See Table 2 in the Bureau of Justice Statistics’ Jail Inmates in 2021 — Statistical Tables for demographic data about people confined in local jails (age data only available in 2020 and 2021).  ↩

  4. An estimated 3.4% of sentenced people in state and federal prison in 1991 were 55 or older. This estimate is calculated based on the data reported in Table 1 of the Bureau of Justice Statistics’ Comparing Federal and State Prison Inmates, 1991: 6.8% of the 54,006 people in federal prison and 3.1% of the 704,203 people in state prison were 55 or older. As a percentage of the combined federal and state prison populations, 3.4% of people in state and federal prisons were 55 or older. An estimated 15.3% of the sentenced state and federal prison population in 2021 were 55 or older, based on Table 10 of the Bureau of Justice Statistics’ Prisoners in 2021 — Statistical Tables.  ↩

  5. Police encounters are often deadly for disabled people but often go unseen in media reports. A 2016 study notes that while disabled individuals make up a third to a half of all people killed by police, their disability often goes unmentioned in news reports.  ↩

  6. For example, the Rockefeller drug laws in New York increased sentence lengths and instituted mandatory minimum sentences. By the end of the 1980s, all 50 states and D.C. enacted some sort of mandatory minimum laws, and this was still the case in 2021.  ↩

  7. By 2000, 24 states and Congress had passed three-strikes legislation.  ↩

  8. By 1995, eleven states had adopted truth-in-sentencing laws. By 1998, 27 states and DC met the eligibility criteria for the Federal Truth-in-Sentencing Incentive Grant Program.  ↩

  9. The Sentencing Reform Act of 1984 abolished federal parole for federal crimes committed after November 1, 1987. By the end of 2000, 16 states had abolished all discretionary parole.  ↩

  10. In 1981, Connecticut lawmakers reduced the amount of “good time” credits that could be earned from 15 days to 12 days per month, resulting in an increase of the average time served by “about 20%.” The Sentencing Reform Act of 1984 also reduced the amount of time that could be earned for good conduct for people in federal prison.  ↩

  11. The federal 1994 crime bill and numerous state laws were passed in the 1980s, 1990s, and early 2000s as part of a “tough-on-crime” campaign to lock people up for longer than ever before.  ↩

  12. The types of illness vary from terminal illness (such as cancer) to illnesses that are often preventable or treatable for some time outside of prison (such as “AIDS-related illnesses,” respiratory disease, liver disease, heart disease, and influenza).  ↩

  13. In some states, the reasons for parole denial can be based on the original offense, no matter how long ago an individual was convicted and regardless of the fact that the seriousness of the crime was inevitably taken into account at sentencing, and that discretionary parole is fundamentally about release based on personal transformation.  ↩

  14. According to The New York Times, between 2013 and 2017, the federal Bureau of Prisons (BOP) approved only 6% of the 5,400 compassionate release applications received; meanwhile, 266 other applicants died in prison. The Times’ analysis of federal prison data shows that it takes over six months, on average, for an incarcerated person to receive an answer from the BOP. In one tragic example, prison officials denied an application for someone because the BOP put aside prison doctors’ prognosis of less than six months and concluded that he had more than 18 months to live. Two days after receiving the denial, he died.  ↩

  15. A 2021 bill in Colorado streamlined the medical release process, but 23 incarcerated people who were approved for parole remained in prison because the state Department of Corrections “could not find a nursing home willing to admit them.” Similarly, in Florida, many older adults with sex offense convictions are denied by nursing homes.  ↩

  16. For example, a 2015 study found many states automatically exclude people convicted of murder (at least 7 states) or “sexually oriented crimes” (at least 11 states). Some states even exclude people based on prior offenses, regardless of the offense they are currently serving time for. Other states only allow compassionate release and medical parole for people who have parole-eligible offenses or for people who have already served a certain portion of their sentence.  ↩

  17. The ad hoc development of “prison nursing homes” is a waste of resources that would be better spent on medical, social, and emotional support outside of the carceral system for aging adults. In Pennsylvania, the state reportedly spends more than $3 million each year just to “medicate” the older adult population housed in their three long-term care prison units.  ↩

  18. For additional recommendations regarding compassionate release, see FAMM’s ongoing work to expand compassionate release across the country.  ↩

  19. For more information on the implementation of elder parole, see RAPP’s advocacy for New York’s proposed elder parole legislation.  ↩

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