One legacy of the “tough on crime” era is the aging prison population. From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. More than 10,000 federal prisoners are in their 60s, 70s or 80s. Older inmates have significantly higher medical costs than younger inmates, and often need special accommodations (such as lower bunks or wheelchair-accessible areas) that prisons are ill-equipped to provide. In an effort to address these issues, AG Holder announced an expanded compassionate release program for inmates who were elderly, seriously ill or both. But the Washington Post reports that only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.

What is the problem? In part its that the “default” for decision-making about compassionate release is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.

Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.