Life sentences, longer term-of-year sentences, confinement without opportunities for parole, limiting parole eligibility until many years of the sentence are served, parole boards’ reluctance to grant parole, and legislative efforts to limit executive pardons and commutations all coalesce into the graying of this nation’s inmates and the increased costs of confining the elderly.
The number of older inmates is increasing in both state and federal prisons due to many years of policy decisions calculated to reflect a more punitive approach to crime. As a result, inmates in these institutions are rapidly aging into the demographic of older or elderly citizens.
“Common conditions in older age include hearing loss, cataracts and refractive errors, back and neck pain and osteoarthritis, chronic obstructive pulmonary disease, diabetes, depression and dementia.” Ageing and Health, World Health Org. (Oct. 1, 2022). “As people age, they are more likely to experience several conditions at the same time.” Id. “Older age is also characterized by the emergence of several complex health states commonly called geriatric syndromes. They are often the consequence of multiple underlying factors and include frailty, urinary incontinence, falls, delirium and pressure ulcers.” Id.
“Older adults are disproportionately affected by chronic conditions, such as diabetes, arthritis, and heart disease. Nearly 95% have at least one chronic condition, and nearly 80% of [sic] have two or more. The leading causes of death among older adults in the U.S. are heart disease, cancer, COVID-19, stroke, chronic lower respiratory diseases, Alzheimer’s disease, and diabetes.” Get the Facts on Healthy Aging, Nat’l Council on Aging (Oct 20, 2023).
These physical and mental health conditions plague older inmates at the same or greater rate than among the population at large. Although these elderly inmates often require more extensive medical care than younger inmates, prison medical care is frequently inadequate to treat these older prisoners. Legislation that lengthens sentences or restricts the opportunities for earlier release seldom, if ever, contains a funding supplement that ensures medical care, including mental health resources, for inmates who will remain confined well into their elderly years.
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. Despite recent efforts to address the aging of this nation’s prison population, some jurisdictions are considering or legislating the return to lengthy sentences of imprisonment and more restrictive policies on early release such as parole and executive clemency.
These laws and policy changes are being pursued in a period when violent crime is statistically lower than in the recent past. “The FBI’s crime statistics estimates for 2022 show that national violent crime decreased an estimated 1.7% in 2022 compared to 2021 estimates.” Press Release, FBI, FBI Releases 2022 Crime in the Nation Statistics (Oct. 16, 2023). Nevertheless, many politicians hype that violent crime is rising to support the return to lengthy prison sentences and restrictions on parole and executive clemency, which have not been particularly successful in the past. This same hype is being advanced to thwart sentencing reform.
Extensive studies reveal that the lowest rate of recidivism is among those individuals who are 50 years old or older. Lengthy sentences of confinement are not actually protecting society from future recidivists, but rather simply punishing elderly inmates by forcing them to endure the physical and mental disabilities of aging without adequate health care.
Adequate health care for elderly inmates is costly. As early as 2004, “[t]he annual cost of incarcerating this population [the elderly] has risen dramatically to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population.” US Dep’t of Just., Nat’l Inst. of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates, at 11 (2004). Twenty years later those costs—due to the passage of time and inflation—have obviously increased.
Elderly inmates with physical and/or mental conditions often face difficulties in navigating a prison environment, both the physical structures and compliance with rules and regulations. From hearing loss to dementia, these impediments are obstacles to conforming in a structured institutional environment. Seldom do prison disciplinary tribunals factor into the guilt/punishment equation an inmate’s mental or physical infirmities when deciding infractions and punishments. This is especially a problem for elderly inmates. Although mental health reports may be sought or provided as evidence to mitigate guilt or punishment at some prison disciplinary proceedings, this is an infrequent accommodation to prisoners of any age. Instead, there is evidence that prison medical staff routinely clear infirm inmates of all ages for disciplinary punishment and even solitary confinement, which appears to be unethical for a medical provider.
The symptoms of dementia or Alzheimer’s disease will impact an older inmate’s ability to function in prison in conformity with the guards’ oral directions as well as prison policies and regulations. Impacted elderly prisoners will often be unable to complete tasks without assistance or need more than the usual amount of time to complete routine institutional tasks. Repeating questions, trouble recalling names of guards and inmates, often misplacing items, inability to remember how items function, and losing the way in the facility and being unable to retrace a route will lead to confrontations with guards and other inmates and additional write-ups for disciplinary violations. Recognizing Symptoms of Dementia and Seeking Help, Ctr. for Disease Control & Prevention (June 29, 2023). Those prisoners afflicted with dementia or Alzheimer’s disease face a greater chance of repeated disciplinary actions, which could lead to frequent stints in solitary confinement.
Though there is no cure for Alzheimer’s disease and dementia, some medications can temporarily ease some symptoms, and others may slow the progression of the disease. Yet the cost of many of these medications is high and frequently unavailable to elderly prisoners suffering from these conditions. Early diagnosis is very helpful to treating the onslaught of Alzheimer’s disease and dementia, but prison medical services are usually not able to provide such early diagnoses, let alone treatment. Correctional health care is most often low-quality and difficult to access. Additionally, in many prisons it is expensive, with many prisons charging inmates a co-pay for doctor visits.
To diagnose Alzheimer’s disease or other forms of dementia, competent medical providers initially rely on a battery of sophisticated and objective tests that probe various areas: different types of memory, language, executive function, problem solving, and spatial skills and attention. Examples of routine memory lapses or instances of mental confusion are insufficient to diagnose these mental conditions. Prison medical services need to have access to objective mental assessment tests as well as providers capable of administering and interpreting such examinations. These approaches require adequate funding.
Legislatures when enacting lengthier sentences for offenders do not ordinarily anticipate the increased costs for housing and providing medical care for prisoners who will age out in prison due to those longer sentences. The same is true for legislation restricting release on parole or via executive clemency. Those penal laws do not usually include additional funding for addressing the needs of the increased number of elderly prisoners those laws will generate.
Sentencing judges and, in some jurisdictions, sentencing juries should be provided with information about not just parole eligibility for the sentences being considered, but the presence or lack of inmate medical care in the jurisdiction, and the convicted defendant’s present medical condition as well as statistical projections on the various medical conditions the defendant will likely face as the extended sentence is served. The sentencer should know that a lengthy sentence of confinement, due to the conditions of the available prisons and their services, may condemn the convicted defendant to punishments not enumerated in the law, such as the absence of medical care for elderly inmates, who will be plagued with the numerous medical conditions inevitably found in all individuals as they age. Such an approach to sentencing would no doubt require jurisdictions to monitor and prepare official reports on the conditions and available medical services in prisons for use in sentencing. That monitoring of prisons and those reports would be a collateral benefit of this type of sentencing information.
Prison medical care for all inmates, regardless of their ages, has long been a neglected aspect of punishment. Condemning convicted defendants to sentences that could result in them spending their lives in prison dealing with heart disease, cancer, COVID-19, stroke, chronic lower respiratory diseases, Alzheimer’s disease, and diabetes with little or no medical treatment is a reality that legislatures, courts, and sentencers need to recognize and address. The choices seem to be either reduce the length of sentences and restrictions on parole and clemency eligibility or reform prisons to provide adequate facilities and medical care to address the needs of elderly inmates.
