Katherine Mereand-SinhaProfessor TurleyPOPS SeminarAugust 1, 2012

International Comparison: Issues in the Incarceration of the Elderly

As the populations of countries all over the world age, and life expectancies

continue to increase, judicial and corrections systems the world over have begun to

ask themselves whether elderly prisoners present a unique challenge or deserve

special treatment. Whether the question is simply the additional needs of the elderly,

and the difficulty of their provision and delivery within a prison context, the moral and

ethical issues involved with their continued confinement, or whether there was simply

any benefit to society from that detention, and the costs involved, there appear to be

no clear systems, principles, or frameworks for thinking about, and developing policies

regarding, the incarceration of the elderly.

I. Who are elderly prisoners?

There are, broadly speaking, two types of elderly 1inmates found in corrections

systems around the world; once-youthful offenders still detained pursuant to a

prolonged sentence, and new inmates who committed crimes at an advanced age.

These two groups present different difficulties conceptually and societally, though

many of the same problems operationally.

1 Robert Morris, Francis Caro, & Jill Norton, Advancing Aging Policy as the 21st Century Begins, Haworth Press, 168 (2000).

In societies and judicial systems that consider punishment to be a central

purpose of the corrections system, actual life sentences (“life-without-parole”) are often

seen as the only alternative to capital punishment in cases of sufficient seriousness.2

Discussing clemency for elderly prisoners who offended decades before presents the

complexity of arguing that incarceration is an unreasonable affront to the dignity and

rights of an offender previously deemed to “deserve” this penalty or potentially one

even more harsh.

Conversely, in judicial systems that hold rehabilitation and reintegration as the

central goal of the corrections system,3 discussing early release for inmates of

advanced age generally revolves around the potential for the individual to reoffend (and

their basic capacity to do so). Such a discussion would involve recidivism data, not

meditations on securing justice for the victim,4 or even the difference on effected

deterrence between a twenty year sentence and the full life-without-parole.

Finally there is the conversation about the second set of inmates, the recently

offended elderly. Here questions of underlying eldercare issues, of mens rea in an

environment of declining mental capacity,5 and the question of whether rehabilitation or

2 Catherine Appleton and Bent Graver, The Pros and Cons of Life Without Parole, 47 BRIT. J. CRIMINOLOGY 597 (2007), available at: http://bjc.oxfordjournals.org/content/47/4/597.full.

3 Francis Allen, Criminal Justice, Legal Values and the Rehabilitative Ideal, A. 50 J. Crim. L. & Criminology 226 (1959-1960).

4 John Darley, The Psychology of Compensatory and Retributive Justice, 7 Personality and Social Psychology Review, 324 (2003).

5 Yoram Barak, Tova Perry, Avner Elizur, Elderly Prisoners: A Study of the First Criminal Offence in Old Age, 10 International Journal of Geriatric Psychiatry 511 (1995).

correction, versus simple secured retirement, are even valuable goals for inmates with

a life expectancy of perhaps less than a decade remaining.

For all elderly inmates, specialised medical services, the need for security

against younger, stronger, and potentially more aggressive inmates from the general

population, and particularly the mental health implications of age and imprisonment6

also raise questions of whether and how to frame, form, and deliver incarceration7.

II. Why do we imprison?

The United States is one of only a few first-world countries that explicitly and

primarily frames incarceration as a form or “retributive justice”, or punishment8 (and

perhaps, vengeance). From this unique principle flows a wide variety of differences in

approach to most questions regarding corrections. It is a perspective that is (to

perhaps a lesser degree) shared by the other British antecedent nations,9 such as

Australia, Canada, and the UK itself. On one level, this increases interest in their

approaches, as the underlying societal understanding and priorities are more similar.

On another, other nations with a different relationship to the issue pursue alternatives

that provide a greater contrast, and sense of alternatives, than do the US’ closer

cousins.

6 John Williams, Social Care and Older Prisoners, Journal of Social Work, published online before print, February 21, 2012, available in SAGE Journals.

7 Felicia Cohn, The Ethics of End-of-Life Care for Prison Inmates, 27 Law Medicine & Ethics 252 (1999).

8 Joseph Weiler , Why Do We Punish--The Case for Retributive Justice, 12 U. Brit. Colum. L. Rev. 295 (1978).

9 Julian Roberts & Hough Roberts, Understanding Public Attitudes to Criminal Justice, McGraw-Hill International (2005).

Most first world nations agree on the need to provide10 personal deterrence

(incentives for the offender to avoid repeating the prohibited conduct), general

deterrence (“pour encourager les autres”), rehabilitation beyond deterrence, and to

ensure interstitial safety by removing the offender from society while rehabilitation is

taking place. Yet, without the concept of justice and redress flowing from punishment,

that the prison term also serves to even the scales and provide for a sort of equity

requiring equal disutility, the evaluation of appropriate sentences11 has more to do with

sociology and psychology, and less to do with social outrage, the political ambition of

prosecutors and judges, and (potentially religiously informed) concepts of morality and

soteriology.

While comparisons between the US (and as mentioned, to a lesser extent the

remainder of the Anglosphere) and the rest of the world, in terms of their approach to

the issue of elderly incarceration provides for interesting contrasts, without considering

the desire of the American public for revenge against the inmate, it will be impossible

to understand why the United States employs the means it does, nor why other

approaches that may seem more humane and at the same time more practical may in

fact not be easily practicable domestically.

10 Stanley Cohen, An Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment, 27 McGill L.J. 73 (1981-82).

11 Marie Gottschalk, The Long Reach of the Carceral State: The Politics of Crime, Mass Imprisonment, and Penal Reform in the United States and Abroad, 34 LAW & SOC. INQUIRY 439, 444 (2009) [hereinafter Gottschalk 2009].

Political Considerations.

The nature of political oversight of the judicial and corrections systems has a

direct impact on the outcomes and policies of those systems.12 Binary, “conflict”-

oriented political contests between two parties competing in “first past the post”

plurality victory single member districts tend towards populist rhetoric, ratcheting

criminal penalties, and dramatic sensationalism regarding crime. Societies with multi-

party coalition systems, and multi-member districts with proportional representation

demonstrate a greater separation between the demonstrated sources of political

cleavage and criminal justice policy.

The United States is generally particularly vulnerable to the politicization of

criminal justice and penal policy as a result of much of that policy being determined at

the state level, where one finds the widespread election of district attorneys, state

attorneys general, and even lower level judges. With the need of all of these office

holders to face the public, they are far more willing to support immoderate penalties

than the chance that they will be seen as “soft on crime” with an overabundance of

compassion for the unsympathetic offender and lacking in compassion to the more

sympathetic victims of crime. In nations where these offices are held by civil servants,

such as Finland,13 references to public opinion or outrage, or vague invocations of

visceral instincts of “justice” are essentially absent (in sharp contrast to the US) in favor

of references to policy experts and academic studies.

12 Id. at 459.13 Id. at 460.

One of the central questions regarding elderly offender incarceration, viz.

whether to imprison and if so, for how long in light of the lower life expectancy, cannot

be understood without looking into the ethical restraint on corrections that is often

described as “cruel and unusual punishment”. In framing some penalties as cruel and/

or unusual, many societies (not simply the US, which happens to have that phrase in its

constitution) accept that regardless of public wishes or policy guidance, some potential

penalties will be out of bounds due to then–present standards of dignity that even

criminal offenders must be allowed to retain, as well as (international/intranational)

community standards that many not be objective, or even morally significant, but in

having become norms, become a meaningful standard for restraint.

Capital Punishment is an issue that is currently the subject of a great deal of

debate in light of these standards. Many societies have already embargoed death

sentences,14 and in others moratoria are being imposed. Community standards are in

flux. Often these sentences are being replaced by life imprisonment without parole,

which is itself beginning to be seen in some quarters as inhumane.

With this as a tableau, the question of “compassionate relief”, the idea that a

dying prisoner should die free, rather than behind bars, has become one of the central

questions confronting elderly offender corrections. Is it inhumane to deny people

freedom before they die? Ought sentences reflect life expectancies, and intentionally

give hope a priori of compassionate relief that freedom will eventually be theirs? What

is the purpose of keeping a dying prisoner incarcerated, and if they are to be released,

14 Catherine Appleton and Bent Graver, The Pros and Cons of Life Without Parole, 47 BRIT. J. CRIMINOLOGY 597 (2007), available at: http://bjc.oxfordjournals.org/content/47/4/597.full.

how “dying” must one be? (After all, as the old joke goes, life is a terminal condition

without cure).

III. Moral Codes, Populism, & Ethnic Diversity

Attitudes towards crime are a constant puzzle; fear across the first world is

increasing even as crime declines. Having largely defeated questions of starvation or

exposure, affluent modern societies experience levels of crime demonstrably lower

than in generations past. Despite this, perceived risks from crime, and related worry

compared to that of other, more realistic sources of harm, continue to grow annually.

This “late modern angst”15 has created a political imperative for harsher and harsher

anti-crime measures (including higher penalties) entirely independent of current crime

rates.16

Late modern angst,17 a result of the various dislocations within society that have

occurred in the last several decades, however otherwise salutary, has provoked a

“culture of control”. Unable to rely upon traditional paths, usages, rules, or norms,

afflicted societies and their constituent individuals become obsessed with, and reliant

upon, illusions of control. These fantasy manifest not through actual power to ensure

action or inaction, but in the exercise of unrelated power to prevent a proxy for the risk

being sublimated from flourishing, irrespective of its actual ability to harm.

15 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society, University of Chicago Press (2001) [hereinafter Garland].

16 George Rigako, The New Parapolice: Risk Markets and Commodified Social Control, 100, University of Toronto Press (2002).

17 Marie Gottschalk, City on a Hill, City Behind Bars: Criminal Justice, Social Justice, and American Exceptionalism, 31 Nanzan Review of American Studies, 33, 43 (2009).

This disordered feeling may result from economic trends, a changing

relationship with government, social revolutions realigning the relationships between

privileged and previously disempowered (whether due to class, gender, race/ethnicity,

or along another axis), or even cultural shifts, but the expression of this disorder, the

reach for control, often settles upon unrelated policy areas whose relevant virtue is the

ease of promoting superficial “strength” or “stringency”.18 Thus, the “culture of control”

is associated with increased militarism, a more punitive approach to crime prevention,

and an obsession with the misuse of social rights and privileges, especially a concern

over “fraud”.

This does not entirely explain the phenomena related to perceptions of crime in

the first world, however. Most of these upheavals have taken place in each nation in

the last century, predominantly in this half century. Every nation has seen the

relationship between classes, genders, citizen and government, and generations

change dramatically. Most have seen a disadvantaged ethnic minority liberated. Yet

dramatic differences remain, in how these nations see crime, justice, victimhood, and

the purpose of prisons.

Of Religion and Punishment

One explanation relates to religious attitudes, especially as they relate to

forgiveness and literalism.19 While belief in a punitive god was not significantly

predictive of preferring retribution to rehabilitation, Biblical literalism was, and a strong

18 Shadd Manura, Amanda Matravers, & Anna King, Disowning our Shadow: A Psychoanalytic Approach to Understanding Punitive Public Attitudes, Deviant Behavior, 25:

19 Brandon Applegate, Francis Cullen, Bonnie Fisher, & Thomas Vander Ven, Forgiveness and Fundamentalism: Reconsidering the Relationship Between Correctional Attitudes and Relgion, 38 Criminology 719, 735 (2000).

belief in the forgiving nature of the divine (and of the church), as opposed to or at least

superceding the role of the divine and church as moral judge was strongly predictive of

the reverse.

It is somewhat risky to compare religious views (as opposed to religious

intensity) across cultures, as the nature of the discussion of one’s religion may not

entirely represent the underlying feelings or beliefs, but a comparison20 of nine

European countries and the US found that not only are literalist views much less

common in even socially conservative countries in Europe than in the US, but that

literalist views there are less likely (though still predictive) of views like the value of

retribution in corrections.

Understanding Mental Health as Health

As psychiatry has advanced, the realization that mental health is a particular

sub-field of physical health has become widespread. Though perhaps less accessible

to treatment than other ailments, a mental illness is as much a matter of biochemistry

as is an autoimmune condition, or an allergy. Nevertheless, a stigma has remained,21

not only on those who suffer from these maladies, but even towards their treatment.

While prisoners’ disabling “physical” ailments are widely seen as the

responsibility of the state, the same is not true of mental illness. Sufferers of the later

are seen as malingers,22 morally flawed individuals culpable for their condition (and

20 John Miller, Eugenie Scott, Shinji, Public Acceptance of Evolution, 313 Science 765 (2006).

21 Wolff, Pathare, Craig, & Leff, Community attitudes to mental illness, 168 BJ Psych 183 (1996).

22 Stephen Hinshaw & Dante Cicchetti, Stigma and mental disorder: Conceptions of illness, public attitudes, personal disclosure, and social policy, 12 Development and Psychopathology 555 (2000).

likely inventing it for a nefarious purpose). Naturally, this widespread disdain and lack

of compassion has its consequences for the provision of care to prisoners, and their

generally mental health.

The stigma has many causes, but the chief narrative among those who refuse to

see mental illness as a serious issue for criminal offenders is one of avoidance of

responsibility. Because in extreme cases there is a general consensus on the lack of

responsibility of the insane for their actions, the principle of mental illness diminishing

criminal culpability is well established23. Because the degree of diminishment is almost

impossible to judge objectively, the application of that principle to individual cases

short of the most extreme cases is deeply controversial. In a society preoccupied with

the “rights” of the victim to see the offender punished, to see the scale righted by

reducing the latter’s utility, the claim to that the victim is being harmed (again), this time

by courts and prosecutors overly solicitous to this principle gains public sympathy. In

governments were those office holders are elected, that public sympathy has a direct,

a priori effect on the execution of those offices and their responsibilities without even

the scrutiny and formal process of legislation or regulatory rule-making.

This issue is particularly critical for the elderly, who are generally more likely to

suffer from these conditions,24 and particularly more likely for those entering the

corrections system.

23 Bernard Diamond, Criminal Responsibility of the Mentally Ill, 14 Stan. L. Rev. 59 (1961-1962).

24 Seena Fazel, Tony Hope, Ian O-Donnell, & Robin Jacoby Hidden Psychiatric Morbidity in Elderly Prisoners, 179 BJ Psych 535 (2001) [hereinafter Morbidity].

Community Integration

Beyond mental health, the state of elderly inmates is obviously implicated by the

state of the elderly generally, and the level of support and care they receive. If the

elderly are a problem out of sight and out of mind, warehoused in institutions

disconnected from the rest of society, there will be little public, political, or institutional

attention paid to the problems resulting from their interactions with the criminal justice

system.

The separation of the elderly from society25 is a curious phenomenon; almost

regardless of culture, integrated family living arrangements placed several generations

in one community, if not one structure or domicile. Population shifts and the dislocation

of war after World War II altered this norm throughout the West, to varying degrees.

Longer life expectancies, two-income households (who could not provide eldercare as

they had no non-elder adult in the home during the day), and initially the desire of the

elderly to live in communities attuned to their needs, all helped drive the evolution of

retirement into self-exile and quasi-institutionalization.

There are benefits as well as harms to this development; inarguably, many of the

aged require expert attention, and even those who are not infirm may benefit from

communities that are not generally developed and aimed at a different population in a

different stage of life. That said, the invisibility of this demographic presents political

challenges to the acceptance of the need for special provisions and dedicated

programs.

25 Arber & Ginn, The invisibility of age: gender and class in later life, 39 Sociological Review 260 (1991).

General acceptance of Social Work

Whether related to the social invisibility of seniors or not, and certainly related to

the public’s skepticism regarding mental health, prisons have become a venue for the

provision of mental health care by the elderly. Without other recourse, and often

without culpable intent, many seniors end up incarcerated for offences that result

directly from weakened mental faculties and health.26

IV. Individual Country Profiles:

The nature of elder crime changes, of course, in those countries that provide

mental health and support services widely to their population. The challenges involved

with elderly inmates are thus rather variable in different nations as the result of a rather

different inmate population, whatever their demographic similarity.

France

France is a study in contrasts. The nation of Foucault and Jean Valjean, the

French more than most cultures have had an adversarial, suspicious view of prisons

and the coercive power of the state. Far reaching rights (especially for a Continental

legal system) are granted to the accused, and the penal code is revised regularly27

(most recently in 1994) to add protections as the older ones are eroded by

prosecutorial practice and judicial deference. The system asserts that its goal is

26 David Shichor & Solomon Kobrin, Criminal Behavior Among the Elderly, 18 The Gerontologist 213 (1978).

27 J-Y McKeen, Criminal Justice Systems in Europe and North America, Heuni 2001, available online at: http://www.heuni.fi/uploads/fq98onbf0fojy.pdf.

rehabilitation, not retribution, and so has all the hallmarks of such a system; parole, to

release those rehabilitated early, for example.

At the same time, France has some of the most overcrowded prisons in the first

world, perpetually operating at an average of 125% of capacity. The conditions are

terrible,28 unsanitary and rundown, and provoke regular rebukes29 from the European

Court of Human Rights, and NGOs all over the world. Over 60% of the inmates are

Muslim,30 despite the community making up around 12% of the overall national

population.

The overcrowding has many causes: increasingly punitive sentences leave

inmates incarcerated for longer—requiring more berths, there is insufficient funding for

new construction or even maintenance, and that potential suspects wait in detention,

mixed in with the general prison populace, for months on end before being tried.31 The

consequences are clear. An exposé by a prison doctor, Dr. Vasseur, reveals that French

prisons have a shockingly high suicide rate, many times that of US prisons, almost

certainly due to the conditions.

28 French Prisons: Still Miserable: Deteriorating Conditions Increase the Pressure to Improve French Prisons, The Economist, May 14, 2009, available at: http://www.economist.com/node/13653923.

29 Tracy McNicoll, Incarceration Nation: French Prisons are Becoming and Embarrassment, The Daily Beast, August 1, 2008, available at: http://www.thedailybeast.com/newsweek/2008/08/01/incarceration-nation.html.

30 Molly Moore, In France, Prisons Filled with Muslims, The Washington Post, April 29, 2008, available at: http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042802560.html?sid=ST2008042802857.

31 Suzanne Daley, Expose of Brutal Prison Jolts France’s Self-Image, The New York Times, January 28, 2000, available at: http://www.nytimes.com/2000/01/28/world/expose-of-brutal-prison-jolts-france-s-self-image.html?pagewanted=all&src=pm.

In this environment, it is hard to imagine that elderly prisoners are a high priority,

but while little has been written about elderly inmates’ access to proper medical and

psychiatric care, in 2002 France created a formal system for early compassionate

release on health grounds,32 a policy that will disproportionately benefit the elderly.

Amidst the squalor of the French penal system, some progress is being made.

Germany

Partly as a result of a general aversion to a coercive state in the aftermath of

World War II, Germany has gone through a long period of decarceration where there

was a “substantial shift from imprisonment to fines, probation, and various diversionary

programs.” The result of the policy was a predictable decline in the prison population,

though the extent of the decline, a 40% reduction between 1963 and 1994,33 was

rather dramatic. Reunification did not alter this trajectory, with former East German

prison populations dropping from roughly 24,000 to around 5,000 after the adoption of

West Germany’s criminal code.

While Germany has no national policy of compassionate release, but does have

a mandatory review of all sentences by psychiatrists, a form a parole that is unusually

aggressive. In the aftermath of a 2009 decision by the German Federal Constitutional

Court,34 corrections officials no longer have the right to make determinations over who

is and is not an ongoing threat to society, and are specifically admonished not to use

32 Eva Steiner, Early Release for Seriously Ill and Elderly Prisoners: Should French Practice be Followed? 50 Probation 267 (2003).

33 HJ Albrecht, Sentencing and Punishment in Germany, 6 Overcrowded Times 1, 6-10 (1995).

34 BVerfG, 2 BvR 2009/08 of 30.4.2009, paragraph no. (1 - 63), http://www.bverfg.de/entscheidungen/rk20090430_2bvr200908.html (translated via Google Translate).

their own inaction to prejudice these parole hearings through the absence of markers

of good behavior.

In this environment, it is perhaps no surprise that Germany is one of the few

nations to have specialized elderly-oriented prisons. One such, referred to as "Opa

Gefaengnis," or Grandpa Jail in Singen, Baden-Württemberg, operates strikingly

similarly to a managed care facility for older non-offenders.

“The prisoners can wander freely around the three-story building between 7 a.m. and 10 p.m. They can bowl or play billiards, exercise and have physiotherapy for their old aching joints. They are allowed six hours of family visits a month, and they are taken on country walks escorted by prison staff. The physician comes once a week, unless called specifically, and a psychologist sees the inmates, mostly the convicted sex offenders, six times a week.”35

Norway

Norway is instructive even as they have no specific elder prison policy at this

time. The Norwegian legal system caps sentences at 21 years; there is a presumption

of release into society, eventually, of every inmate.36 Following naturally from that

premise is a focus on rehabilitation that trumps all other concerns. Whether one

considers Halden, a maximum security facility, or Bastoy, a medium security facility

that still has violent felons among its population, the prisons have little to no emphasis

on punishment. There is, instead, a coherent effort to develop routine, responsibility, life

skills, and to heal whatever ill brought the offender to the facility.

35 Christel Kurcharz, Germany: Prison Specializes in Older Prisoners, Seniors World Chronicle, March 28, 2008, available at: http://www.seniorsworldchronicle.com/2008/03/germany-prison-specializes-in-older.html.

36 Amelia Gentleman, Inside Halden, the Most Humane Prison in the World, The Guardian, Friday, May 18, 2012, available at: http://www.guardian.co.uk/society/2012/may/18/halden-most-humane-prison-in-world.

Significantly, the approach works. The reoffense rate nationally is 20%

(compared with 50% for the UK and 67.5% for the US),37 and Bastoy specifically

boasts a 16% recidivism rate.38 While the facilities are high in price, overall spending

on corrections is low even by European standards, as a result of the relative lack of

reoffender crime and prisoner population.

The effect of this underlying policy on the elder prisoner debate is two-fold. The

category of long-term prisoners growing old while incarcerated is largely absent.

Further, with a general focus on treatment and humane conditions, most of the

difficulties the elderly have in other prison environments, such as access to health care,

or security from other prisoners simply do not exist. No special policy is needed, and

so none has been developed.

Separately, the offense rate of the elderly in Norway is low, partly due to a robust

social welfare system that provides economic support and mental health treatment,

leading to a diminished population of the other category of elderly incarcerants.

This is not to say all the challenges are solved. As a result of the reduced elderly

population, little attention has been paid thus far to any special challenges the aged

may face, spending their twilight years without hope of release for relatively minor

crimes. Norway generally supports the principle that for a prisoner to lack the hope of

release is cruel and inhumane, but there is no formal or systemic policy to factor this

37 US Bureau of Justice Statistics, Reentry Trends in the U.S., available at: http://bjs.ojp.usdoj.gov/content/reentry/recidivism.cfm.

38 (Piers Hernu, Norway’s Controversial ‘Cushy Prison’ Experiment - Could it Catch on in the UK?, The Daily Mail, July 25, 2011, available at: http://www.dailymail.co.uk/home/moslive/article-1384308/Norways-controversial-cushy-prison-experiment--catch-UK.html

principle into the sentences of the elderly in Norway, beyond a generally low

sentencing penalty that is applied across the board.

The Netherlands

The Netherlands has been a bit of an anomaly in Continental Europe over the

last thirty years. After reducing prison populations consistently in the three decades

following World War II, Dutch prison populations have swelled since the late 70s. Unlike

the US, and to some extent the UK, it has at the same time maintained a

comprehensive welfare system, creating both incentive and opportunity to examine

prison pathologies without the cross-cutting variables of unaddressed poverty.39

The Dutch found that over 30% of incoming prisoners over the age of 60 were

afflicted by some sort of culpability-modifying mental condition, a ratio that only

increased over time, once the inmate was imprisoned.40 Despite this, the Dutch have

not developed elderly-oriented prisons, preferring instead to release elderly

incarcerants into society, constrained by parole examinations, but able to live out the

remainder of their lives.

The United Kingdom

Unsurprisingly, considering the cultural and social ties between the UK and the

US, the United Kingdom displays many of the same outlying behaviors, policies, and

results as the US, albeit to a more limited extent. Recidivism is higher in the UK than

the rest of Europe, and approaches US levels. Public support for retribution as the

39 David Downes, Visions of Penal Control in the Netherlands, 36 Crime & Justice 93 (2007).

40 Co Bleeker, Karel T.I. Oei, Mental Disorder in Elderly Offenders in the Netherlands, Conference Paper, Abstracts of the XXXIst International Congress on Law and Mental Health, 24 (2009).

central principle behind corrections exceeds that for rehabilitation, much like the US. In

fact, the UK is perhaps the only country in Europe which recently increased41 maximum

sentence lengths to allow for (and encourage) use of life without parole, unrelated to a

long-suspended capital punshiment regime.

As a predictable consequence of those views and these actions, the elderly

population incarcerated in the UK has exploded; the overall elderly inmate population

trebled in a decade, and their proportion of prisoners generally doubled in the same

period.42 The health of these prisoners is deeply compromised; while the elderly

generally suffer from a variety of maladies at a higher rate than the population, the

imprisoned elderly were almost three times as likely to be in bad health.43

While the civil service (which operates the courts and the Crown Prosecution

Service) is responsive enough to political oversight to reflect the public’s desire for

stringency, it still attempts to address the unique problems of the elderly within the

corrections system in a variety of ways.

First, and vitally necessary, the issue itself is under active study by the civil

service, and ongoing efforts exist to address the problems their enquiry identifies. This

focus is surprisingly rare, not only in nations without a rehabilitation or inmate dignity

priority (such as the US), but even in countries where rehabilitation is central, and

general respect for inmate dignity is high.

41 Supra Appleton.42 Supra Morbidity.43 Seena Fazel, Tony Hope, Ian O-Donnell, & Robin Jacoby, Health of Elderly Male

Prisoners: Worse Than the General Population, Worse Than Younger Prisoners, 30 British Geriatrics Society 403, 404 (2001).

The UK Department of Health actively liaises44 with the Prisons services on the

issue of providing elderly incarcerants with a high level of health care that is cognizant,

informed, and engaged on geriatric health issues.

Canada naturally shares a good deal of cultural attitudes with the other nations

with which is shares significant common ancestry. These attitudes include

sociopolitical views on government, morality, and the relationship of the individual with

the community. Given all of this, Canada might be expected to behave much like the

US, the UK, and Australia to many of the ideas involved in elderly inmate prison reform.

However, whether due to the salient Quebecois contribution to the national

culture, adding a Continental perspective to these questions that more closely reflects

the French perspective, or the more urban settlement patterns as compared to the

other Anglophone ex-colonies, Canada breaks the mold45 far more than any of these

other nations in its attitudes towards crime, punishment, clemency, and elder inmate

issues.

Specifically, there is a politically supportable consensus in the national

government to embrace a broad theory of corrections, avoiding a singular (or at least

primary) focus on retribution and including rehabilitation. Some of this consensus is the

result of counter-populist governmental structures related to penal law, viz. that the

more populist46 provincial governments had no legislative power over sentencing

recommendations and limitations. It is hard to overstate, however, the effect of the

44 A Resource Pack for Working With Older Prisoners, UK Department of Health, July 31, 2009, available at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_103518.

45 Surpa Gottschalk 2009 at 461.46 Surpa Gottschalk 2009 at 462.

United States’ overwhelmingly retributive perspective, and the Canadian desire to

avoid the US political consensus in terms of their own policies.

This perspective, and the durability of this consensus, has led Canada to be a

leader on the analysis and modeling47 of offender recidivism, of elder inmate medical

issues, and of the relationship between the nature of the crime and the outcomes of

incarceration at various levels of sentencing. Canada tracks elderly prisoners in three

different age bands, and has a unit within its corrections system dedicated to

generating data-driven policy recommendations and suggestions for reform.

Among many conclusions that the Correctional Service Canada have made that,

while easily supported by the data, are not officially and explicitly recognized by most

national penal authorities, are that to afford effective care to the elderly in a prison

context is essentially impossible. The wide array of health care required at that age

necessitates exfiltration of the inmate to community medical facilities,48 at great cost if

security is to be maintained. Given that 79% of the over-65 prison cohort was in poor

health, the frequent use of external services is cost-prohibitive. Framed in this way,

compassionate release which allows the inmates access to community health facilities

without the security umbrella that raises the cost so dramatically is not only a humane

policy, but a fiscally prudent one.

Having determined that the recidivism risk among the elderly is minimal, the

Service has endorsed early release. For offenders still in the system, in light of

47 Julius Uzoaba, Managing Older Offenders: Where Do We Stand? Correctional Service of Canada (1998) available at: http://www.csc-scc.gc.ca/text/rsrch/reports/r70/r70_e.pdf.

48 Mario Gal, The Physical and Mental Health of Older Offenders, Correctional Services of Canada FORUM on Corrections Research (2009), available at: http://www.csc-scc.gc.ca/text/pblct/forum/e142/e142d-eng.shtml.

concerns of abuse from the younger offender population, the Service49 has

recommended a transition to age-segregated facilities staffed by personnel trained

specifically in the problems and care of geriatric populations.

Australia

Australia is rather unique among the first world nations examined, in that they do

spend time and effort researching elder inmate issues, and formulating specific policy

options related to that demographic, but do so not as a result of ethical concerns

about the effect of general population policies on the elderly prison population, but

rather as a result of concerns about the current50 and future cost of servicing that

population adequately.

In attitude, Australia maps closely with the US and UK; the population is

skeptical51 of clemency, early/compassionate release, and suspended sentences.

There is support for generally longer sentences, which drive up the population of

elderly inmates who are actually in prison for crimes committed as young adults.

Victims’ rights groups have traction with the general population, with the natural effect

of preventing shorter sentences or parole, leaving a substantial number of people

incarcerated for crimes they committed decades earlier—and thus flooding the system

with relatively high numbers of elderly inmates.

49 Howard Sapers, Annual Report of the Office of the Correctional Investigator 2010-2011, Office of the Correctional Invesitgator (Canada) (2011).

50 Shelley Turner & Chris Trotter, Growing Old in Prison? A Review of National and International Research on Aging Offenders, Department of Justice, Melbourne, Victoria, Australia at 14 (2010) [hereinafter Turner & Trotter].

51 Susan Baidawi, et. al., Older Prisoners—A Challenge for Australian Correction, Trends & Issues in Crime and Criminal Justice No. 426, at 6 (August 2011) [hereinafter Baidawi].

This phenomenon may be influenced by the electoral system, which in terms of

legislative elections is very similar to the US, but more significantly maps to the US

(and differs from almost all the other nations reviewed here) in that primary penal

oversight is provincial (sub-national) rather than federal. That sub-national entities are

more vulnerable to advocating for populist policies has been well established in

research looking at many nations. 52

Uniquely among nations actually moving to address elderly inmate issues,

Australia has taken reduced sentences off the table53, focusing instead on prison

environment adaptation strategies aimed at making the time spent imprisoned more

tolerable and more effective at reducing recidivism. Australia has begun to implement

“nursing home prisons,”54 prison hospice care, train special administrative staff in

prisons with mixed populations, and hire geriatric care medical specialists in prisons

with significant populations of the elderly.

Japan

Japan presents an interesting case due to a rapid shift55 from a rehabilitation-

oriented, relatively restrained criminal justice system, to one that is more retributive and

severe. That this shift maps almost perfectly to the onset of the “Lost Decade” (失われ

た10年 Ushinawareta Jūnen) and a sudden rise in the indicia of late-modern angst.56

52 Surpa Gottschalk 2009 at 462.53 Surpa Turner & Trotter at 21.54 Supra Baidawi at 5.55 David Johnson, Crime and Punishment in Contemporary Japan, In Crime,

Punishment, and Politics in Comparative Perspective—Crime and Justice: A Review of Research, vol. 36, ed. Michael Tonry, 371–423. Chicago: University of Chicago Press.

56 Supra Garland.

In this shift, Japan has been demonstrating57 many of the unique qualities of the

American criminal justice discussion. Victims’ Rights groups are proliferating, the use

of capital punishment is increasing sharply, and as faith in the police and judiciary has

declined after a series of publicized scandals (and despite having historic lows in the

crime rate), criminal justice policy has become the domain of law-and-order politics,

rather than sober policy analysis.

As the economic picture has darkened, rural areas have begun to compete58 for

prisons to be built within their borders (another American phenomenon seldom seen

elsewhere). The political representatives of those regions tap public concern and

advocate for longer prison sentences, which increase the prison population and thus

the need for new prisons. The Justice Ministry has, for the first time in decades,

requested more prisons and wardens to handle a burgeoning prison population in a

country that is otherwise shrinking.

The impact of these developments on the elderly is striking. With budgets under

pressure in a shrinking economy, and increased spending on prisons requiring

increasingly scarce yen, social welfare spending has been slashed. Between

increasingly punitive sentencing leading younger offenders to stay in prison until

elderly, and the elderly turning to crime59 to secure resources and the support services

of prison, the elderly inmate population has soared. In a five year period (2000-2004),

57 Supra Garland.58 Id.59 Justin McCurry , Pills and porridge: prisons in crisis as struggling pensioners turn to

crime Ageing population and family breakdown blamed for huge rise in old lags, The Guardian, Wednesday 18 June 2008, http://www.guardian.co.uk/world/2008/jun/19/japan.

there was a 125% increase in the number of criminal charges levied against individuals

over 70 years old.

There have been attempts to respond to this problem, though not by addressing

the underlying issues. Instead, the first of several elderly-only prison wards came online

recently, at Onomichi Prison.60

While there have been significant changes to the criminal justice and corrections

systems of first world nations, the middle income transitional countries of the former

Soviet Union, Latin America, and South East Asia have experienced far greater

intentional policy instability and radical change in the resultant facts on the ground, in

an environment which is perhaps supports carceral sentences more than any other

around the world.

Russia

Russia is a particularly effective example. In the ten years after the fall of the

Soviet Union, sentenced prison terms increased 75%.61 It currently imprisons almost

as many people per capita as the United States. Its prisons are notorious for being

underfunded, overcrowded, and unsafe. Ironically, in this dystopic environment elderly

prisoners are routinely given compassionate releases and/or suspended sentences, as

a result of the self-same overcrowding.62

60 Norimitsu Onishi, Japan Prisons Begin Adapting to Elderly, New York Times, January 5, 2008, available at: http://www.nytimes.com/2008/01/05/world/asia/05japan-briefs.html.

61 William Pridemore, Change and Stability in the Characteristics of Homicide Victims, Offenders and Incidents During Rapid Social Change, 47 Br J Criminol 331 (2007).

! 62 Id.

China

The People’s Republic has a mixed record when it comes to human rights. […]

The concept of principles of human dignity that trump the needs of the state is a

controversial, and arguably seldom applied idea.

At the same time, China has moved past the United States in one area. In

February 2010, the Chinese Supreme Court ruled that leniency is an important factor in

the determination of sentencing to the elderly, and that there was a fundamental state

interest in promoting that leniency. The following year the basic Criminal Law was

amended to provide for automatic reduced sentences (Art 17), suspended sentencing

and medical compassionate release (Art 72), and were exempted from capital

punishment in most cases. 63

There have also been concrete steps taken to ensure the elderly, when

incarcerated, are afforded dedicated cell blocks for their own security, and to create

prison conditions that reflect the same reduced risk to society that was recognized in

the formal sentencing modifications.

None of these steps has been implemented on a nation-wide scale by the

United States. Indeed, between 1999 and 2009 the number of elderly on death row in

the US quadrupled.64

-End-

63 Diminishing Returns: Aging in Prison, Dui Hua, May 24, 2012, available at: http://duihua.org/wp/?p=5730.

! 64 Id.