A Principled Approach to Separating the Fusion between Nursing Homes and Prisons

Abstract

Elderly people are a far lower risk to community safety than other individuals. Despite this, prisons are being increasingly filled by older offenders. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades – far greater than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently to other offenders. The key reasons for this are that elderly offenders reoffend at about half the rate of the total prisoner release cohort, and they cost us more than double the amount to incarcerate due to their more pressing health needs. The maturity and infirmity of most aged offenders means that they are a far lower risk to community safety than other offenders. The sentencing system should be reformed to properly accommodate the relevantly different situation of elderly offenders. In this Article, we argue that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and expanding the use of progressive forms of punishment, especially electronic monitoring. These reforms will reduce the fiscal burden of the sentencing system, enhance the normative integrity of the process and make the community no less safe.