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

48 Pages Posted: 4 Aug 2016 Last revised: 1 Sep 2016

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Marissa Florio

Harvard University, Law School, Students

Brienna Bagaric

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2016

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.

Suggested Citation

Bagaric, Mirko and Florio, Marissa and Bagaric, Brienna, A Principled Approach to Separating the Fusion between Nursing Homes and Prisons (2016). Pepperdine Law Review, Forthcoming; Deakin Law School Research Paper No. 16-27. Available at SSRN: https://ssrn.com/abstract=2818196

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Marissa Florio

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Brienna Bagaric

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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