The Unusual Cruelty of Nursing Homes Behind Bars

The Unusual Cruelty of Nursing Homes Behind Bars, 32 Fed. Sent’g Rep. 264 (2020).

8 Pages Posted: 24 Apr 2020 Last revised: 18 Jun 2020

See all articles by Rachel Lopez

Rachel Lopez

Drexel University Thomas R. Kline School of Law; Yale University - Law School

Date Written: April 22, 2020


The elderly prison population continues to rise along with higher rates of dementia behind bars. To maintain the detention of this elderly population, federal and state prisons are creating long-term care units, which in turn carry a heavy financial burden. Prisons are thus gearing up to become nursing homes, but without the proper trained staff and adequate financial support. The costs both to taxpayers and to human dignity are only now becoming clear. This article squarely addresses the second dimension of this carceral practice, that is the cost to human dignity. Namely, it sets out why indefinitely incarcerating someone with dementia or other neurocognitive disorders violates the Eighth Amendment of the United States Constitution’s prohibition on cruel and unusual punishment.

This conclusion derives from the confluence of two lines of U.S. Supreme Court precedent. First, in Madison v. Alabama, the Court recently held that executing someone (in Madison’s case someone with dementia) who cannot rationally understand their sentence amounts to cruel and unusual punishment. Second, in line with Miller v. Alabama, which puts life without parole (LWOP) sentences in the same class as death sentences due to their irrevocability, this holding should be extended to LWOP sentences. Put another way, this article explains why being condemned to life is equivalent to death for someone whose neurodegenerative disease is so severe that they cannot rationally understand their punishment.

Keywords: Cruel and Unusual Punishment, Eighth Amendment, life without the possibility of parole, LWOP, geriatric, Elder Law, Madison v. Alabama, Miller v. Alabama, life sentence, dementia, neurodegenerative disease, evolving standards of decency, barbaric, torture

Suggested Citation

Lopez, Rachel, The Unusual Cruelty of Nursing Homes Behind Bars (April 22, 2020). The Unusual Cruelty of Nursing Homes Behind Bars, 32 Fed. Sent’g Rep. 264 (2020). . Available at SSRN: or

Rachel Lopez (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics