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Three Strikes For Aging Inmates

By Josh Brooks

Published November 5, 2012

Imagine your run-of-the-mill nursing home—a brick building with individual rooms for each of the elderly residents many of whom have chronic conditions, periodic infections, and the need for continued care. Now, pack two or more of those residents in each room, put bars on the doorway, wrap a fence around the perimeter and, in some ways, you’ve got a picture of what prisons could look like in several decades.

State and federal prisons in 2010 housed over 26,000 inmates 65 and older and around 124,400 aged 55 and up, according to a Human Rights Watch report. One in 12 inmates in state and federal prison is 55 and up. Today’s prison population is much older than it has been in the past, which could create new economic and health concerns for an already ailing prison infrastructure.

Much of the growth in the prison-bound elderly mirrors demographic trends outside the prison system, with the aging of the baby-boomer generation. But in prisons, this has been exacerbated, in part, by strict sentencing laws, like the Three Strikes Laws and long-term sentencing for drug offenders.

The Three Strikes Law was implemented in 28 different states across the United States since 1993, with varied forms of application in each state. Between 1995 and 2010, America’s prison population grew by 42 percent, while the proportion of inmates over 55 years old grew by seven times that rate.

These laws were developed to deal with recidivism by requiring minimum sentences of 25 years to life for three-time offenders with prior serious or violent felony convictions. But, in many states, particularly California, where the sentencing has been most extreme and county prosecutors are given discretion to apply the law as they see fit, the third strike can be a nonviolent crime and still land a person with a 25-to-life sentence with no eligibility for parole for 25 years.

As applied, these laws made sentences longer and limited the possibility of parole for nonviolent crimes. In California alone, where the Three Strikes law was applied particularly strongly, 56 percent of those put away on Three Strikes were put away for nonserious or nonviolent crimes. A Pew Center on the States report showed that drug offenders in 2009 spent 36 percent longer behind bars, on average, than in 1990. Furthermore, one out of ten state prisoners is in for life, while the same proportion of prisoners aged 50 and above are in for 30-to-life. That means that over 100,000 prisoners will die in prison, a persistent and costly burden on the health system.

For each inmate older than 50, inmate healthcare costs are upwards of $68,270—sometimes more. According to the ACLU, providing health care for these aging prisoners will cost American taxpayers roughly $16 billion annually.

So, how do we address the problem?

First, we could consider releasing elderly prisoners provided they are nonviolent and unlikely to commit new crimes. At first, this approach may sound unsafe, but after age 50, people, in general, are far less likely to commit serious crimes, according to a U.S. Department of Justice report. Arrest rates drop from about 12 percent for 16-19 year olds to 2 percent for people at age 50. At 65, arrest rates are nearly zero. And older inmates who are released rarely return. For example, a New York State study followed 469 inmates sentenced for violent crimes for 13 years after their release as senior citizens. Only eight of those former inmates returned to prison and only one went back for committing a violent offense.

That said, releasing large groups of prisoners is never politically expedient, so it’ll be a sunny day in solitary confinement before that happens. But even without releasing elderly prisoners, the strict sentencing and Three Strikes policies that created this problem will continue to compound it.

Several studies have already questioned the effectiveness of Three Strikes policies. A study by researchers at UC Riverside suggests that the Three Strikes law has not deterred crime in California, where the law was enforced most strongly. In fact, the study suggests that the decrease in violent crime began two years before the law was passed. Other studies have shown no differences in crime rates between counties that used the law excessively and those that used it less so.

Three Strikes is borne of an old outlook, one that viewed punitive enforcement and harsh sentencing as the way toward a less crime-ridden society. Rather, approaches like the Drug Market Initiative, which offers social welfare and job support instead of strict sentencing, could be an alternative, less costly and more humane way forward.

We don’t doubt that some prisoners require long sentences, given their crimes, but the Three Strikes law and strict sentencing for nonviolent crimes will continue to create massive health burdens in aging prison populations, on top of the toll these policies already reap on society. Failure to address these problems not only adds to the bill taxpayers will pay for ineffective prison healthcare, but construct—brick by costly brick—prisons that look more like assisted-living homes than correctional facilities.

Edited by Abdul El-Sayed. Additional research by Arti Virkud.

Article originally posted on the2x2project.org, an online publication sponsored by the Department of Epidemiology at Columbia University. 2×2 aims to inform the health conversation through timely and effective communication of emerging public health.