If you've never heard the term “consecutive sentencing,” it works like this: on July 13, 2005, 29-year-old Atiba Parker sold .23 grams of crack to an informant. The next day, he sold the informant another .1 grams. Several months later, the police discovered .1 grams of cocaine residue in a car ashtray. In 2006, Mr. Parker was sentenced to 20 years for the .23 gram sale, 14 years for the .1 gram sale, and eight years for the .1 gram possession.
His three sentences run consecutively, which means Mr. Parker must serve a total of 42 years in prison. Unless he receives parole, he will be 71 when he's released in 2048.
Eventually, Mr. Parker will become part of America's elderly prisoner boom; by the time he reaches 60 in 2037, the U.S. is projected to have over 400,000 elderly prisoners. To put that in perspective, that's more than India's total prison population.
What's even more alarming is the cost: on average, taxpayers pay about $68,000 per year to incarcerate each elderly person – twice as much as the average-aged prisoner. At this moment, the mass incarceration of elderly persons is a $16 billion per year problem that's going to continue to grow exponentially.
The scale of the problem suggests that back-end reforms—such as programs to release terminally ill prisoners—won't be nearly enough. To reverse our elderly prisoner boom, we need to address its primary cause: sentencing policies.
It's true that the American population generally has gotten older, but that can't explain the dramatic aging of our prisoner population. Since 1980, the number of Americans older than 55 grew by 50 percent; meanwhile, the number of prisoners older than 55 multiplied by 14.
It's also not the case that we have more elderly prisoners today because we have more elderly criminals. Arrest rates for people over 50 aren't much different today than they were in 1971. There has been no “elderly crime wave” that could account for the dramatic rise in elderly prisoners.
The best explanation is that we've been making prison sentences longer.
A recent Pew report found that prisoners released in 2009 served sentences 36 percent longer than prisoners released in 1990. Moreover, the number and percentage of prisoners serving very long sentences—more than 20 years—has been rising. According to a new report by the ACLU, far more of today's elderly prisoners are serving sentences longer than 20 years than did before the tough-on-crime era.
In 1979, only 2 percent of the nation's elderly prisoners had spent more than 20 years behind bars. In 2009, a 24-state survey found that 40 percent of elderly prisoners had been behind bars for more than 20 years. Partly, that's because the U.S. now has more than four times the number of prisoners serving life sentences as we did in 1981. Our sentencing choices have turned a lot of young men into old prisoners.
If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.
The best hope for restoring our elderly prisoner population to sensible, manageable levels is to scale back our sentencing laws.
Pew's report suggests that the best thing to do would be scaling back—or abolishing—”truth-in-sentencing” laws, which require prisoners to serve 85 percent of their sentences. Doing so would allow parole boards to release prisoners who no longer pose a threat to public safety. That would mean most elderly prisoners, only five percent of whom commit new crimes once released.
Another useful reform would be repealing mandatory-minimum sentencing schemes, while maintaining reasonable and humane advisory guidelines. Giving a 31-year-old woman a mandatory 20-year sentence for firing a warning shot creates an elderly prisoner. Giving a 25-year mandatory minimum sentence to a 45-year-old man who illegally acquired Percocets for his chronic pain creates an elderly prisoner. Sentences such as these wouldn't exist in a world without mandatory minimums, nor would the elderly prisoners they create.
We should also scale back three-strikes laws, and reduce the severity of prison sentences in general. Giving 30-year-old three-time petty burglar Gary Ewing a 25-to-life sentence because he stole three golf clubs creates an elderly prisoner. Giving Cornell Hood II life in prison for his fourth marijuana conviction creates an elderly prisoner. So does giving Atiba Parker consecutive sentences totaling 42 years for selling a truly insignificant amount of crack cocaine.
These sentences aren't only unjust; they're also very expensive, with little societal justification.
By making sentences longer for a generation — being “tough on crime” — we've caused a lot of people to grow old behind bars. We won't stem the tide of elderly prisoners until we reduce the length of criminal sentences, and we ought to start soon. We can't afford not to.
EDITORS NOTE: For another view on this issue, please see Jamie Fellner's TCR Viewpoint “Frail and Elderly Prisoners: Do They Still Belong Behind Bars?”
Vanita Gupta is deputy legal director of the American Civil Liberties Union. She is also director of the ACLU's Center for Justice, which addresses systemic problems in the U.S. criminal justice system. Alex Stamm is a paralegal for the Center for Justice.