America’s ‘Nursing Homes Behind Bars’

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Photo by Jason Corneveaux via Flickr

The threat of the novel coronavirus has highlighted the unique vulnerability of the incarcerated elderly, many of whom have been languishing in prison under sentences of life without the possibility of parole (LWOP).

According to a forthcoming article in the Federal Sentencing Reporter Journal, the large aging population of inmates has turned U.S. prisons into “nursing homes behind bars”—wasting taxpayer dollars and subjecting them to inhumane conditions.
“Keeping someone with late-stage dementia or other neurocognitive impairments imprisoned until they die is torturous,” writes the article’s author, Rachel E. López.

López, an associate professor at the Thomas R. Kline School of Law at Drexel University, believes that keeping an elderly inmate imprisoned “is equivalent to death for someone whose neurodegenerative disease is so severe that they cannot rationally understand their punishment.”

The category of elderly inmates starts at age 50, since specialists believe that their mental and physical condition even before confinement makes them equivalent to seniors 65 and over in the outside world. That population has doubled in the last ten years as a result of inmates being committed at a young age and sentenced to LWOP.

López cites an Urban Institute study, which quoted U.S. Census Bureau figures projecting that by 2030, older prisoners will account for almost one-third of all incarcerated people in the United States—a number estimated to reach 400,000.

That population has doubled in the last ten years as a result of inmates being committed at a young age and sentenced to LWOP.

Researchers estimate that between 70,341 and 211,020 of those older prisoners will eventually develop dementia.

Last year, the federal Bureau of Prisons opened its first dementia unit and, López added, there will be more such facilities around the country as the number of elderly in the U.S. incarcerated population increases.

Federal prisons already allocate $881 million in health care costs for elderly inmates, according to López.

Moreover, aside from the cost to taxpayers, the practice of keeping elderly people suffering from cognitive decline behind bars violates Eighth Amendment prohibitions against cruel and unusual punishment, she argued.

“Dating back to our country’s founding,” López wrote, “those with limited mental capacity, including those with dementia, were entitled to special protections in the criminal context.”

López cited two Supreme Court Cases—Madison v. Alabama and Miller v. Alabamawhich she said supported this view.

In Madison v. Alabama (2019), the Court held “that it is unconstitutional to execute someone who cannot rationally understand their death sentence.” In this case, the defendant suffered two severe strokes, resulting in vascular dementia that left him unable to remember the crimes he committed.

Arguing for the defendant, attorney Bryan Stevenson said Madison’s dementia could be deemed a form of incapacitation “sufficient to meet the Ford and Panetti standards prohibiting the execution of some incapacitated inmates.”

In Miller v. Alabama (2012), it was determined that juveniles should not be sentenced to LWOP because of their mental status and brain development.

López argued that the ruling should be “extended to those who cannot rationally understand why they are being infinitely detained for the remainder of their lives pursuant to a LWOP sentence.”

“Life behind bars for this population offends basic human dignity and is exactly the type of excessive and cruel punishment that the Eighth Amendment was designed to prohibit, as it assures a ‘lingering death,’” she wrote.

“For them, life without parole is just another form of a death sentence.”

To combat this, López advocates for the end of LWOP sentences, compassionate release for many of the nonviolent and sick elderly inmates with LWOP sentences, and a reevaluation of what it should look like to grow old behind bars.

The full study can be accessed here.

Additional Reading:

Why Do We Keep Our Aging Prisoners Behind Bars?”  By Marc Schindler and Jeremy Kittredge, The Crime Report, June 26, 2018

‘Unprecedented Times’ Call for Compassionate Release, Advocates Say

Andrea Cipriano is a staff writer for The Crime Report

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