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The Elderly in Prison: Should age be a factor?

The Elderly in Prison – Updated

Australia is now considering their first dedicated prison for the elderly. The prison-nursing home would be built in western Victoria. The state and federal prison systems in the United States should adopt and implement this progressive approach regarding the increasing aged population incarcerated in our prisons. The American Civil Liberties Union issued a report in June about elderly inmates. Incredibly, the elderly inmate population has increased 1300 percent since the early 1980s. The federal government and the states spend more than $16 billion a year to jail aging inmates. The report also included the fact that almost all inmates over 50 are not a threat to society. It costs $68,000 to imprison an elderly inmate which is twice the cost to incarcerate the average inmate. The difference in costs results from health care expenses which rises every year.

What is prison like for old senior inmatesFrom 1995 to 2010, the number of inmates 55 and older in federal and state prisons increased by 282 percent as reported by Human Rights Watch. The increase of seniors in prison have strained an already overcrowded prison system. On December 9, 2012, PrisonPath posted an article on the “Elderly in Prison.” The article noted, ” It costs $68,000 to imprison an elderly inmate, which is twice the cost to incarcerate the average inmate. The difference in costs results from health care expenses which rises every year.”
More and more judges are now considering the age and health of a senior in determining a fair sentence. A sentence of ten years of prison time for a 70-year-old defendant (non-violent offender) in poor health constitutes a death sentence. On the other hand, should elderly defendants receive favoritism over young defendants? Prosecutors argue that age should not be a factor in determining a sentence. If you commit the crime, you do the time. The argument is made by the government that health care rendered in prisons is satisfactory, but this argument is not correct as shown in the 2004 and 2002 surveys of inmates.

“The analysis by Wilper and colleagues examined data from the 2004 Survey of Inmates in State and Federal Correctional Facilities and the 2002 Survey of Inmates in Local Jails, which showed that large proportions of inmates with serious chronic physical illness didn’t receive adequate care during their incarceration. For example, 13.9% of federal inmates, 20.1% of state inmates, and 68.4% of local-jail inmates with a persistent medical problem hadn’t received a medical examination since beginning their prison term. Continuation of prescription medication was also problematic. Before entering prison, approximately one in seven inmates was taking a prescription medication for an active medical problem. However, upon incarceration, 20.9% of federal, 24.3% of state, and 36.5% of local-jail inmates stopped their medication.”

The following article reflects the controversy over sentencing non-violent seniors to long prison terms.

Should defendants’ age or health issues be sentencing factors?

Richard Bistline

By  Kathy Lynn Gray of The Columbus Dispatch Sunday March 3, 2013

Is prison more of a punishment if a defendant is 50 rather than 20?

Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said.

The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010. The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.

The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago. He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.

“Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.

Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease. Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging.

“Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.” According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010. That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

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32 Responses to The Elderly in Prison – Updated

  1. PrisonPath March 5, 2013 at 1:46 pm #

    By Christopher–Yes, it works for politicians and others who have the money or power to avoid jail time so it should also work for us poor people whom persecutors enjoy imprisoning.

  2. PrisonPath March 5, 2013 at 1:47 pm #

    By Elaine–We had a recent case in Ireland where the issues of age and the chronic medical needs of a prisoner led to a suspended sentence following this individual’s conviction for a serious crime. Following a lot of debate in the media and among the public, there was a reversal of the decision to suspend the initial portion of the sentence. While this was an extreme case, I think it illustrates some of the issues raised in this article.

  3. PrisonPath March 5, 2013 at 1:51 pm #

    By Zachary–In addition to considering an elderly defendant’s health, courts should consider the likelihood that the defendant will commit another crime. Studies have shown and several courts have recognized that recidivism rates decline as people age.

  4. PrisonPath March 5, 2013 at 1:59 pm #

    Janet • I think it most definitely should be a factor. Economically, it makes sense. In an already financially suffering economy, should we be spending that extra money to pay for the medical care of seniors in prison?. Additionally, as the article pointed out, incarcerating an older person is often comparable to giving them a life sentence.

  5. PrisonPath March 5, 2013 at 2:12 pm #

    Brian• prisons already cannot provide the health care that certain people need. Overcrowding only worsen the problem.

  6. PrisonPath March 5, 2013 at 2:30 pm #

    By Terri–At a meeting with the head of a parole team, I asked why age at time of crime is listed as one of the 15 factors to consider in parole. Did youth mean they are rehabilitable? Did elderly mean it costs more to keep them in prison? The official refused to answer, saying only that they looked at all 15 factors. It seemed that having the list was a wall he could hide behind, and age wasn’t really considered either way.

  7. PrisonPath March 5, 2013 at 9:35 pm #

    By Bernadette–This is a major issue..and luckily we are trying to start a charity with this in mind,(set up by an ex-offender)
    I was shocked when I found out how many inmates over 60-65 never mind 55!

  8. PrisonPath March 5, 2013 at 11:03 pm #

    Jake • Yes, but…the example used of someone sentenced for possession of child pornography, is not a good one, I would say age and health should be considered for non-violent offenders and *not* considered for violent offenders and sex offender (“violent” or not). Age and bad health does not make sex offenders any less dangerous, and a “first offender” sentencing for sex offenders is almost certainly *not* truly a first offense. It is the first time he was caught.

  9. PrisonPath March 5, 2013 at 11:43 pm #

    In fact, the U.S. Sentencing Guidelines used to frown upon age and health as sentencing factors. Only after Booker/Rita/Gall/Spears did the Sentencing Commission finally acknowledge that U.S. courts must consider these and a ton of other “discouraged” sentencing factors.

    The US Sentencing Commission has a great bunch of research, including about recidivism risk factors (diminishing after 40 – including for sex offenders, who have the lowest re-offense rates of any convict).
    By Jay

  10. PrisonPath March 6, 2013 at 12:27 am #

    By Clifton–This is the way life is. Some situations happens at different age and we follow God law and laws of our society.

  11. PrisonPath March 6, 2013 at 2:35 pm #

    Albert • The whole person should be taken into account, the age of the offender, both the physical and mental health, education or the lack of it, the family life as well the nature of the offense, offender classification.
    Age is critical because of the level of immaturity or maturity as well impulsiveness- See Roper, Graham and Miller.

  12. PrisonPath March 6, 2013 at 2:45 pm #

    By Joyce–I would say these factors should only apply depending upon the crime he/she is convicted of.

  13. PrisonPath March 6, 2013 at 5:20 pm #

    By Rose–Yes some are to old are sick to do any harm. No good health care they are dying anyway.

  14. PrisonPath March 7, 2013 at 12:42 am #

    By Stephen–As horrible as it sounds, I believe some of those seniors have chosen to be there. Let’s say they are alone, have no family support system and they are recieving what is it now 674.00 a month. No one can pay rent buy food and clothes on that money, many have done well in their working lives and are able to afford retirement on Social Security, but many haven’t. In prison they will get fed 3 times a day, they will see a doctor when needed, they will receive ALL the medication that doctor prescribes and have a bed to sleep in at night. Well what do you do when faced with that or living on the street, in the weather, being preyed upon by every type of social misfit society has to offer.

  15. PrisonPath March 7, 2013 at 2:02 pm #

    By Maria–Age should not be the only factor in considering a sentence. In Ireland there is the JLO program which runs very well. Under this program a person under 18 can be let go sentence free with the consent of the juvenile liaison officer.

  16. PrisonPath March 7, 2013 at 2:25 pm #

    Prison disrupts people’s lives at any age. It can interfere with a young person’s pursuit of a career, time spent with their kids, or the opportunity to even have kids. From that standpoint, it might actually be less disruptive for the quality of life of an older person who has already done these things.

    On the other hand, there is the matter of health care, which is often inadequate in prison. That doesn’t have to be a problem if the authorities would improve the quality of health care provided to inmates. But until then, I’m not going to blame a judge for taking that into consideration.

    By Allen–I know of an elderly man who fondled some children in his neighborhood and got what seemed like a ridiculously short sentence. But an arrangement was made where he would presumably live out the remainder of his life in a nursing home upon his release from prison. The families of the victims were satisfied with that arrangement, as that would ensure that he would have no opportunity to re offend.

  17. PrisonPath March 7, 2013 at 5:47 pm #

    By Tim–Yes, age should matter, be they young or old. I agree that the person’s entire life should be looked at when considering a sentence. Sadly, I believe that people are incarcerated in large part because that is what helps get the politicians one wants to appear as being “soft” on crime and criminals. I believe that the sentencing should really look at a critical factor: how is the sentence for this person going to TRULY serve society and justice? Based on my experience, the federal system will not change based on “justice”. It will only change because of cost / money issues. Some state prison systems have only changed because the money wasn’t there any longer. The federal prison system won’t change until they are forced to change because the money is not there.

  18. PrisonPath March 7, 2013 at 10:47 pm #

    By Zachary–Here are some authorities and studies that might be helpful for defense counsel.

    Age greatly decreases the risk that he will commit another crime, and makes it unnecessary to impose a lengthy sentence in order “to afford adequate deterrence” and “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(B) & (C); see also United States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir. 2008) (recognizing that “district courts have broad discretion to consider individual characteristics like age . . . in fashioning an appropriate sentence” under § 3553(a), “even when disfavored under the guidelines or already accounted for in another part of the calculation”); United States v. Collins, 122 F.3d 1297, 1308 (10th Cir. 1997) (holding, before Booker, that district court did not err in concluding that defendant, who was 64 at the time of sentencing and who suffered from serious health problems, was “less likely to recidivate than the ordinary defendant categorized as a career criminal”), superseded by statute as to different point of law, as recognized by United States v. Jones, 332 F.3d 1294, 1299 (10th Cir. 2003); cf. Banks v. United States, 490 F.3d 1178, 1191 (10th Cir. 2007) (recognizing that “recidivism rates vary with factors like the offender’s age and type of conviction”).

    The Sentencing Commission has found that “Recidivism rates decline relatively consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates.” (Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines, at 12.) The Commission’s study showed that defendants who are over the age of 50 and fall into criminal history category I, have the lowest rate of recidivism—just 6.2%. (Id. at 28.) That rate is just under one-fifth of the rate for very young defendants. (Id.) Importantly, the study did not differentiate between defendants who are over 50, over 60, and over 70. And “[o]ne can only reasonably assume that the trend of decreasing recidivism continues downward after the age of 50.” United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073, at *1, 3 (N.D. Ind. Feb. 3, 2005).
    Sex offenders

    “A large body of evidence has recently accumulated indicating that recidivism in sex offenders decreases with the age of the offender at the time of his release from custody,” and “the aging effect has been recognized as one of the most robust findings in the field of criminology.” (Wollert, R., Cramer, E., et al., Recent Research Underscores the Importance of Using Age-Stratified Actuarial Tables in Sex Offender Risk Assessments.)

    In United States v. Smith, 275 Fed. Appx. 184, 184 (4th Cir. 2008) (per curiam) (affirming downward variance for 64-year-old in child pornography case from advisory guideline range of 78–97 months to 24 part because he “had a low risk of recidivism given his age and lack of mental illness”)

    United States v. Luciana, 379 F. Supp. 2d 288, 297–98 (E.D.N.Y. 2005) (noting that “courts have noted that recidivism is markedly lower for older defendants” and taking defendants’ ages—70 and 80—into account in imposing non-Guidelines sentence), aff’d, 550 F.3d 180 (2nd Cir. 2008) (en banc);

    Nellum, 2005 WL 300073, at *1, 3 (granting downward variance of 60 months based in part on finding that “likelihood of recidivism by 65 year old is very low”; citing Sentencing Commission study and noting that “[t]he positive correlation between age and recidivism is impossible to deny”).

  19. PrisonPath March 10, 2013 at 8:32 pm #

    By Randolph–I can here what you are saying, but the law is there for a reason. One must take responsibility for being caught if the deed is done by that person.

  20. Walter Price March 14, 2013 at 5:56 pm #

    When it comes to something that will impact the rest of a person’s life, every factor should be considered including age. Looking at it money wise we must determine if the risk of giving that person doing the crime again at their age given a shorter sentence vs. how much it would cost. Given that, on the other end of the spectrum we should also factor in youth (mental maturity) and social circumstance.

    • PrisonPath March 14, 2013 at 7:17 pm #

      Hi Walter,

      The studies have shown that the recidivism rate for inmates over 50 is minor.

  21. Mark Barmes June 25, 2013 at 12:15 pm #

    Judges who judge fairly should be commended. Each case should be viewed individually. Otherwise, why would we need judges on the bench? I appreciate the thinking and response by Judge Graham. Thank you, Your Honor!

  22. PrisonPath June 25, 2013 at 1:20 pm #

    Bernadette– We now have Restore Support Network looking after over 50’s in the UK..The main feature of this charity is restorative justice and reconciliation that involves a two-pronged approach..linking ex-offenders with their local communities by providing one to one support, and recruiting members from the general public with no criminal record to assist the delivery of the peer-led programme.The aim of this approach is:(1)-to meet the care and resettlement needs to older persons due for release from prison that will in turn reduce the risk of their re-offending (2).To demonstrate that reformed offenders can be trusted to take responsibility for their actions and embrace a more active citizenship in their local communities (3) to enable older offenders to become role models for other offenders in the criminal Justice system. This Charity was started up by an old ex-offender(hope he does not mind me saying) and is now official so we are a step ahead on this one..they also visit prisons and have a “Buddy” programme for older prisoners looking after one another. Hope this is of help!

  23. Helen June 26, 2013 at 1:21 pm #

    By Helen–Prisons were not built for the elderly. My priority and concern are for those elderly already in prison who are frail and vulnerable. Many suffer medical neglect. It would be nice to have a special facility for them. helen

  24. PrisonPath June 26, 2013 at 3:30 pm #

    By Richard–Many factors go into making such decisions, first and foremost the disposition of the crime, No one wants early release of serial rapist, child murderers,and now domestic Terrorist, menaces to society,are dangerous individuals, as such should serve their full sentence like all criminals, that’s the responsibility of our justice system When free did these individuals take their medications in freedom? or did they neglect themselves to a point of despair which caused them to harm others If a person can not take care of their needs they exhibit antisocial behavior, The criminally insane receive special incarceration in some cases, should we accommodate every emotional and social disorder on a individual basis. If prisons are not run effectively including the dispensing of medication, staff should be replaced by a new competent staff members. In ancient times incarceration wasn’t a problem, in some countries you were trained to be a soldier,executed or died in jail. It’s my bet if that was the case today it would ease the overcrowded prison population. Unfortunately, Prison has become big business police jobs,the construction industry, townships with no resources and many other industries.
    Are we really rehabilitating anyone?

  25. Gloria June 27, 2013 at 11:05 am #

    By Gloria–Why should we spend more tax dollars on special facilities? Most of the elderly pose no threat to society and if not, release them. Lets get smart on crime!

  26. Helen June 27, 2013 at 11:06 am #

    By Helen–I do agree to release if the elderly are capable of caring for themselves, or have family
    That would assume responsibility. Some have no relatives left.

  27. PrisonPath June 27, 2013 at 1:39 pm #

    By Willie–Yes I think it should be.

  28. PrisonPath June 30, 2013 at 6:49 pm #

    by minister willie–Yes, I do sympathize with elderly people having to serve so much time but the truth of the matter is that if we as a society started releasing prisoners when they reach a certain age limit can you imagine all the criminals who would come out of the wood work and start committing crimes at a later age simply because the knew the law would release them sooner than later. It’s a shame that some lesser criminals have to be caught up in the same net that dragged in some of the worst criminal. It’s similar to a fisherman casting a net into the river and unfortunately some smaller fish which should be thrown back out into the river with time to grow have to suffer the same fate of being dragged in and later end up being served on somebody’s plate. There’s a website as well as a book entitled “Crack Cocaine In Jesus Name I Command You To Release Your Hold”, which some chapters can be reviewed on Google, and in one of the chapters it addresses the point, “Why jails and drug rehabs have such a high failure rate when it comes to rehabilitating criminals and the homeless.” See:

  29. January 8, 2014 at 9:30 pm #

    how does this assist elderly “state inmates” who need to be placed in safer and non violent institutions; or even to transferred to another state for the same purpose?

    • PrisonPath January 8, 2014 at 9:44 pm #

      Hi Frank,

      There are two points from this article. The elderly inmates would be better protected in prisons or facilities incarcerating only the elderly. Although numerous facilities have 40 plus tiers, this does not stop completely the danger from violent young inmates who prey on the much older inmates. Second, over crowded prisons can be alleviated by releasing elderly nonviolent inmates. The studies have shown there is little risk releasing a 75 year old inmate who committed a nonviolent crime.


  1. "Compassionate Release" - Prison Path Visitor Information & Inmate Locator- Prison Path - December 28, 2014

    […] we have discussed the inadequate healthcare for elderly inmates and the substantial increase of seniors in prison. The following New York Times Editorial focused on the Federal Bureau of Prison’s so called […]

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