By, Ashley Nellis, Ph. D., Source, The Sentencing Project
Prisons are a particularly hazardous place to grow old. The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison. Nearly half of prisons lack an established plan for the care of the elderly incarcerated.1)
Because of the disadvantages affecting people in prison prior to their incarceration and the health-suppressing effects of imprisonment, incarcerated people are considered elderly from the age of 50.2) Under current trends, as much as one third of people in U.S. prisons will be at least 50 years old by 2030, the predictable and predicted consequence of mass incarceration.
Warnings by corrections budget analysts of the crushing costs of incarcerating people who are older have gone almost entirely unheeded. Indeed, sociologist and legal scholar Christopher Seeds accurately described a transformation of life without parole “from a rare sanction and marginal practice of last resort into a routine punishment in the United States” over the last four decades.3) And in the contemporary moment of rising concerns around crime, there are reasons to be concerned that ineffective, racially disproportionate, and costly tough-on-crime measures such as increasing sentence lengths will proliferate, leading to even higher numbers of incarcerated people who will grow old in prison. In this, as in many other aspects of its carceral system, the United States is an outlier; in many Western democracies those in their final decades of life are viewed as a protected class from the harsh prison climate.4)
Older incarcerated people describe sentences of life without the possibility of parole (LWOP)— with the expectation that they will die in prison—as particularly cruel, involving a devastating loss of human dignity. Considering the consistent observation across dozens of studies that people “age out” of criminal conduct, the dedication of resources toward a group that is of extremely low risk is a foolish investment. Yet people serving LWOP are a growing share of the overall life-sentenced population and the number of people in prison serving LWOP is at an all-time high. While LWOP sentences have been a sentencing component of the American punishment spectrum for much of its existence, recent mandatory and preferential imposition of life sentences with no chance for parole are a more prominent feature than ever. In 2020, The Sentencing Project produced a 50-state survey of departments of corrections that revealed that more than 55,000 Americans are incarcerated in state and federal prisons with no chance of parole, reflecting a 66% rise in people serving LWOP since 2003.5)
Because compassionate release, whether based on chronological age (geriatric parole) or diagnosis of a terminal illness (medical parole), typically excludes people serving life sentences by statute, the only option for an early release for people serving LWOP is executive clemency. While clemency was common for older people serving life sentences sixty years ago, it was nearly terminated by the 1970s, and is still rarely used today.6)
This report explores the features of the LWOP population in more detail, focusing on the aging demographic in particular. The data presented in this report reflect the patterns of 40,000 people serving LWOP sentences across 20 states.7) These 20 states reflect three quarters of the LWOP population nationwide. The main findings in this report are the following:
Almost half (47%) of the people serving LWOP are 50 years old or more and one in four is at least 60 years old.
In ten years, even if no additional LWOP sentences were added in these states, 30,000 people currently serving LWOP will be 50 or older.
60% of the elderly imprisoned serving LWOP have already served at least 20 years.
In Arizona, Illinois, Louisiana, Michigan, Nebraska, and Pennsylvania, between 66% and 85% of the elderly population serving LWOP has already served at least 20 years.
Half of aging people serving LWOP are Black and nearly 60% are people of color.
Among those who were sentenced as young adults under 25 years old, the overrepresentation of elderly Black people serving LWOP is even more pronounced: two thirds of this segment is African American.
The majority of people serving LWOP have been convicted of murder, but a growing share of the overall LWOP population has been convicted of less serious crimes, reflecting an over-expansion of LWOP.
We make a series of recommendations for reform based on the research presented in this report:
Reinstate parole or resentencing opportunities for those currently ineligible.
Give added weight to advanced age at review hearings. Advanced age considerations should begin at age 50 in light of the accelerating aging process that accompanies imprisonment.
Allow immediate sentence review with presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.
Revise medical parole release statutes to include all incarcerated people regardless of crime of conviction and age.
Upon release, transition elderly persons, including those who have been convicted of a violent crime and those who are serving LWOP and other life sentences, to well-supported systems of community care if they are too frail to live independently.
Require states to disclose the cost of incarcerating elderly people, including the cost of all medical care, as well as projections for future costs. Failing in such fiscal transparency keeps taxpayers in the dark about the true cost of mass incarceration.
Expand clemency release opportunities to reflect their higher usage in earlier eras.