The Old Folks Home

When some hated miscreant is convicted for a heinous crime, his angry, contorted, young face snarling out at you from the image in your newspaper, on your screen, it’s so easy to scream that he must be locked up for decades, centuries, until the day he dies, because it’s all so scary and he can’t hurt someone if he’s behind bars. What about the children? What about you?

So the answer has been easy, and one that’s rewarded politicians consistently: increasing the length of imprisonment, punishment, isolation, because, well, who really gives a damn if this person who has demonstrated an unwillingness to live amongst others according to the rules of acceptable behavior ever breathes free air again? It’s a simple solution to a complex problem, but it’s good enough and makes complete sense. Most importantly, you just don’t care enough to risk a headache thinking any more about it. Problem solved.

But years pass, and young men become old men, even older than they would normally age, because prison life isn’t nearly as much fun as you would think.  Three years out, there’s a vague recollection of the harm done. Five years, barely a twinkle. Ten, twenty, fifty, they’re mostly forgotten.

If it was a murder, the memories will be stronger, though still faded. If it was drugs, there likely isn’t a person on the planet who gives a damn if they’re in prison. There was no real real pain in the first place, and the only people who suffer are the spouse and children, maybe the parents if they’re still alive. But no one else cares. Yet there they are, finishing up their 30 years for the safety of a society that no longer remembers they exist.

At age 50, broken old men remain in prison. It’s no longer their punishment, but their tomb.

Corrections officials once thought they had time to prepare for this, but something unexpected happened. Federal data shows that prison inmates age more rapidly than people on the outside — because of stress, poor diet and lack of medical care — so much so that their infirmities qualify them as “elderly” at the age of 50.

This problem is overwhelming the state and federal prison systems’ ability to manage it. And unless prisons adopt a common-sense approach of releasing older inmates who present no danger to the public, this costly group could soon account for a full third of the population behind bars.

The cost factor is in there to play to the conservatives, for whom the human cost may mean little but the out-of-pocket costs are crushing. Why piss away good money on prisoners when it could be spent on bombs instead?

Granting early release to sick, elderly inmates with families who want to care for them would be the humane thing to do. But it also makes good policy sense, given that they are far less likely than the young to commit new crimes. For example, a 2012 study by the American Civil Liberties Union documented that criminal activity drops sharply as people age. In New York, the study found, just 4 percent of prisoners 65 or older return to prison with a new conviction within three years of release; only 7 percent of those who are 50 to 64 do so. In contrast, 16 percent of those 49 or younger return.

We’ve long known that people age out of crime. It’s a young man’s game. We know that viable alternatives to crime help too, but that’s harder to achieve and requires diversion of resources toward helping ex-cons survive. When you’re struggling to put dinner on the table yourself, you don’t give a damn about whether an ex-drug dealer has food.

To state the obvious, our fetish with ever-longer sentences as a palliative was bone-headed, but we just couldn’t help ourselves. When the threat of guns and drugs was scaring the crap out of America, Congress added “use and carry” enhancements, beloved of prosecutors as 18 U.S.C. 924(c), to stack a decade on the back end of other crimes.

The theory was easily digested, carry a gun and get at least another five, if not 30, years. That will teach ’em not to carry guns. Except it didn’t. They carried guns because the other guy might carry a gun, and better to be judged by 12 than carried by six. The law didn’t change behavior, because the theory was directed toward people who wouldn’t commit the crime in the first place. But if you were inclined to sell drugs, the threat of the extra decade wasn’t a good enough reason to die.

Prisons, of course, cannot release people based solely on age. But the states and federal government can expand medical parole programs under which far too few terminally ill and physically disabled people are now released. In addition, parole boards across the country can screen older inmates for release using widely accepted measures to determine whether or not the inmate poses a risk.

The president can commute sentences, can pardon people for crimes that were once dreaded but now don’t bother people very much. But that’s not happening.* The parole board? The same parole board that wields power mercilessly, corruptly, is now going to save us? It is unproductive to pretend to solve one problem by pretending another doesn’t exist.

The best answer for the future is for state legislatures to keep moving away from the disproportionately harsh sentencing laws that brought us to this point in the first place.

Going forward, obviously, though there will be the next scare, as there always has been, which will give rise to shrieks for ever more draconian penalties for the most hated crime du jour. But this does nothing to address the extant problem, that our prisons are filled with unhealthy old men who wouldn’t commit crimes even if they could get away with it.

The problem is that we have an amazing ability to create untenable situations that defy simplistic solutions, but nobody wants to pay attention at the time it’s happening. There is a solution to the use of prisons as waiting rooms for the aged to meet their makers. For crimes shy of murder, commute all sentences over 25 years. By then, you’ve made your point, and there’s nothing more to be gained by holding old men in custody.

It’s a rough solution, and there will be people looking for crime anecdotes to stir outrage and they will find them. But there is no other way than to take up a bludgeon to beat back the excesses of the bludgeon that filled the prisons in the first place. And the secret no one will ever tell you is that there was never any magic as to why a ridiculously lengthy sentence was right and another, less ridiculously lengthy, sentence was wrong in the first place.

There is no possibility that a surgical approach will work. It would be nice, perhaps, but there are far too many inmates, far too much information, for it to be viable. We made a horrible mistake over the years imposing absurdly long sentences. We’re paying for it now. So are the old men in prison. They’ve paid their dues, with interest. And outside of a handful of people, no one remembers why they’re there anyway.

*President Obama has, as of this date, granted conditional commutations to 1,176 and pardoned 148 prisoners. Regardless of how that stacks up to other presidents, it’s a drop in the bucket.

22 thoughts on “The Old Folks Home

  1. John Neff

    As you have noted we have known for a long time that criminal behavior has a strong dependence on age. We have also known for a long time that prison medical care ranges from adequate to criminal indifference and that the age dependence also depends on gender.

    What has not been considered is what type of medical care is available if they are kicked out of prison to reduce costs.

    1. SHG Post author

      You’ve gone to the next level, of what to do with ex-cons who age out of the system. And med care is just one of the many problems, including where they live, how they survive, what they do with the rest of their lives since they’re so well rehabbed for a productive, law-abiding life after all those decades in prison.

      1. Keith

        If you’re going to attempt to sway the conservatives with an argument about costs (The cost factor is in there to play to the conservatives) without taking into account the counter-argument which will quickly be made (it’s going to cost us more elsewhere), you’re just treading water around the issue, no?

        1. SHG Post author

          Whether it will cost us “more elsewhere” is a loaded question. There are few places that are more expensive to deliver warehousing and health care, and less effective in doing so, than prison. Will releasing the old from prison eliminate the entirety of that cost? Not a chance, but we have medicare, SSDI and other social programs in place to deliver some, but not all, of the care prison provides, except more effectively. And for some, there is family out there to take them in and care for them.

          Is this good enough? Beats me, but combined with the fact of prison nation, it’s at worst a wash and at best (a combo of good policy and cost-effectiveness), a principled win.

          1. Troutwaxer

            Most prisoners probably don’t qualify for SS and Medicare, having not put in the requisite funding over the years of their (didn’t happen) employment. They might qualify for Medicaid.

        2. John Neff

          I had no idea how complex this issue was until we had a debate over what was supposed to be a simple cost saving issue that was ended when was made clear that LWOP meant they died inside the prison. A second controversy was not about cost but rather relatives being able to visit a prison hospice ward that was staffed by inmates.

  2. Charles

    “It’s a rough solution, and there will be people looking for crime anecdotes to stir outrage and they will find them.”

    [Ed. Note: Link deleted, because you should have known better.]

    Now if I just could find one more…because the plural of “anecdote” is “data”.

  3. Erik H.

    Some of this problem is illustrated by the semantics of releasing only inmates “who present no danger to the public.”

    Older folks are unlikely to be in the same category of dangerousness as a recent convict, to be sure. But there is obviously no way to guarantee perfect “no danger” conduct from ANY large group of varied individuals, ever. And since these folks have been locked up for decades surrounded by other convicts; are treated poorly while imprisoned; and are generally given atrocious post-release support; it seems even less likely that we’ll get 100% perfection.

    On the one hand, this sort of phrasing may be needed to obtain release concessions from the lock-em-up folks. “These folks may not be perfect. But few folks are; most of them won’t commit crimes at a significantly higher rate than many other folks, and we should let them out because it’s the right thing to do” is a harder sell. But the promise of “no problems” which other folks (not you!) make, seems like a setup for a Willie Horton moment.

    1. SHG Post author

      The “no danger,” “non-violent,” “factually innocent,” and other descriptors are the sort of feel-good horseshit that soothes the terminally afraid and undermines any potential to undo the damage. The “harder sell” is what’s needed, but they’ve already sold fear far too well.

  4. Jim Tyre

    At age 50, broken old men

    Did you really need to acknowledge publicly that you’re broken? (And, of course, that I’m more broken than you.) Thanks, SHG, you’ve just given the millenials one more reason to ignore the wisdom of their elders.

      1. Richard G. Kopf


        Fun fact: Millennials never age. On the contrary, they become more infantile.

        All the best.


  5. LocoYokel

    “The president can commute sentences, can pardon people for crimes that were once dreaded but now don’t bother people very much. But that’s not happening.”

    “The best answer for the future is for state legislatures to keep moving away from the disproportionately harsh sentencing laws that brought us to this point in the first place.”

    Long time reader first post, blame PJ for getting me hooked on legal blogs but…

    Forgive me if I’m mistaken (and please correct me), but my IANAL understanding is that the president can only pardon or commute federal crimes and that at the state level it is up to the individual governors.

  6. John Barleycorn

    So it’s true that Jeff and Chuck got together over New Years in Cedar Rapids and one of the Nina Simone look a like prostitutes they got to make the drive from Minneapolis for the party told them the “secrets” and gave them an out that is gonna shrivel the blue nuts of that miniority leader from New York?

    WTF Charlie Brown!? This is Uuuuuge!!!

    I just knew Chuck was gonna ask you to testify before his Judiciary Committee sooner or later but who knew…

    They gonna make you leak “the plan”, to that news paper your read everyday, the week after you get done telling the world, through the chair, what caring and sympathetic dude Jeff is or what?

    This is gonna be awesome. Don’t forget to firm up the negotiations about how many  depends wearing “convicts” awaiting denture fitting appointments and parole they are the gonna let you take to make the big point later this spring? Those Publishers Clearing house sized savings checks and charts and a cool brief case just won’t do.

    P.S. They selling tickets to those congressional gigs yet or do you still have to camp out and be first in line to get one of those general admission seats?

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