Older Offenders &
Criminal Justice
Sentencing Policy, Community
Sentences, & Female Older
Offenders
Denis Bracken - Faculty of Social Work,
University of Manitoba
“…the number of elderly offenders, though not currently
significant, are growing annually. It may very well be that by
the year 2000, the system will be forced to make
modifications in corrections and change drastically current
sentencing policies related to elderly offenders. Perhaps
prisons resembling retirement villages will need to be
created, staffed with geriatric specialists who can cater to the
needs of growing numbers of elderly offenders. …This
seems to be an inevitable consequence of current crime
trends.”
-Gerri S. Turner & Dean J. Champion, writing in the Journal of Offender
Counseling, Services & Rehabilitation in 1989
Older Offenders & Criminal
Justice
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The criminal justice system is predicated on and
built around the assumption that offenders are
overwhelming young and male.
Much of the literature on desistance says that
males “grow out of crime”
This occurs through some process that includes:
the realization that the offender doesn’t want to
die in jail; the “love of a good woman” theory;
opportunities for a job, education, etc. But this
doesn’t always happen.
Older Offenders & Criminal
Justice
Two trends worthy of particular note with an
impact on older offenders:
I.
Mandatory Minimum Sentence laws
which create the situation of growing old
in prison
II.
Sentencing of older offenders
Mandatory Minimum
Sentences
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These were initially introduced as part of
the movement away from the “tyranny” of
indeterminate sentences.
The sentence is related to the crime
committed, not to the characteristics of the
offender, or some blending of the two.
Judicial Discretion is severely limited if not
completely removed
Mandatory Minimum
Sentences
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Also curtailed, if not quite removed, is the
possibility of early release, as in some kind
of parole or other supervised, possibly
gradual, release.
A study by Julian Roberts of the U. of
Ottawa classified MMS into three
categories:
Mandatory Minimum Sentences
1.
mandatory sentences of imprisonment that allow no
discretion below or above a specific sentence. These
are usually reserved for murder;
2.
mandatory minimum sentences of imprisonment that
require courts to impose a sentence of at least “x” years.
Courts may impose a harsher sentence up to the
statutory maximum but are not allowed to impose a
sentence below the minimum prescribed (the Canadian
firearms mandatory sentences as well as a few other
offences, fall into this category);
3.
mandatory sentences of custody that permit the court to
impose a lesser, or even non-custodial sentence in the
event that exceptional circumstances exist (the
mandatory sentences in England , Wales and South
Africa are examples of this kind of mandatory sentence)
Mandatory Minimum
Sentences
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These also include the “three strikes and
you are out” sentences
Such sentences are based on a third
conviction for a serious offence (felony,
indictable, etc.) In California, it is 25 years
to life.
In these cases, judicial discretion is
usually severely restricted.
Mandatory Minimums & the
“New Punitiveness”
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The media-inspired demand for longer
sentences, despite the general drop in over all
crime rates in Western countries, suggests that
prisons will be/ already are housing people for
longer periods than before.
There is also a decline in the acceptance of
early release/time off for good behaviour as a
tool for institutional management, a way to
reduce offender populations &/or part of
rehabilitative plan may keep people in longer.
Sentencing of older offenders
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Do older offenders “get a break” when
they get to court?
If they so, do older female offenders get a
bigger break than older male offenders?
The answer to both questions appears to
be “yes” at least based on some US data
Sentencing of older offenders
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A 1988 study of plea bargaining in US
federal courts found that offenders over 60
who plea-bargained their case received
sentences less than half as severe as
younger counterparts.
The disparity was greater with non-violent
crimes, but even with violent crimes there
appeared to be an impact.
Sentencing of older offenders
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In a major study in 2000 using Pennsylvania and
Federal courts data, older offenders convicted of
non-drug offences (mostly property and violent
offences) were more likely to receive probation
than their younger counterparts
For those incarcerated, the age effect is
strongest in terms of sentence length for
property offences, and less so for violent or drug
offences.
Sentencing of older offenders
The same study also found that:
1. Older male & older female offenders
were sentenced more leniently than their
same gender but younger counterparts,
when prior record and seriousness of the
offence were taken out.
2. On drug offences, the net effect on
sentence length is not as strong as on
other offences
Sentencing of older offenders
3.
4.
Age resulted in greater leniency for both
male and female older offenders.
The “elderly advantage” was clearest for
males when compared to sentences for
younger male offenders. In other words,
older women received more lenient
sentences than younger women, but the
difference was stronger for older men
than older women.
Older Women Offenders
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Finding data on older women offenders in
prison is difficult, as the numbers are seen
as too small to merit significant attention
A Stats Canada study from 1999 showed
that 2% of female inmates in Federal
custody were over 55. The percentage
was the same for female provincial
inmates.
Older Women Offenders
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More recent CSC data on female
offenders in Federal Penitentiary:
2% are serving sentences of 11 years or
more
18% are serving life sentences
7% are over the age of 50
Older Women Offenders
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There is little research on the needs of
female offenders and even less on older
female offenders
What little research there is mentions
health issues as being of primary concern
Older women in a British study were more
likely than older male prisoners to be in
prison for the first time
Older Offenders,Community
Penalties & Conditional Release
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If given a community penalty (probation,
community service, fine, etc.) or if released on
parole or other early release program, how are
older offenders seen by the system?
Older persons on a limited income may not be
able to handle a large fine
Older persons may also not be in a position to
take part in community service schemes which
require physical labour
Older Offenders,Community
Penalties & Conditional Release
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A British study in 2002 found that 4% of a
sample of over 13,000 persons under
probation supervision were over 50, and
90% of these were male
64% of males over 70 on conditional
release were sex offenders
2% of those males aged 60-69 had CSO’s,
and 0% of women in that age bracket had
CSO’s
Older Offenders,Community
Penalties & Conditional Release
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Canadian data showed that 56% of
women in the Federal system were out on
some form of conditional release
20% of these women were over 50,
suggesting that parole was still an option
for older female offenders in the Canadian
system
Older Offenders,Community
Penalties & Conditional Release
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A 1994 American study of older offenders
on probation in one American state found
them to be overwhelmingly male, with 18%
convicted of a sex crime and 32%
convicted of driving under the influence,
and half of all offenders were being
supervised at a minimum level,
irrespective of their assessed risk to
reoffend.
Conclusions
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The need for further research and for
training in the area of working with the
elderly exists in all parts of the correctional
system
A system developed to deal almost
exclusively with young male offenders
needs to focus some attention on older,
and older female offenders.