A principled approach to separating the fusion between nursing homes and prisons

Elderly people are a far lower risk to community safety than other individuals. Despite this, elderly prisoners are filling prisons at an increasing rate. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades—far more than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently from other offenders. The key reason for this is that elderly offenders reoffend at about half the rate of other released prisoners, but the cost of incarcerating the elderly—due to their more pressing health needs—is more than double. The maturity and infirmity of most elderly offenders mean that they present a far lower risk to community safety than other offenders do. The sentencing system should be reformed to properly accommodate elderly offenders’ relevantly different situation. This Article argues that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and by using progressive forms of punishment, especially electronic monitoring. These reforms will not make communities less safe, but they will reduce the fiscal burden on the sentencing system and enhance the normative integrity of the sentencing process.