Should We Send Elderly Offenders to Prison?

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Should elderly offenders be excused from serving time in prison, or be released early? It’s a question that is increasingly relevant, as overcrowding in our prisons becomes a serious issue.

The purpose of prisons

For centuries, prisons have served as a convenient way for society to deal with those who commit criminal offences – places where those who have been convicted can be kept separate from the rest of society.

There are three main purposes of imprisonment:

  • To deter the offender and others from carrying out similar crimes.
  • To punish the offender.
  • To rehabilitate the offender.

Although our prison system is supposed to promote rehabilitation, most people now recognise that prisons do very little of to put inmates on the right track, and can even be counter-productive. It is generally acknowledged that the main purpose of imprisonment is now to punish people for the crimes they have been found guilty of.

But the emphasis on sending people to prison rather than diverting them away from the criminal justice system has contributed to overcrowding and the spirally costs associated with administering the prison system.

The issue of overcrowding

Prisoner numbers in Australia reached a 10-year high of 33,791 in 2014, putting pressure on correctional centres across the country. In NSW, prisons are almost at capacity, housing 11,100 people. The NSW Government is now commencing the use of modular cells to create more space in existing prisons where necessary. The government is also considering re-opening mothballed prisons, such as Grafton, to ease the overcrowding.

Elderly inmates

In the UK, elderly inmates are one of the big contributors to overcrowding. The New Statesman has likened UK prisons to “dysfunctional nursing homes” and with an increase in harsher sentences, the fastest growing age group in the prison population is the over 60 year olds. In fact, this age group has more than doubled over the past decade.

This gives rise to many other problems. The medical needs of the older inmates are greater, especially because many suffer from chronic diseases. This puts increased financial pressure on the system’s ability to care for them. The design of prisons is also an issue – most have flights of stairs that inmates must constantly negotiate. Cells are small, doorways are narrow, and a generally tough regime of discipline puts elderly inmates at increased risk. It is estimated that these inmates in the UK are costing the government about three times more than their younger counterparts.

The problem is so pronounced that one prison in the UK now has a dedicated ward for elderly inmates, most of whom are serving life sentences.

In Australia, while the median age of prisoners is 34 years, the over 65 age group represents two per cent of the total prisoner population, according to the Australian Bureau of Statistics. Many of the offenders in this age group have been imprisoned on charges of sexual assault.

The manner in which elderly prisoners are sentenced and managed in Australia is sure to become an issue in coming years, particularly with the aging of prisoners who are currently serving life or very lengthy sentences, and the ageing population as a whole.

Lenient sentences for the elderly

We have all heard the bad press about prison sentences that the community considers too lenient, but there is an underlying issue about what to do with prisoners as they age. There will always be a difficulty in balancing the need to punish offenders against how the needs of offenders will put pressure on resources that are already strained.

These competing needs may explain the court’s decision in the case of 76-year-old Sydney man Nathaniel Barker. 7 News reported that Mr Barker had been charged 25 times with driving while his licence was disqualified. He successfully appealed a year-long prison sentence, with the court instead imposing a four-month suspended sentence.

The judge was concerned that Mr Barker did not seem to understand the gravity of his conduct, but also recognised that imprisonment was a very significant sentence for traffic offences, particularly because of Mr Barker’s advancing age.

A maximum age for imprisonment?

These issues lead to the question of whether there should be a maximum age limit for prison sentences. In other words, whether the concept of life imprisonment should be replaced with imprisonment up to a certain age, or whether a person cannot be imprisoned after they reach a certain age. Let’s say, for example, 75. Someone who commits a serious crime that would normally attract a life sentence may be imprisoned up until the age of 75, and would be then required to serve the remainder of the sentence in home detention.

The courts would be unable to consider such a regime without legislation to underpin it. And parliament would only enact the legislation if the community supported it; which may be unlikely given that state elections are frequently won or lost on the toughness of each party’s law and order policies.

But the problem of overcrowding won’t go away, and it’s likely an ageing prison population will soon be an issue in Australia. Even if a maximum age for imprisonment simmers away as a background issue without really being seriously considered, the NSW Government might well soon find it necessary to address the issues of elderly inmates, perhaps by creating a special wing to accommodate them or otherwise.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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