older offenders & criminal justice sentencing policy, community sentences, & female older...

Older Offenders & Older Offenders & Criminal JusticeCriminal Justice

Sentencing Policy, Community Sentencing Policy, Community Sentences, & Female Older Sentences, & Female Older

OffendersOffendersDenis Bracken - Faculty of Social Work, Denis Bracken - Faculty of Social Work,

University of ManitobaUniversity 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 OffenderCounseling, Services & Rehabilitation in 1989

Older Offenders & Criminal Older Offenders & Criminal JusticeJustice

The criminal justice system is predicated on and The criminal justice system is predicated on and built around the assumption that offenders are built around the assumption that offenders are overwhelming young and male.overwhelming young and male.

Much of the literature on desistance says that Much of the literature on desistance says that males “grow out of crime”males “grow out of crime”

This occurs through some process that includes: This occurs through some process that includes: the realization that the offender doesn’t want to the realization that the offender doesn’t want to die in jail; the “love of a good woman” theory; die in jail; the “love of a good woman” theory; opportunities for a job, education, etc. But this opportunities for a job, education, etc. But this doesn’t always happen.doesn’t always happen.

Older Offenders & Criminal Older Offenders & Criminal JusticeJustice

Two trends worthy of particular note with an Two trends worthy of particular note with an impact on older offenders:impact on older offenders:

I.I. Mandatory Minimum Sentence laws Mandatory Minimum Sentence laws which create the situation of growing old which create the situation of growing old in prisonin prison

II.II. Sentencing of older offendersSentencing of older offenders

Mandatory Minimum Mandatory Minimum SentencesSentences

These were initially introduced as part of These were initially introduced as part of the movement away from the “tyranny” of the movement away from the “tyranny” of indeterminate sentences.indeterminate sentences.

The sentence is related to the crime The sentence is related to the crime committed, not to the characteristics of the committed, not to the characteristics of the offender, or some blending of the two.offender, or some blending of the two.

Judicial Discretion is severely limited if not Judicial Discretion is severely limited if not completely removedcompletely removed


Also curtailed, if not quite removed, is the Also curtailed, if not quite removed, is the possibility of early release, as in some kind possibility of early release, as in some kind of parole or other supervised, possibly of parole or other supervised, possibly gradual, release.gradual, release.

A study by Julian Roberts of the U. of A study by Julian Roberts of the U. of Ottawa classified MMS into three Ottawa classified MMS into three categories:categories:

Mandatory Minimum SentencesMandatory Minimum Sentences1.1. mandatory sentences of imprisonment that allow no mandatory sentences of imprisonment that allow no

discretion below or above a specific sentence. These discretion below or above a specific sentence. These are usually reserved for murder;are usually reserved for murder;

2.2. mandatory minimum sentences of imprisonment that mandatory minimum sentences of imprisonment that require courts to impose a sentence of at least “x” years. require courts to impose a sentence of at least “x” years. Courts may impose a harsher sentence up to the Courts may impose a harsher sentence up to the statutory maximum but are not allowed to impose a statutory maximum but are not allowed to impose a sentence below the minimum prescribed (the Canadian sentence below the minimum prescribed (the Canadian firearms mandatory sentences as well as a few other firearms mandatory sentences as well as a few other offences, fall into this category);offences, fall into this category);

3.3. mandatory sentences of custody that permit the court to mandatory sentences of custody that permit the court to impose a lesser, or even non-custodial sentence in the impose a lesser, or even non-custodial sentence in the event that exceptional circumstances exist (the event that exceptional circumstances exist (the mandatory sentences in England , Wales and South mandatory sentences in England , Wales and South Africa are examples of this kind of mandatory sentence)Africa are examples of this kind of mandatory sentence)


These also include the “three strikes and These also include the “three strikes and you are out” sentencesyou are out” sentences

Such sentences are based on a third Such sentences are based on a third conviction for a serious offence (felony, conviction for a serious offence (felony, indictable, etc.) In California, it is 25 years indictable, etc.) In California, it is 25 years to life.to life.

In these cases, judicial discretion is In these cases, judicial discretion is usually severely restricted.usually severely restricted.

Mandatory Minimums & the Mandatory Minimums & the “New Punitiveness”“New Punitiveness”

The media-inspired demand for longer The media-inspired demand for longer sentences, despite the general drop in over all sentences, despite the general drop in over all crime rates in Western countries, suggests that crime rates in Western countries, suggests that prisons will be/ already are housing people for prisons will be/ already are housing people for longer periods than before.longer periods than before.

There is also a decline in the acceptance of There is also a decline in the acceptance of early release/time off for good behaviour as a early release/time off for good behaviour as a tool for institutional management, a way to tool for institutional management, a way to reduce offender populations &/or part of reduce offender populations &/or part of rehabilitative plan may keep people in longer.rehabilitative plan may keep people in longer.

Sentencing of older offendersSentencing of older offenders

Do older offenders “get a break” when Do older offenders “get a break” when they get to court? they get to court?

If they so, do older female offenders get a If they so, do older female offenders get a bigger break than older male offenders?bigger break than older male offenders?

The answer to both questions appears to The answer to both questions appears to be “yes” at least based on some US databe “yes” at least based on some US data


A 1988 study of plea bargaining in US A 1988 study of plea bargaining in US federal courts found that offenders over 60 federal courts found that offenders over 60 who plea-bargained their case received who plea-bargained their case received sentences less than half as severe as sentences less than half as severe as younger counterparts.younger counterparts.

The disparity was greater with non-violent The disparity was greater with non-violent crimes, but even with violent crimes there crimes, but even with violent crimes there appeared to be an impact.appeared to be an impact.


In a major study in 2000 using Pennsylvania and In a major study in 2000 using Pennsylvania and Federal courts data, older offenders convicted of Federal courts data, older offenders convicted of non-drug offences (mostly property and violent non-drug offences (mostly property and violent offences) were more likely to receive probation offences) were more likely to receive probation than their younger counterpartsthan their younger counterparts

For those incarcerated, the age effect is For those incarcerated, the age effect is strongest in terms of sentence length for strongest in terms of sentence length for property offences, and less so for violent or drug property offences, and less so for violent or drug offences.offences.


The same study also found that:The same study also found that:1.1. Older male & older female offenders Older male & older female offenders

were sentenced more leniently than their were sentenced more leniently than their same gender but younger counterparts, same gender but younger counterparts, when prior record and seriousness of the when prior record and seriousness of the offence were taken out.offence were taken out.

2.2. On drug offences, the net effect on On drug offences, the net effect on sentence length is not as strong as on sentence length is not as strong as on other offencesother offences


3.3. Age resulted in greater leniency for both Age resulted in greater leniency for both male and female older offenders.male and female older offenders.

4.4. The “elderly advantage” was clearest for The “elderly advantage” was clearest for males when compared to sentences for males when compared to sentences for younger male offenders. In other words, younger male offenders. In other words, older women received more lenient older women received more lenient sentences than younger women, but the sentences than younger women, but the difference was stronger for older men difference was stronger for older men than older women.than older women.

Older Women OffendersOlder Women Offenders

Finding data on older women offenders in Finding data on older women offenders in prison is difficult, as the numbers are seen prison is difficult, as the numbers are seen as too small to merit significant attentionas too small to merit significant attention

A Stats Canada study from 1999 showed A Stats Canada study from 1999 showed that 2% of female inmates in Federal that 2% of female inmates in Federal custody were over 55. The percentage custody were over 55. The percentage was the same for female provincial was the same for female provincial inmates.inmates.


More recent CSC data on female More recent CSC data on female offenders in Federal Penitentiary:offenders in Federal Penitentiary:

2% are serving sentences of 11 years or 2% are serving sentences of 11 years or moremore

18% are serving life sentences18% are serving life sentences 7% are over the age of 507% are over the age of 50


There is little research on the needs of There is little research on the needs of female offenders and even less on older female offenders and even less on older female offendersfemale offenders

What little research there is mentions What little research there is mentions health issues as being of primary concernhealth issues as being of primary concern

Older women in a British study were more Older women in a British study were more likely than older male prisoners to be in likely than older male prisoners to be in prison for the first timeprison for the first time

Older Offenders,Community Older Offenders,Community Penalties & Conditional ReleasePenalties & Conditional Release

If given a community penalty (probation, If given a community penalty (probation, community service, fine, etc.) or if released on community service, fine, etc.) or if released on parole or other early release program, how are parole or other early release program, how are older offenders seen by the system?older offenders seen by the system?

Older persons on a limited income may not be Older persons on a limited income may not be able to handle a large fineable to handle a large fine

Older persons may also not be in a position to Older persons may also not be in a position to take part in community service schemes which take part in community service schemes which require physical labourrequire physical labour


A British study in 2002 found that 4% of a A British study in 2002 found that 4% of a sample of over 13,000 persons under sample of over 13,000 persons under probation supervision were over 50, and probation supervision were over 50, and 90% of these were male90% of these were male

64% of males over 70 on conditional 64% of males over 70 on conditional release were sex offendersrelease were sex offenders

2% of those males aged 60-69 had CSO’s, 2% of those males aged 60-69 had CSO’s, and 0% of women in that age bracket had and 0% of women in that age bracket had CSO’sCSO’s


Canadian data showed that 56% of Canadian data showed that 56% of women in the Federal system were out on women in the Federal system were out on some form of conditional releasesome form of conditional release

20% of these women were over 50, 20% of these women were over 50, suggesting that parole was still an option suggesting that parole was still an option for older female offenders in the Canadian for older female offenders in the Canadian systemsystem


A 1994 American study of older offenders A 1994 American study of older offenders on probation in one American state found on probation in one American state found them to be overwhelmingly male, with 18% them to be overwhelmingly male, with 18% convicted of a sex crime and 32% convicted of a sex crime and 32% convicted of driving under the influence, convicted of driving under the influence, and half of all offenders were being and half of all offenders were being supervised at a minimum level, supervised at a minimum level, irrespective of their assessed risk to irrespective of their assessed risk to reoffend.reoffend.

ConclusionsConclusions

The need for further research and for The need for further research and for training in the area of working with the training in the area of working with the elderly exists in all parts of the correctional elderly exists in all parts of the correctional systemsystem

A system developed to deal almost A system developed to deal almost exclusively with young male offenders exclusively with young male offenders needs to focus some attention on older, needs to focus some attention on older, and older female offenders.and older female offenders.

older offenders & criminal justice sentencing policy, community sentences, & female older...

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