Who Are the Old Folks in Prison? Part I

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & Process

An image of a prison guard towerNationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged 60 or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4 percent) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to function as assisted living facilities, and which tend to be located in rural areas at some distance from specialized treatment providers.

Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.

In order to develop a clearer picture of this population, and with the help of two diligent research assistants[1], I set out to gather some data on the Wisconsin prisoners who are aged 70 or older. 

 

In some respects, the information we found surprised me, although I should be clear at the outset that our data leave many important questions unanswered. I suspect that both sides in the compassionate release debate will find at least some support for their positions in what follows.

A word about methodology: data were collected in the summer of 2018 from the on-line offender locator maintained by the Department of Corrections, searching for offenders by birth year. Note that these data only include individuals who are held in state institutions; those who are detained in local jails are not part of this study. For a subset of our offenders, as indicated below, additional data were collected from the Wisconsin courts database.

We identified 299 inmates who were at least 70 years old. The average age was 74.6, with a high of 101. The group also included two nonagenarians. Only eight (2.7 percent) were women. By contrast, 6.3 percent of the overall adult prison population is female. In this sense, women are substantially underrepresented among the oldest inmates.

As to race, the elder group was about 83 percent white, 16 percent black, 1 percent Native American/American Indian, and less than 1 percent Asian. By contrast, the overall adult inmate population is only about 53 percent white, indicating that whites are substantially overrepresented among the oldest prisoners[2].

Even more than such demographic information, I was keen to gather data about the criminal history of the elderly inmates. However, this requires some painstaking cross-referencing of the DOC and courts databases. For present purposes, I contended myself with taking a closer look at a 100-person sample of the original 299[3].

In the sample of 100, the average age is 74.5. Three percent are women, 84 percent are white, and 16 percent are black. The sample thus seems demographically very similar to the overall group of 299.

Not surprisingly—since this is the standard path to prison—all 100 have faced felony charges in at least one case[4]. At least 50 have faced felony charges in multiple cases[5], broken out as follows:
• 2 cases—9
• 3 cases—22
• 4 cases—10
• 5 cases—6
• 6 cases—2
• 7 cases—1

There is, to be sure, a great deal of criminal history among the 50 offenders with multiple cases—they average about 3.5 felony cases per offender, and each case may include multiple charges. It seems likely that many of these elders are in prison now because the sentencing judges in their most recent cases found the length of their rap sheets to be quite worrisome.

But what are we to make of the other half of the sample—the offenders who apparently faced sentencing in their most recent case without a prior felony conviction? Presumably, since they are all now in prison, many of these offenders were convicted of extremely serious crimes during their one experience in felony court[6].

In order to get a better sense of offense timing and severity, we collected additional data about each offender’s most recent felony case[7].

This cut at the data also conveys some sense of where the old folks in prison come from. Our sample of 100 offenders actually presents a surprising degree of geographic diversity, with the most recent convictions occurring in 45 different counties. Eighteen percent were convicted most recently in Milwaukee County, which seems lower than expected, given that more than one-third of overall prison admissions in Wisconsin have come from Milwaukee in recent years. The underrepresentation of Milwaukee in the older cohort may help to explain the underrepresentation of blacks, given the concentration of Wisconsin’s black population in Milwaukee County. In any event, following Milwaukee as a source of elder inmates were the counties of Kenosha (eight of the 100), Dane (seven), and Waukesha (six).

As to date of most recent conviction, there was also extraordinary variation, from May 1973 to July 2018. Fully one-quarter of the sample had convictions that were less than three years old. Clearly, it is a mistake to assume that all or nearly all of our older inmates are serving out very long sentences for very old crimes. Many have committed offenses while in their sixties or even older. On the other hand, a substantial minority (29 percent) have gone 20 years or more without a fresh conviction. It is the old inmates with old convictions who may most warrant a careful reexamination if we are concerned with the efficient use of scarce prison beds—based on general patterns of declining recidivism risk over time, it is likely that at least some of the old-old’s present little ongoing threat to public safety.

In my next post, I will explore the offenses of conviction in a more detailed way, as well as data on sentencing and expected release dates.

[1] I am grateful to law students Lance Duroni and Mitchell Kiffmeyer for their painstaking data-collection efforts.

[2] Ethnic categories like Hispanic or Latino are not broken out in the DOC data.

[3] In selecting these 100, I excluded three inmates who were not serving prison sentences, but were instead either on a community corrections hold at the Milwaukee Secure Detention Facility (two) or in civil commitment (one).

[4] The DOC data also indicate that at least 17 had a misdemeanor case.

[5] This figure is based on charges in the DOC database, which may be an undercount. For instance, if a case resulted in an acquittal or a sentence that did not involve any commitment of the defendant to DOC custody or supervision, it is not clear to me that the case would show up in the DOC data.

[6] For what it’s worth, the DOC data indicate that 5 of these 50 had at least one prior misdemeanor case, including three who had two misdemeanor cases.

[7] “Most recent” was determined by reference to which felony case in the DOC data had the most recent date of conviction. Occasionally, we came across individuals who had two separate cases with convictions on the same date. In these circumstances, I focused on the case with the longest sentence (prison plus extended supervision). For these purposes, I treated a probation sentence as having a length of zero, unless probation was revoked and a prison sentence then imposed. In cases with multiple counts of conviction, and hence multiple sentences, I went with the count that had the longest sentence.

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