VI. When is Imprisonment No Longer Justified?
I don’t think they know what to do with us…. Let us go somewhere … we have served enough time here. We’re no longer a threat to society, why are you holding us?
Elder prisoners are costly to care for, yet research indicates that many of these older inmates represent a relatively low risk of reoffending and show high rates of parole success.
While human rights law does not preclude imprisonment of older offenders, the incarceration of the elderly nonetheless raises two major human rights concerns. First, are the conditions of detention, including medical treatment, consistent with human rights requirements? We addressed some of the considerations surrounding conditions of confinement in preceding chapters. Second, does the continued incarceration of the aging and infirm constitute disproportionately severe punishment that violates human rights even assuming acceptable conditions of confinement? It is to this second question that we turn in this chapter.
Accountability for crime is an indispensable component of a just criminal justice system. Extremely serious crimes warrant long prison sentences. Nevertheless, as prisoners grow old and infirm, the justification for continued imprisonment may diminish. Even if ongoing punishment is warranted, the question remains whether the form that punishment takes should change to reflect age and infirmity. For example, conditional release to home confinement under parole officer supervision could be substituted for continued incarceration.
Within a human rights framework, imprisonment is an acceptable sanction for crime assuming it is imposed pursuant to lawful procedures and that its duration is not disproportionately severe relative to the crime and the legitimate purposes to be furthered by punishment. In domestic as well as human rights jurisprudence, the proportionality of a sentence is typically assessed based on the circumstances that existed at the time of the crime. Nevertheless, while a prison term may have been proportionate at the time imposed, increasing age and infirmity may change the calculus against continued incarceration and in favor of some form of conditional release.
Take the following men confined in state prisons: Homer Edmunds (pseudonym), age 87, has been in prison for 27 years, and for the past two decades he has been in a special unit because of his severe cognitive impairments. Louis Sparrow (pseudonym), age 68, has been incarcerated for 10 years and is blind, has diabetes and leukemia, and is completely paralyzed except for one arm. Thomas Viceroy (pseudonym) is a 65-year-old man who has been in prison 25 years and is dying of stage 4 metastasized esophageal cancer. Each of these men was convicted of a violent crime and received lengthy sentences. Each has already been in prison a long time.
It is hard to see how their continued incarceration meaningfully serves any of the purposes for which their sentences were originally imposed. The main purposes of punishment are retribution, deterrence, incapacitation, and rehabilitation. Retribution has been furthered by their time behind bars and could be further served if they were released from prison by restrictions on their liberty in the community and parole supervision. Incapacitation and deterrence are not necessary, given that these prisoners are not likely to endanger public safety if no longer behind bars but again, if there were a possibility of wrongful conduct, it could be prevented by the conditions of their release. Finally, further imprisonment is unlikely to advance rehabilitation. In these circumstances, continued incarceration would seem to be a disproportionately severe punishment.
Disproportionality and the Purposes of Punishment
Disproportionately lengthy prison terms may violate the prohibition on cruel and inhuman punishment. They may also constitute arbitrary deprivations of liberty in violation of the right to liberty. In either case, they are inconsistent with respect for human dignity. As the South African Constitutional Court has noted:
To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end.
Imprisonment is an extremely severe punishment that should only be used as a last resort when no lesser sanction suffices. Assuming it is warranted, however, the question of proportionality turns then on the length of the sentence.Prison sentences should be no greater than that which would be proportionate to the crime itself, taking into account the seriousness of the offense and the culpability of the offender. Within the boundaries set by proportionality to the crime, the sentence may be shortened if shorter sentences are adequate to further such goals as promoting public safety or rehabilitation. The principle of parsimony is included in the concept of proportionality: the least severe sanction necessary to achieve the purposes of punishment should be the one used.
Ensuring that offenders receive their “just deserts” is an important component of criminal justice. Victims, their families, and society at large legitimately want those who commit crimes to be held accountable by punishment that “fits the crime”; punishment that is commensurate with the severity of the crime and the individual’s culpability. On the other hand, under international human rights law, imprisonment should not be purely retributory. Prison systems “should essentially seek the reformation and social rehabilitation of the prisoner.”
It might be argued that since “just deserts” are established at the time of sentencing based on the crime that had already occurred, nothing that happens after sentencing should affect that determination. While this may be a theoretically correct argument, in practice post-sentencing developments affect retributive calculations in the United States. For example, in states where sentences are set between a minimum and maximum range, parole boards are either explicitly required or tacitly permitted to reassess the seriousness of the offense in determining how long the prisoner should serve.
Some victims, criminal justice professionals, and members of the public believe offenders should always serve the maximum possible sentence. If the maximum sentence is life, they argue the offender should remain in prison the rest of his life. They oppose early release regardless of the offender’s age and infirmity. But such opposition would not seem to be grounded solely in retributive principles. Grief, rage, contempt for those who break the law, punitive ideologies, and politics may influence it as well.
In the US and many other western countries, retribution ordinarily comes into play to set the outer boundaries for the punishment for a particular crime. Non-retributive considerations as well as the principle of parsimony then factor into the determination of the actual sentence. The end result may be a sentence which is less severe than what would have been permissible from a purely retributive perspective. If utilitarian concerns such as consideration of what is necessary to protect public safety can be used to lessen a sentence at the outset of its imposition from that otherwise permitted by retribution, it seems reasonable that ongoing utilitarian concerns could justify reducing the actual time being served in prison below that which retribution might otherwise dictate. Parole boards take public safety into consideration in determining whether to release someone who has received an indeterminate sentence before they have served their maximum sentence. In addition, many states and the federal government contain provisions that permit early release before a sentence is fully served, including for purposes of compassionate release or medical parole.
In the case of serious violent crimes committed by older persons, it might be troubling from a retributive, as well as fairness, perspective if offenders were to escape punishment simply by virtue of age and associated frailty. But once retributive values have been acknowledged, for example because a prison sentence has been imposed and part of it served, there seems to be little basis for insisting that retribution should dictate continued incarceration regardless of other considerations.
It is important to underscore a point that opponents of early release often overlook: prison is not the only form of punishment that serves retributive purposes. Retribution can be furthered through punishment short of incarceration: for example, if an offender is conditionally released from prison subject to specific restrictions that limit his freedom and to supervision by a parole officer.
Incarceration protects public safety by “incapacitating” the inmate, that is, by preventing him from committing crimes in the community. But for older offenders who are declining physically and mentally, incarceration may have little or no added incapacitation value. As noted above, age is inversely correlated with criminal conduct. There are exceptions, of course, and incapacitation may be still be necessary for some older offenders, including those who offend at an older age. But many corrections officials have told us their prisons confine men and women who, by virtue of age, are too feeble or impaired to commit another crime even if they wanted to. Moreover, while there is a theoretical possibility that an old and dying man might commit a crime were he released to his family or a nursing home in the community, such negligible threats as he might pose could be addressed through restrictions on his liberty short of incarceration.
Another utilitarian and crime-prevention goal of punishment is to deter future crime by the individual being sentenced (specific deterrence) as well as by others (general deterrence). With regard to specific deterrence, the same concerns noted above regarding incapacitation apply. Continued incarceration has scant deterrent impact on the older offender who, by virtue of age and infirmity, already poses a negligible threat of reoffending.
Requiring people to remain in prison until the end of their sentence regardless of age and infirmity has no demonstrable general deterrent effect. The theory of general deterrence assumes prospective offenders know the specific sentences for particular crimes, that they engage in a rational cost-benefit analysis of their actions before acting, and that the more severe a sentence is the more likely they are not to commit the crime. It is by no means clear that increasing the length of sentences increases the deterrent effect. But even if the increased severity of the punishment in some situations has increased deterrence value, it does not seem particularly likely that such an effect would come from requiring older offenders to remain in prison into their dotage. It is hard to believe, for example, that a person about to commit murder because of overwhelming rage would desist from the crime because of the possibility that if caught and convicted he might be required to serve not just a long sentence, but one that would keep him in prison even after he has Alzheimer’s disease. In addition, even if there were a deterrent effect from keeping people in prison despite their age and infirmity, there would still be the question of whether the benefits from crime reduction from such deterrence outweigh the costs of incarcerating the old and infirm.
Punishment also promotes crime prevention by communicating society’s condemnation of particular conduct, and thus helps to reinforce (or create) norms of conduct. We are aware of no research that shows that the effective condemnation of crime requires the continued incarceration of prisoners who have become old and infirm.
The final commonly cited purpose of criminal punishment is to promote rehabilitation and reintegration into society. The rehabilitation of incarcerated offenders is not just good penal policy that will enhance the ability of former prisoners to lead productive, law-abiding lives. Efforts to rehabilitate prisoners are also required by human rights law. After providing that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person,” the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States, further mandates that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
Adults can grow and change markedly while incarcerated, especially if rehabilitative programs and opportunities for acquiring new skills and self-knowledge are provided. But it is unlikely that additional rehabilitation is achieved by continuing a prisoner’s incarceration into advanced old age. For an 80-year-old who has been in prison for 25 years and has already participated in whatever educational and skills-building courses were available, more time in prison will not contribute measurably to his reformation. Indeed, what is the rehabilitative potential for a person who has dementia who no longer knows why she is in prison, or even that she is in prison? While there may be exceptions in individual cases, as a general matter it is hard to understand how the goal of rehabilitation is furthered by the continued incarceration of geriatric or dying prisoners.
We note finally that there is a growing view among human rights experts that sentences which by their very terms preclude the possibility of reintegration into society constitute inhuman and degrading treatment. As stated by the dissenting judges in a recent European Court of Human Rights case, “Once it is accepted that the legitimate requirements of the sentence entail reintegration, questions may be asked as to whether a term of imprisonment that jeopardizes that aim is not in itself capable of constituting inhuman and degrading treatment.” These arguments are typically raised in the context of life sentences. But even sentences short of life—for example, those that are measured in decades—can frustrate the goal of reintegration, as can sentences of any length that take offenders to death’s doorstep. If respect for human dignity requires giving each offender the possibility of rejoining society, that may mean releasing the old and infirm into a less restrictive form of punishment before their full prison sentence is served.
Respect for human dignity and human rights is not guaranteed, however, simply by releasing an aging and infirm offender from prison. It is one thing, for example, to release an old and frail woman to a loving family willing to take care of her in her waning days. But men and women who have spent many years behind bars may no longer have family or friends to care for them. They might prefer remaining with the community they have in prison than being released to a nursing home. In addition, abuse and neglect of the elderly in some nursing homes make it clear that the well-being of nursing home residents cannot be taken for granted. Corrections officials must exercise care to ensure that prisoners released to nursing homes will receive appropriate care. They must also ensure that older prisoners are not released to homelessness. Aging persons—even those convicted of serious crimes—have a right to lives free of mistreatment and poor care wherever and however long they live.
 Gloria Donehy, quoted in Strupp and Willmott, “Dignity Denied,” p. 47.
California Legislative Analyst’s Office, “Analysis of the 2003-4 Budget Bill,” February 2003, quoted in Strupp and Willmott, “Dignity Denied,” p.53.
Many of the concerns we raise regarding the old and infirm could also be raised with regard to the incarceration of young people whose physical and mental capabilities have been profoundly limited by injury or disease.
 The prohibition of what are variously described as cruel, unusual, inhuman, or degrading punishments found in many national constitutions as well as in international and regional human rights treaties is the primary basis for prohibitions of grossly disproportionate sentences. Dirk van Zyl Smit and Andrew Ashworth, “Disproportionate Sentences as Human Right Violations,” The Modern Law Review, vol. 67 no. 4, July 2004, p. 543. Article 7 of the International Covenant on Civil and Political Rights provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The European Court of Human Rights has recognized that disproportionately severe sentences can be incompatible with the prohibition on inhuman punishment in Article 3 of the European Convention on Human Rights. For a discussion of proportionality in US constitutional jurisprudence addressing the length of sentences, see Richard S. Frase, “Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: ‘Proportionality’ Relative to What?” Minnesota Law Review, vol. 89, February 2005, p. 571.
ICCPR, art. 9. Article 9 protects individuals against undue or arbitrary deprivations of liberty, which can include unjust sentences of imprisonment. In a number of cases challenging discretionary life sentences, the European Court of Human Rights has recognized that sentences which are arbitrary or disproportionately lengthy can violate Article 5 of the European Convention on Human Rights, although it did not find violations in the cases before it. See for example, Weeks v. United Kingdom, (1987) 10 EHRR 293, March 2, 1987; V v. United Kingdom, App. No 24888/94, European Court of Human Rights (1999), December 16, 1999.
S. v. Dodo, 2001 (3) SA 382 (CC) 303, opinion of Ackerman J writing for unanimous Constitutional Court of South Africa, quoted in van Zyl Smit and Ashworth, “Disproportionate Sentences as Human Right Violations,” p. 541.
 See, for example, van Zyl Smit and Snacken, Principles of European Prison Law and Policy, chapter 2 (principle that deprivation of liberty should only be used as a last resort increasingly prominent in European penal policies and human rights standards). For discussion of European human rights jurisprudence on lengthy sentences, see van Zyl Smit and Snacken, Principles of European Prison Law and Policy, pp. 91-97. See also, Dirk van Zyl Smit, “Outlawing Irreducible Life Sentences: Europe on the Brink?” Federal Sentencing Review, vol. 23, October 2010, p. 39. As discussed in van Zyl Smit, there is growing trend in Europe to consider life sentences without the possibility of release to be inherently inhuman.
 The American Law Institute, “Model Penal Code: Sentencing, Tentative Draft No. 1,” April 19, 2007, sec. 1.02(2).
 See Frase, “Excessive Prison Sentences”; van Zyl Smit, “Outlawing Irreducible Life Sentences.”
 See, for example, section 1.02 of the revised “Model Penal Code” (proportionality assessed in terms of “the gravity of the offenses, the harms done to crime victims, and the blameworthiness of the offenders”). The American Law Institute, “Model Penal Code: Sentencing, Tentative Draft No. 1,” sec. 1.022(2)(a)(i). The concept of just deserts can also set the upper limits on sentencing severity, constraining the severity of punishment that might otherwise be imposed to serve other “non-desert” sentencing purposes such as deterrence and rehabilitation. According to criminologist Richard Frase, there is considerable support in US as well as European sentencing regimes for what he termed “limiting retributivism.” See Richard S. Frase, “Limiting Retributivism,” in Michael Tonry, ed., The Future of Imprisonment, pp. 83-119. See, for example, the Supreme Court of South Africa’s decision S. v. Dodo: “Where the length of the sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offense, the offender is being used essentially offender is being used essentially as a means to another end and the offender’s dignity is assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits.” S. v. Dodo, 2001 (3) SA 382 (CC) 303, opinion of J. Ackerman J writing for unanimous Constitutional Court of South Africa, quoted in van Zyl Smit and Ashworth, “Disproportionate Sentences as Human Right Violations,” p. 542.
 7Office of the High Commissioner for Human Rights, CCPR General Comment 21, Humane Treatment of Persons Deprived of Liberty, U.N. Doc. 04/10/1992 (1992).7
 Kevin R. Reitz, “Reporter’s Study: The Question of Parole-Release Authority,” March 16, 2011, Appendix B to The American Law Institute, “Model Penal Code: Sentencing, Tentative Draft No. 2,” March 25, 2011.
Vera institute of Justice, “It’s About Time.”
See The American Law Institute, “Model Penal Code: Sentencing,” p. 22 (“The overwhelming weight of criminological research suggests that the law’s deterrent effects can rarely be enhanced through marginal increases in the punishment severity.”) See also Appendix A, p. 129, n. 27: “Most criminologists agree that there is little or no evidence in support of this belief [that general deterrence can be effected through variations in penalty severity – although many caution that the absence of evidence is the same thing as affirmative proof that severity-based deterrence does not occur.… there is wide agreement across disciplines that general deterrence is better reflected through increases in the certainty of punishment following criminal conduct than through increases in the severity of threatened sanctions.” See generally Apel and Nagin, "General Deterrence," in Wilson and Petersilia, eds., Crime and Public Policy.
 See generally Apel and Nagin, "General Deterrence," in Wilson and Petersilia, eds., Crime and Public Policy.
 Rehabilitation may be seen as the flip side of incapacitation. “The flip side of releasing prisoners when we think they have been rehabilitated is continuing their confinement when we think they remain crime-prone.” Reitz, “Reporter’s Study,” Appendix B, The American Law Institute, “Model Penal Code: Sentencing, Tentative Draft No. 2.”
 ICCPR, art. 10(1).
ICCPR, art. 10(3).
The question arises most clearly in the case of sentences to life without parole, that is, sentences which by their terms require the offender to spend the rest of his life in prison. But other sentences without the possibility of parole may, depending on their length and the age of the sentenced individual, de facto constitute a sentence to death in prison. European jurisprudence on life without parole sentences is reviewed in van Zyl Smit, “Outlawing Irreducible Life Sentences.” In the context of juvenile offenders receiving life without parole sentences, the international consensus against the practice is even more pronounced: There are currently about 2,600 persons in the United States serving life without parole sentences for crimes they committed before age 18; to our knowledge, not a single youth offender is serving this sentence anywhere else in the world. See for example Connie de la Vega and Michelle Leighton, “Sentencing our Children to Die in Prison: Global Law and Practice,” University of San Francisco Law Review, vol. 42, 2008, p. 983. Human Rights Watch has described elsewhere how the sentence of life without parole for juveniles violates human rights law and the practice of governments around the globe. Human Rights Watch, When I Die, They’ll Send Me Home: Youth Sentenced to Life without Parole in California, October, 2008, http://www.hrw.org/reports/2008/10/17/when-i-die-they-ll-send-me-home; Human Rights Watch and Amnesty International, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States, (New York: Human Rights Watch, October 2005), http://hrw.org/reports/2005/US1005/index.htm. Indeed, the United States’ practice of sentencing youth offenders to life without parole has prompted three human rights treaty oversight bodies in the past six years to find the United States out of compliance with its treaty obligations. The Human Rights Committee (the oversight and enforcement body for the International Covenant on Civil and Political Rights, ratified by the United States in 1992) has said that "[t]he Committee is of the view that sentencing children to life sentences without parole is of itself not in compliance with…the Covenant." UN Human Rights Committee, Concluding Observations of the Human Rights Committee: The United States of America, U.N. Doc. CCPR/C/USA/CO/ 3/Rev.1, (Dec. 18, 2006), para. 35. Moreover, the Committee Against Torture (the oversight and enforcement body for the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994) has stated that life without parole sentences for youth “could constitute cruel, inhuman or degrading treatment or punishment” in violation of the treaty. UN Committee Against Torture, Conclusions and Recommendations of the Committee Against Torture: United States of America, U.N. Doc. CAT/USA/CO/2 (July 25, 2006), para. 34. Finally, the Committee on the Elimination of Racial Discrimination (the oversight and enforcement body for the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty ratified by the United States in 1994) concluded that, in light of the racial disparities in the sentencing of youth to life without parole, "the persistence of such sentencing is incompatible with … the Convention." Committee on the Elimination of Racial Discrimination, Concluding Observations of the United States, U.N. Doc. CERD/C/USA/CO/6 (Feb. 6, 2008), para. 21.
Kafkaris v. Cyprus, ECHR 21906/04, February 12, 2008 (dissenting opinion), p. 5. The majority concluded the life sentence at issue was not “irreducible,” because there was a possibility of release (however slim) and because of that possibility, the sentence did not violate article 3 of the European Convention on Human Rights.
Rob Barry, Michael Sallah, and Carol Marbin Miller, "Neglected to Death," Miami Herald, April 30, 2011, http://www.miamiherald.com/2011/04/30/2194842/once-pride-of-florida-now-scenes.html (accessed November 29, 2011); Cy Ryan, "State closes Las Vegas nursing home after reports of abuse, theft," Las Vegas Sun, August 26, 2011, http://www.lasvegassun.com/news/2011/aug/26/state-closes-las-vegas-nursing-home-after-reports-/ (accessed November 29, 2011).