Oldies but Baddies

Can someone be too old for jail?

A 90-year-old former Nazi officer, Josef Scheungraber, was sentenced Tuesday to life in prison by a German court for ordering the murder of Italian civilians in 1944. Some observers voiced skepticism that he would actually end up in prison given his advanced age. Can someone be too old for jail?

Yes, in Europe. It’s rare, but judges do occasionally reduce or commute a sentence because of age or infirmity. In 2002, 92-year-old Nazi collaborator Maurice Papon was released from Paris’ La Sante prison after being deemed too old and sick to serve his 10-year sentence. And another Lithuanian Nazi collaborator, Algimantas Dailide, was convicted in 2006 but didn’t get a jail term since he was “no longer a threat to society.” Oldsters have been let off the hook for more recent crimes, too. A British court in 2007 declined to imprison a 71-year-old man who had hit his wife in the head with a metal bar because he suffered two strokes after being arrested.

The United States is much stricter. The Federal Sentencing Guidelines do allow judges to take age into account when “the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.” But in practice, the elderly are rarely let off the hook. In 2000, lawyers for a 75-year-old Virginia man argued that he was too old to be sent to jail for shooting the husband of a woman he considered his adopted daughter; he was sentenced to life in prison. Lawyers for 71-year-old disgraced financier Bernie Madoff made a similar case this year; Madoff got 150 years. In 2005, a judge sentenced former Adelphia Communications CEO John Rigas, age 80, to 15 years in jail. (The judge stipulated, however, that if Rigas’ health deteriorated to the point where he was less than three months away from death—as determined by a doctor—he could obtain an early release.)

Although the elderly and infirm don’t get a free pass, they often don’t serve time quite like the rest of us. About half of the states in the union have either separate facilities for older prisoners or special sections dedicated to the elderly. These spaces tend to be smaller and quieter and offer more nursing care. Some offer recreational activities like basketball and softball to help the inmates stay in shape, since healthier prisoners means lower costs. (Many regular prisons have this, too.) A state prison in Kentucky includes its own licensed nursing home; New York’s Fishkill State Prison recently added a special unit for dementia; the Louisiana State Penitentiary, where 85 percent of the population is expected to die in prison, has its own special hospice center (as well as a graveyard out back).

Elderly prisoners can apply for compassionate release as they approach death, but full reprieves are rare. In state prisons, the decision usually falls to a parole panel or the governor; the Federal Bureau of Prisons makes the call for federal prisoners. In 2008, a panel denied release for Susan Atkins, 60, who was convicted in the 1969 Sharon Tate murders and who doctors said had only months to live. But as the prison population swells, and the costs of keeping elderly inmates grows—it’s already three times as expensive to imprison a senior as a young prisoner—states may become more lenient.

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Explainer thanks Ronald Aday of Middle Tennessee State University, Herb Hoelter of the National Center on Institutions and Alternatives, and Larry Linke of the National Institute of Corrections.