Should we be sending the elderly to prison?

Thanks to our ageing population and the surge in harsher sentences, British prisons are slowly turning into dysfunctional nursing homes.

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With more old people behind bars than ever before, British prisons are slowly turning into dysfunctional nursing homes with a few visitors and a crippling sense of despair. While research suggests that the cognitive abilities of a child are comparable to those of the elderly, should there be an upper age limit for criminal responsibility akin to the infancy defence?

Thanks to our ageing population and the surge in harsher sentences, over 60s are the fastest growing group within our prison population. Over the last decade, their numbers increased by more than double, and by March last year, there were 102 prisoners aged over 80 and 5 who were 90 or older.

The problem lies in the fact that the majority of the older prisoners, particularly those over 60, suffer chronic illness or disability. Yet most prison estates are designed for the young and able. Norwich prison has Britain’s only elderly ward, and it mainly accommodates lifers. The multi-storey wards, narrow doors and the tough regime make for a particularly intimidating and inaccessible environment for elderly prisoners. 

Frail and infirm, older prisoners often struggle to meet their most basic personal activities such as carrying their meals and washing themselves. Social care is thus crucial but such provisions are currently deemed to be “sparse, variable and in some cases non-existent”. Economic solutions are not helping much either. The “buddy system” which pairs older prisoners with younger, more able inmates is limited in scope as intimate care runs a serious risk of abuse.

Another lacking area is healthcare. The NHS computer system is not connected to that of the prison’s health service. As a result, older prisoners with chronic diseases arrive at prison without their medical records. The continuity of previous treatment is therefore jeopardised. Appointments are also often delayed and cancelled, while hospital visits are particularly demoralising as older prisoners do not appreciate being paraded around in handcuffs.

An elderly prisoner once described “healthcare” in British prisons as an “oxymoron”. Inmates report that appropriate medical care is only obtained after significant lobbying on their parts. Elderly prisoners lack the energy and motivation to do so and as such remain forgotten or unnoticed.

With isolation, disability and a deteriorating health, depression is rife among older prisoners. Mental health problems amongst ageing inmates go largely untreated as prison staff fail to distinguish between the effects of old age and symptoms of psychological disorders.

This is not just a humanitarian crisis, but a financial one too. Locking up geriatric prisoners is an expensive affair. It is suggested that older inmates cost the tax payer three times as much as their younger counterparts. Of the £9.4m estimated cost of the Care Act for prisoners, only £2m is for prisoners below 50.

These huge costs are not justified as the likelihood of an older prisoner re-offending is negligible. Prison conditions for the elderly are tough and little, if any, rehabilitative purpose is served in holding them. Elderly inmates who are deemed of low risk to the public should therefore, as the Criminal Justice Alliance argues, be dealt with outside the prison system. Similarly, older prisoners whose needs are better met in the community should not be behind bars.

Much like children, the elderly are vulnerable and easily susceptible to victimisation and the government needs to consider enforcing an upper age limit for criminal responsibility similar to the infancy defence. In more serious cases, including those involving historic offences, a rebuttable presumption against imprisonment would produce more efficient outcomes such as electronic tagging and house arrest.

Worldwide, progress has been slow but forthcoming. In 2011, the legislature in Louisiana passed a law making it easier for non-violent prisoners over the age of 60 to obtain parole hearings. Similarly in Sweden, since 2005, anyone with a sentence of up to six months could request an electronic bracelet over imprisonment. In Britain, however, the Ministry of Justice still resists the notion that older prisoners are a group that warrants specific mention.

Given that the UK’s minimum age of criminal responsibility remains one of the lowest in the world, our criminal justice system continues to fail those at the extreme ends of our society’s age spectrum. Prisoners age fast and action needs to be taken now. Any delay is at our collective peril.

Andrew Katzen is a Partner at Hickman & Rose, a specialist criminal justice and civil liberties law firm. Andrew has over 20 years experience in criminal defence work. Alia Mohammad and Ghada Eldemellawy contributed to the research in this article.