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Gubler Petersilia Research Paper Re Ca Pra Elderly Prisoners Are Literally Dying for Reform Autumn 2005-2006

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California Prison Reform
Autumn 2005-2006

Elderly Prisoners Are Literally Dying For Reform

Tia Gubler
January 23, 2006
Joan Petersilia

California Sentencing & Corrections Policy Series Stanford Criminal Justice Center Working
Papers. Distributed for Review and Comment only. Do not cite without author's permission.

Electronic copy of this paper is available at: http://ssrn.com/abstract=977249

Introduction
Helen Loheac is eighty-two years old. At five feet tall and ninety pounds she is
hardly a threat. Nonetheless, three times a week she is shackled and placed in waist
chains for a forty-mile drive to the Riverside County Medical Center where she receives
dialysis for chronic kidney failure. Two $24.75-an-hour armed corrections officers
accompany her. This all day trip is exhausting and often leaves Helen with severe
bruising on her hands and feet from the shackles and chains. The stress of these trips
compounds the severity of her kidney problems, but without them she would die. She is
a non-violent, non-serious offender, convicted of passive participation in a conspiracy
with her son. Helen will likely die behind bars.1
In the last twenty years, the number of older prisoners has increased by 750
percent nationwide.2 Unfortunately, the prison system’s ability to deal with an
increasingly geriatric population has not adapted at a similar rate. The current conditions
that many older prisoners now face are appalling. Some of them are diabetic but are fed
the same food as other prisoners; many do not receive the medicine they need for heart or
kidney conditions; others are confined to wheelchairs yet assigned to top bunks.
Growing old in prison has become a unique form of punishment. Part I of this paper will
examine the characteristics of the aging population within the California prison system,
the specific problems the population faces, the rising cost of maintaining this population
in the absence of reform, and finally, the level of risk these prisoners pose. Part II will
examine possible solutions for dealing with the graying of the prison population,
1

See California’s Aging Prisoner: Demographics, Costs, and Recommendations Before the Subcomm. On
Aging and Long Term Care 58 (2003) [hereinafter California’s Aging Prisoner] (statement of Ms. Gloria
Killian); Sandra Kobrin, Dying On Our Dime – California’s Prisons Are Teeming with Older Inmates Who
Run Up Staggering Medical Costs, L.A. TIMES, June 26, 2005.
2
California’s Aging Prisoner, supra note 1, at 18 (statement of Professor Jonathan Turley).

California Sentencing & Corrections Policy Series Stanford Criminal Justice Center Working
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Electronic copy of this paper is available at: http://ssrn.com/abstract=977249

including solutions currently implemented in other states. Part III will suggest certain
policies for implementation within the California system.
Part I: The Graying Prison Population in California
The adoption of three-strikes laws, sentence enhancements, and reduced parole
opportunities means that prisoners spend more and more time behind bars and more
inmates will grow old in prison. As of 2003,3 there were approximately 6400 elderly
inmates4 in California—approximately four percent of the prison population. In its
analysis of the 2003-04 Budget Bill, the Legislative Analyst’s Office predicted that this
number would increase to 30,200 by the year 2022, approximately sixteen percent of the
population.5 Other analysts predict that this number will increase to over 50,000—
approximately a third of the prison population—by 2025.6 But who are these prisoners
and what are they costing California?
A.

Demographics of Elderly Prisoners in California
Of the 6400 prisoners mentioned above, fifty-five percent are between fifty-five

and fifty-nine years of age; twenty-five percent between sixty and sixty-four; twenty
percent are sixty-five years or older.7 Only 300 of these prisoners are female.
Elderly criminals are typically broken down into three categories: (1) those who
are incarcerated for the first time at an elderly age; (2) those with long criminal histories
marked by periods of freedom and periods of incarceration; and (3) those who are aging
3

I encountered significant difficulties finding analysis of 2004 data. As such, this paper discusses and
utilizes 2003 data.
4
Defined as 55 or older. The need for a uniform classification system will be discussed later in this paper.
5
LEGISLATIVE ANALYST’S OFFICE, ANALYSIS OF THE 2003-04 BUDGET BILL, [hereinafter LAO ANALYSIS]
http://www.lao.ca.gov/analysis_2003/crim_justice/cj_04_5240_anl03.htm#_Toc32742721 (last visited
Dec. 23, 2005).
6
California’s Aging Prisoner, supra note 1, at 18 (statement of Jonathan Turley).
7
CALIFORNIA DEP’T OF CORRECTIONS AND REHABILITATION, CALIFORNIA PRISONERS & PAROLEES 2003
(2005), http://www.cya.ca.gov/ReportsResearch/docs/Annual/CalPris/CALPRISd2003.pdf (last visited Jan.
17, 2006).

3
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in the prison system as they serve long sentences for crimes they committed when they
were much younger.8 Certainly these differing categories raise questions as to whether
all elderly prisoners should be treated the same. The first group often commits serious
crimes, has adjustment problems, and is at the highest risk for being victimized by other
inmates. The second group adjusts better to prison life but may still have substance abuse
problems and may lack skills to help them cope in the community. The third group has
adjusted well to institutional life but may be difficult to place in the community.9
Of the 6400 total prisoners in the California system, thirty-five percent have been
sentenced for non-serious, non-violent crimes.10 Within this subset, approximately fifty
percent have been incarcerated for drug related offenses, nine percent for driving under
the influence, and about eighteen percent for petty theft and burglary.11
B.

Problems Faced by the Elderly
Aging inmates have similar needs to those of the aging population in the general

community. For example, many people will need eye glasses, hearing aids, walkers, bath
rails and other accommodations as they age. Some people will need heart surgery or
treatment for neurological diseases like Alzheimer’s. Others will need near constant
supervision as they age. Inmates are no different in this regard. On the other hand,

8

William E. Adams, The Incarceration of Older Criminals: Balancing Safety, Cost, and Humanitarian
Concerns, 19 NOVA L. REV. 465, 482 (1995). See also CALIFORNIA DEPARTMENT OF CORRECTIONS, OLDER
INMATES: THE IMPACT OF AN AGING INMATE POPULATION ON THE CORRECTIONAL SYSTEM; AN INTERNAL
PLANNING DOCUMENT 17 (1999) [hereinafter IMPACT OF AN AGING INMATE POPULATION].
Some people include a fourth category—the chronic offender. These are offenders with a propensity for
criminal activity but who have never been incarcerated before. See Nadine Curran, Blue Hairs in the
Bighouse: The Rise of the Elderly Inmate Population, Its Effect on the Overcrowding Dilemma and
Solutions to Correct It, 26 NEW ENG. J. IN CRIM. & CIV. CONFINEMENT 225, 239 (2000).
9
JOAN B. MORTON, U.S. DEP’T OF JUSTICE, AN ADMINISTRATIVE OVERVIEW OF THE OLDER INMATE 1, 11
(1992).
10
California’s Aging Prisoner, supra note 1, at 3 (statement of Mr. Stan Neal).
11
I could not find information on the percentage of the elderly convicted for sex offenses. In 1997, an
estimated 19.21% of the elderly were convicted for sex crimes involving children. See IMPACT OF AN
AGING INMATE POPULATION, supra note 8, at H-2.

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inmates have unique needs due to the characteristics of their lives before they entered
prison. Research shows that, on average, prisoners are roughly seven to ten years older
physiologically than they are chronologically.12 This is partly due to poor dietary history,
chemical abuse and the stress of being in prison. Stanford University Professor Philip
Zimbardo, an expert on the psychology of imprisonment and violence, has said:
[O]lder inmates tend to be sicker than other people their age when they
enter prison, typically because of drug and alcohol abuse earlier in life,
and there is every reason to expect that the stresses of prison life will
impact on the already greater vulnerability of the aged. We can expect
them to suffer from more vascular, neurological, respiratory and
endocrine disorders than their non-institutionalized peers . . . they will
have more extensive vision and hearing problems, more problems with
walking, require special diets and ultimately are more prone to
Alzheimer’s and Parkinson’s diseases.13
Other commonly mentioned illnesses among elderly men in prison are diabetes and
Hepatitis C. Some are on dialysis machines, receive oxygen, or have cancer.14 Female
prisoners are often even more at risk due to their distinct needs. Richard Aday, author of
the book Aging Prisoners: Crisis in American Corrections, has said, “Older females,
oftentimes grandmothers, have special health care needs that are very distinct from men.
Necessary health programs like therapeutic services, cervical and breast cancer
screenings and nutritional meals containing calcium and fresh vegetables are not widely
available.”15 Also, because female prisoners are such a small percentage of the prison
population at this time, their needs are most neglected

12

California’s Aging Prisoner, supra note 1, at 18 (statement of Jonathan Turley). Florida recently
concluded that their prisoners are 11.7 years older than their chronological age. Id. at 19.
13
Elderly Prisoners to Pose Major Problems Under Three-Strikes Law, STAN. UNIV. NEWS SERV., Nov. 2,
1994, at 3.
14
Stephanie Pfeffer, On the Docket: One Strike Against the Elderly: Growing Old in Prison, MEDILL NEWS
SERV., Aug. 2002, at 2.
15
Id. at 1.

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Apart from healthcare issues, elderly prisoners also face victimization from
younger inmates. Jonathan Turley, one of the nation’s foremost experts on geriatric
prisoners, has said, “We all know grandparents who complain they’re afraid to walk at
night because of crime. Imagine being a geriatric in a neighborhood where everyone is
certifiably violent.”16 As a general matter, leaving older prisoners in conventional
prisons leads to inefficient healthcare administration, victimization, and a system that is
simply untailored to the needs of a clearly non-homogenous population.
C.

Costs of Maintaining Elderly Prisoners
The impact that the increase of elderly prisoners will have on California’s budget

is staggering. Right now, the national average for housing an inmate is around $22,000.17
The average cost of housing an elderly inmate is closer to $70,000, more than three times
the cost of housing a younger inmate.18 Most of the added costs of imprisoning elderly
prisoners are healthcare related. Inmates have a right to healthcare under the Eighth
Amendment. In Estelle v. Gamble,19 the Court held that inmates have a right to be free of
“deliberate indifference to their serious health care needs.” Since this case, three basic
rights have emerged: (1) right of access to care; (2) right to the care that is ordered, and
(3) right to a professional medical judgment.20 Despite this constitutional guarantee,
prisons are just not equipped to take care of elderly prisoners. Rarely are there systems in
place to monitor chronic problems or to implement preventative measures. As a whole,
doctors, nurses, and correctional officers are not trained to deal with age-related illnesses.

16

California’s Aging Prisoner, supra note 1 (statement of Jonathan Turley).
Pfeffer, supra note 14, at 4.
18
See id.; California’s Aging Prisoner, supra note 1, at 21 (statement of Jonathan Turley).
19
429 U.S. 97, 104 (1976).
20
WILLIAM J. ROLD, Legal Considerations in the Delivery of Health Care Services in Prisons and Jails
(2001).
17

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California currently has no institutions exclusively dedicated to the care of elderly
inmates. In fact, most anecdotal evidence reveals that elderly prisoners are simply left to
fend for themselves.21
For those that do receive care, the cost can be high. For example, one inmate in
the Vacaville prison has survived four types of cancer and a stroke. He currently takes
twelve pills a day that cost approximately $1800 per month.22 One seventy-two year old
woman suffers from emphysema, COPD, heart disease, and arthritis. She is unable to
walk more than fifty feet without stopping to catch her breath. Her doctors estimate that
her cardiac care alone has cost three quarters of a million dollars.23 There are costs
incurred from preparing special diets or constructing jail cells that can accommodate
people in wheelchairs. Or consider that every time an inmate needs to be transported to
an offsite medical facility for hospitalization, dialysis, or other medical purposes, he must
be accompanied by two correctional officers. This is an expensive proposition.
If it is expensive now to take care of elderly prisoners, one can only imagine what
effect the burgeoning elderly population will have on California’s budget. Using
conservative calculations, Jonathan Turley estimates that California will be looking at a
$4 billion budget just for elderly prisoners by 2025.24 This is the equivalent of the entire
correctional budget today. The implications of these calculations are grave.
D.

Are Elderly Prisoners High Risk?
Certainly elderly inmates are high cost, but research reveals that they are not high-

risk. Indeed, the view that criminal behavior declines with age is a well-accepted
21
22

California’s Aging Prisoner, supra note 1, at 6 (statement of Stan Neal).
California Struggling with Growing Numbers of Elderly Prisoners, ASSOCIATED PRESS, June 9, 2002, at

1.
23
24

California’s Aging Prisoner, supra note 1, at 59 (statement of Gloria Killian).
Id. at 22-23 (statement of Jonathan Turley).

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principle. Figure 8 shows that nationwide, arrests were fewer than five percent among
individuals fifty years of age and older.25

Additionally, numerous studies reveal that age is one of the most reliable predictors of
recidivism.26 As Figure 9 shows, older parolees are only reincarcerated approximately
1.4 percent of the time.27

25

LAO ANALYSIS, supra note 5.
California’s Aging Prisoner, supra note 1, at 27 (statement of Jonathan Turley).
27
LAO ANALYSIS, supra note 5.
26

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Ironically this means that as the costs of imprisonment go up, the benefits of
imprisonment, in terms of public safety, go down.
For this reason, any wholesale reform of California’s prison and sentencing
system must incorporate reform for treatment of elderly prisoners. If properly managed
and supervised, early release into the general population is a feasible way to cut costs
without increasing risk. Additionally, California should look to other states that have
begun to successfully deal with the problem of aging prisoners. The next section will
explore these options.
Part II: Suggested Reforms for the Elderly
The first part of this section will discuss the need for uniform classification
systems. Having uniform classification systems in place will make it significantly easier
to evaluate the effectiveness and applicability of other reform programs. The rest of this
section will focus on steps other states are taking to deal with the aging of their prison
population, divided by risk group. These programs include the development of

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preventative monitoring systems, early release, and the creation of separate geriatric
facilities. The most glaring omission is that only two of these states, Florida and South
Carolina, have specifically addressed the needs of aging female inmates.28 Other steps
that would improve the elderly prison problem would include sentencing reform and
changes to current compassionate release programs.
A.

Classification
i.

Age

Developing a uniform age classification system is a necessary first step to
implementing effective reforms for the elderly. At present, it is virtually impossible to
determine how many elderly are incarcerated nationwide because scholars and correction
officials differ as to what age is an appropriate cut off to label someone as elderly. Some
characterize the elderly prison population as those prisoners who are sixty-five years old
or older, while others start counting as low as age fifty. Without a uniform classification
system it is virtually impossible to track costs, identify trends, or determine statistics
about elderly care within the prison system. Without a classification system “you can’t
take advantage of opportunities to combine people in institutions . . . [you can’t] take
advantage of economies of scale. You just don’t know where these costs are coming
from. You’re not tracking them.”29
The National Institute of Corrections recommends that correctional agencies
nationwide adopt age fifty as the starting point for determining who qualifies as an
“older” offender.30 Choosing age fifty would properly account for at least some of the
differences between the chronological and physiological ages of prisoners. As discussed
28

IMPACT OF AN AGING INMATE POPULATION, supra note 8, at 14.
California’s Aging Prisoner, supra note 1, at 7 (statement of Stan Neal).
30
IMPACT OF AN AGING INMATE POPULATION, supra note 8, at 4.
29

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in Part I, it is almost universally acknowledged that prisoners are between seven and ten
years older physiologically than they are chronologically, which makes it important that
the chronological starting point be at a young enough age. This would more effectively
allow for early health care, intervention, and prevention programs to minimize some of
the long-term medical costs and other problems associated with older offenders.
ii.

Risk Level

It is also vitally important to develop a uniform classification system to define the
risk level of each prisoner. There are three basic categories of inmates: low-risk, midrisk, and high-risk prisoners. Being able to accurately identify which category each
prisoner falls into is critical in evaluating which one of the following programs is most
suited to any given prisoner.
B.

Solutions for Low-Risk Prisoners
The Legislative Analyst’s Office estimates that approximately thirty-five percent

of the elderly population were sentenced for non-violent and non-serious offenses.31
i.

Early Release

One of the most commonly suggested approaches to dealing with the elderly
prison population, and often the most controversial, is the implementation of early release
programs. Those who oppose early release programs mainly do so for retributive
reasons—they believe that “if you do the crime, you do the time” and you should not be
released simply because you are old. This is especially true in California where the
predominant view is that prisoners cannot be meaningfully rehabilitated. Legislators also
worry that if they advocate releasing convicted killers—even if they are old and sick—
they will be viewed as soft on crime.
31

California’s Aging Prisoner, supra note 1, at 3 (statement of Stan Neal).

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Others who oppose early release do so for public safety reasons. It is important to
remember, however, that most people advocating for early release do not support release
that does not adequately take into consideration risk to the public. Only those prisoners
classified as low-risk would be considered for such a program. At least one program,
Projects for Older Prisoners, has been designed with this in mind.
a. POPS
Founded in 1990 by Jonathan Turley, Projects for Older Prisoners (POPS) was the
first legal organization in the nation to focus exclusively on older and geriatric prisoners.
POPS has developed a system for the identification of low-risk older prisoners for
alternative forms of incarceration or special release programs. All POPS offices are run
out of neighboring law schools and are staffed by volunteer students with a staff of
attorneys and a supervising law professor.32
When a state enlists POPS services, the first step is for POPS to gather the
prisoners together in their facility and explain the program. This includes the program’s
one rule: If a prisoner lies to someone in the course of his or her POPS evaluation, they
will be disqualified for the program and never considered for POPS again.33 This is true if
a single fact is misrepresented, manipulated, augmented or changed. A prisoner must
also meet the minimum eligibility requirements. In order to qualify, a prisoner must be at
least fifty-five and have already served the average time for his or her offense. Inmates
convicted of first-degree murder or sex offenses are automatically disqualified from
participation in the program.

32
33

California’s Aging Prisoner, supra note 1, at 25 (statement of Jonathan Turley).
Id. at 25-26 (statement of Jonathan Turley).

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Once an inmate is deemed eligible for POPS, he or she is assigned a caseworker.
This caseworker is usually a law student who is in charge of conducting interviews with
the prisoner and looking at his criminal history, medical history, pattern of criminality,
health, employment, and family background, as well as any sort of chemical dependency
history. The caseworker reads the court and news files that are publicly available,34 talks
to the correctional staff regarding the prisoner, looks at the prison files, and examines any
disciplinary accounts and/or hearings. At this stage, all the gathered information is then
used to conduct two separate recidivism analyses.35 The use of computers has aided
significantly in the accuracy of recidivism predictions.36 POPS then uses these
recidivism evaluations to determine prisoners who are low-risk on both tests. These are
the only prisoners that will eventually be recommended for release. But, this by no means
ends the process.
At this stage, the caseworker goes back out into the field to consult with the
victim or the victim’s family. Victim consultation has been a requirement since the
program began in 1990—the first program to have any such requirement. An interview
with the victim, or victim’s family, can reveal inconsistencies in information obtained
from the prisoners, as well as violence or aggression not evident from the written record.
POPS has turned people down on the basis of these victim consultations, even though the
prisoner was statistically low risk.37 If the victim has no additional information about the
prisoner, and does not oppose release, the caseworker will advocate on the prisoner’s

34

LexisNexis and Westlaw are good sources for this type of information. Law students have free access to
these research sites while enrolled in law school.
35
I tried to contact Jonathan Turley to obtain specific information on these recidivism analyses.
Unfortunately, Professor Turley did not return my emails or phone calls.
36
California’s Aging Prisoner, supra note 1, at 25 (statement of Jonathan Turley).
37
Id.

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behalf to the POPS members. After taking a vote, the POPS members will decide
whether to recommend the prisoner for parole, probation, or pardon, depending on what
mechanism the state has set up.
When presenting information to the appropriate board about their findings, POPS
also includes information about where a prisoner will live after release—including how
much space they will have, who owns the house, whether or not it is accessible to an
older person—and the source of money that the prisoner will live on, including whether
the prisoner will qualify for social benefits. Many of these prisoners have family and
friends that can bear the cost of their care upon their release. But even if such prisoners
require care or assistance from the federal government, state, or county, it is far cheaper
to provide medical care, assistance, and any necessary treatment outside of the
correctional setting. Not to mention the benefits of spreading the costs between the
differing levels of government.
This post-release plan is arguably one of the most important parts of POPS. In the
words of Jonathan Turley:
The reason POPS has been successful is because we sweat the specifics . . .
It’s called a soft landing. And a soft landing requires you to set up the older
prisoner with some regiment. Older individuals actually prefer regiment
. . . They tend to gravitate towards regiments in terms of taking their pills,
in terms of their movements. Regiments are good. If you setup a regiment
for a geriatric prisoner, the prisoner will stick with that regiment and will
not divert.38
At this point, POPS has chapters at law schools in Virginia, Maryland, Louisiana,
North Carolina, Michigan, Florida, Illinois, and the District of Columbia and has secured

38

Id. at 29 (statement of Jonathan Turley).

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the release of hundreds of prisoners.39 So far, not a single person that POPS has
recommended for release has been reincarcerated. A zero recidivism rate is an
astonishing accomplishment, one that Jonathan Turley is especially proud of. Part III
will discuss the requirements to implement such a program in California.
b. Compassionate Release
Compassionate release programs call for the early release of prisoners with
terminal illnesses that are expected to die within six months and whose release poses no
risk to society. Although this is not a program for the exclusive use of the elderly, a vast
number of people qualifying for this program are in fact elderly. Unfortunately, most
compassionate release programs are virtually unused.40 In California, compassionate
release is only responsible for releasing an average of twelve people a year since 1997.41
Many prisoners and family members are unaware of an inmate’s right to release under the
program. For those that are aware of the program, it is often nearly impossible to
effectively wade through all the paperwork without help. For an elderly inmate serving a
life sentence the process is especially complicated. First, a prison doctor needs to verify
that death is expected within six months. Then, the application goes from the warden, to
the director of the corrections department, to the Board of Prison Terms, and finally to
the original sentencing judge for final approval.42 The application process is so long that
many inmates die before any decision is reached.43 In 2003, of the forty-eight inmates

39

See Jason S. Ornduff, Releasing the Elderly Inmate: A Solution to Prison Overcrowding, 4 ELDER L.J.
173, 196 (1996); California’s Aging Prisoner, supra note 1.
40
California’s Aging Prisoner, supra note 1, at 27 (statement of Jonathan Turley).
41
Kobrin, supra note 1.
42
Non-lifer applicants do not require the approval of the Board of Prison Terms. Id.
43
Id.

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who sought compassionate release, only sixteen received the required board
recommendations, and only ten were eventually released.44
c. Medical Reprieve Parole
Medical reprieve parole programs resemble compassionate release programs but
are not always limited to those who are terminally ill. For example, the Georgia
Department of Corrections has hired a full-time registered nurse to survey the state
looking for inmates that are candidates for medical reprieve parole. This nurse looks for
those prisoners who have high medical costs or who may have been admitted to prison
infirmaries multiple times but are unaware that they are eligible for medical parole. After
identifying such prisoners and determining whether they are low-risk, the nurse will
recommend medical reprieve parole. According to Bob Kissell, Director of Health
Services, using this more proactive approach has successfully resulted in an increase of
parolees. Because these prisoners typically cost the state more money than the average
prisoner, if the nurse finds even a single inmate that is eligible for medical reprieve
parole, the position has arguably paid for itself.45
In Maryland, medical parole is used to buffer costs. The Department of Public
Safety and Correctional Services requests medical parole for individuals who no longer
pose a threat to society and whose medical and physical care needs fit the medical parole
requirements.
The Texas version of this was just amended so that inmates with advanced
Hepatitis C and other serious medical problems now qualify for special needs parole.
These inmates are either released to a long-term care facility outside the prison, a halfway

44
45

Kobrin, supra note 1.
SHERRY AGNOS, SENATE OFFICE OF RESEARCH, TREATMENT OF ELDERLY INMATES 2 (2003).

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house, community residential facility, or to be cared for by a family member. They are
also required to wear electronic monitoring devices.46
d. Community Based Nursing Homes and Hospices
In combination with the three above-listed solutions for low-risk prisoners, the
development of community based nursing homes and hospices would aid in the care of
the elderly. The California Department of Corrections (CDC) staff recommends that
such community-based correctional nursing homes and hospices be placed near contract
hospitals and prison hospital facilities as CDC out-based units. These facilities would
provide secure basic care and assisted-living for selected inmates and parolees that pose
no serious risk to the community. They would be staffed with minimal correctional
officers, a Medical Technical Assistant, and a Certified Nursing Assistant. Physicians
from the nearest CDC prison facility would conduct regular sick-call rounds (much like
standard nursing homes and hospices). Anyone requiring routine or emergency hospital
admission would be handled through CDC contract arrangements.47
Currently, about half the states now offer hospice care within the prison for their
frailest inmates.48 Other organizations like the GRACE project and the National Prison
Hospice Association are working to create community-based hospice programs. The
ultimate goal of the GRACE Project is to achieve community hospice standards in end-of
life care for inmates.49

46

Id. at 4.
IMPACT OF AN AGING INMATE POPULATION, supra note 8, at G-4.
48
Patrik Jonsson, As Prisoners Age Should They Go Free?, CHRISTIAN SCIENCE MONITOR, Sept. 5, 2003, at
2.
49
Interview with Margaret Ratcliffe, Vice President of Services for Volunteers of America, available at
http://www.mrltc.com/interviews-margaret-ratclifffe.html (last visited Jan. 18, 2006)
47

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Some people may view the implementation of such programs as “criminal
welfare” or “convict Medi-Cal.” In order to combat this perception, it would be necessary
to conduct preparatory and ongoing education for people in the community.
C.

Solutions for Mid-Risk Prisoners
i.

Alternative Forms of Release

For those prisoners characterized as mid-risk,50 out-right early release may not be
appropriate option. Instead, other alternative forms of release are suggested. This would
include electronic bracelet programs, intense parole supervision, and home detention.
These types of programs could reduce costs from $70 a day, down to $8.51 Since many
of these prisoners are barely mobile, these are cost effective means of protecting the
public.
Historically, judges and probation officers have exhibited “a tendency to
disregard the older offender, not necessarily because . . . her crimes are not serious or
needs are not real, but simple because . . . she is older.”52 Increasing the number of older
offenders in the parole system will, therefore, challenge the Parole and Community
Services Division in the following ways:
•

Older parolees are less likely to have family support systems able to provide
housing and care.

•

Older parolees will have a harder time obtaining employment, which will
make self-support substantially more difficult. If a parolee does not qualify

50

POPS usually errs on the side of being conservative. As such, the prisoners that POPS considers mid-risk
prisoners would likely be viewed as low-risk by most states.
51
California’s Aging Prisoner, supra note 1, at 30 (statement of Jonathan Turley).
52
Belinda R. McCarthy & Robert H. Langworthy, Older Offenders on Probation and Parole, 13 J.
OFFENDER COUNSELING, SERVICES & REHABILITATION 1, 23 (1987).

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for Social Security, he will need to be set up for welfare, food stamps, and
feeding assistance systems.
•

Older parolees have an increased probability of having chronic illnesses that
require monitoring. Since most of these parolees will have no private
insurance, they will need to be set up to obtain and maintain Medi-Cal
coverage.

•

Older parolees are likely to experience difficulty in getting around. For
example, getting to and from medical appointments, picking up prescriptions,
getting to the welfare office, obtaining monthly food stamps, getting to the
parole office, etc. As such, these parolees may need to be set up with services
and organizations that provide transportation.

•

Older parolees may require additional health monitoring to avoid malnutrition
and dehydration that could lead to increased medical problems,
hospitalizations, or death.

•

Older parolees without families or community ties may die while on parole.
Parole Agents will need to acquaint themselves with funeral and burial
processes and be aware of living wills and “do not resuscitate” orders.

•

Older parolees may suffer from Alzheimer’s disease and other dementias.
Parole Agents will need to be trained specifically to deal with these types of
parolees.

•

Older parolees may willingly violate parole if they are unable to find adequate
and safe housing, lack access to medical care and socialization, or cannot take
care of themselves

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There are certainly ways to offset some of these problems. First, and foremost, Parole
Agents supervising older parolees must receive training in geriatrics, including a focus on
dealing with dementias. One author has suggested that a possible solution may be to
have a specialized Parole Agent who monitors all elderly offenders on probation within a
given jurisdiction.53 There are some problems with such a solution. Namely, providing
special training to a specific agent means the other probation officers will remain
ignorant on dealing with the problems of the elderly. Also, such a position may not be
justifiable in many communities because there may not be enough elderly criminals to
necessitate a full-time special Parole Agent.54
Parole Agents should be made aware of available community resources that focus
on caring for the elderly. Informational meetings used to educate probation officers as to
these services could mirror similar programs conducted for volunteer organizations
designed to help elderly crime victims.55 For example, one volunteer organization was
briefed by psychologists, geriatric specialists, business organizations, and other
professionals regarding the specialized needs of the elderly in a forty-hour program.
These volunteers were also given a directory of relevant local social service agencies,
including, “hospital emergency rooms, the domestic violence safehouse, the local social
security office, crisis hotlines, local senior assistance agencies, the State’s department of
social services, and many others.”56 Parole Agents could benefit from similar training.

53

Lyle B. Brown, The Joint Effort to Supervise and Treat Elderly Offenders: A New Solution to a Current
Corrections Problem, 59 OHIO ST. L.J 259, 279 (1998).
54
Id. at 279-80.
55
See Lynne Bliss, Police Practice: Assisting Senior Victims, F.B.I. L. ENFORCEMENT BULL., Feb.-Mar.
1996, at 6-7.
56
Id. at 7.

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Parole decisions may need to begin factoring in where an older parolee’s needs
can be met, which may mean they are ultimately paroled in a different location than
normal.57
Finally, one author suggests a unique solution called Joint Effort which is meant
to bridge the gap between current programs and an elderly offender’s needs. Although it
is outside the scope of this paper to discuss this program in detail, Joint Effort is
comprised of three basic stages. The first stage encourages police officers and courts to
take initiative in admitting elderly offenders into the program. The second stage calls for
revised risk-need assessments conducted by medical, psychological, and correctional
professionals. The third stage combines the supervisory function of probation with the
service-oriented, individualized attention found in diversion programs.58 The main idea
behind this program would be to encourage agency cooperation between health care
providers, counselors, and volunteer coordinators to help monitor such lower-risk
offenders and thus provide more adequately for their needs, while at the same time
freeing probation officers to deal with higher priority probationers.59
D.

Solutions for High-Risk Prisoners
i.

Geriatric units

Release in any form is obviously inappropriate for high-risk offenders. For this
category of prisoners, reform is still needed. So far, Florida, Georgia, Illinois, Indiana,
Minnesota, Mississippi, North Carolina, Ohio, South Carolina, Texas, and Wyoming
have dealt with this category of offenders by creating special geriatric units. Other states,
such as Arkansas, Kentucky, Louisiana, Maryland, Missouri, New Jersey, Tennessee,
57

IMPACT OF AN AGING INMATE POPULATION, supra note 8, at E-1, E-2.
Brown, supra note 53, at 287-88.
59
Id.
58

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Virginia, Washington, West Virginia, and Wisconsin, don’t have specific “geriatric”
policies or facilities, but have “chronically infirm” or “chronic disease” beds that can
house older offenders or are currently in the process of designing and building separate
geriatric facilities.
Mississippi has a geriatric facility that is modeled after typical nursing homes and
offers twenty-four hour nursing assistance and provides a case manager to work with the
inmates.60
Federal geriatric facilities have also surfaced such as one in Fort Worth, Texas
that specifically addresses the mobility and sanitation concerns of the elderly.61 Like
many state facilities, admission to such federal facilities is limited based on security
classification and need—not every inmate that would benefit from such treatment will
qualify for transfer to such a facility.
The benefits of separate geriatric facilities are many. First, some studies reveal
that older prisoners prefer segregation from the general population for reasons of safety
and improved care.62 Being with fellow elderly prisoners could enhance self-respect and
reduce loneliness by increasing social interaction. Segregating older prisoners from the
younger, more violent prisoners would mean that, at minimum, fewer elderly prisoners
would suffer from the stress-related illnesses that accompany living in such an
environment.

60

Ronald H. Aday, GoldenYears Behind Bars: Special Programs and Facilities for Elderly Inmates , FED.
PROBATION, June 1994, at 49.
61
Peter C. Kratcoski & George A. Pownall, Federal Bureau of Prisons Programming for Older Inmates,
FED. PROBATION, June 1989, at 33-34.
62
Michael Vitiello & Clark Kelso, A Proposal for a Wholesale Reform of California’s Sentencing Practice
and Policy, 38 LOY. OF L.A. L. REV. 101 (2004).

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Second, there are significant cost savings that could result from the consolidation
of needed special services. For example, transferring older prisoners to a facility that is
conducive to those using wheelchairs or walkers would mean that not all prisons need to
be made wheelchair friendly. It is unclear whether it will be more expensive to build
separate geriatric facilities than to modify every single prison to be elderly friendly, but it
is important to realize that the savings don’t come from mere construction costs, but from
other areas, as discussed below.
There would be vast savings in terms of security costs. As Jonathan Turley says
of these prisoners:
[T]he good thing about geriatric units is that most of these geriatrics who
are high-risk are not high-risk for escape. They may be high-risk for
embezzlement because they went in at 56 and you can hardly say at 60, is a
new man. So the prisoner is going to have to stay in, but it does not make
him a high-risk for escape, which means you can use a higher percentage of
minimum security facilities which dramatically reduce your costs because
of guard costs.63
This would also result in reducing medical transportation costs. Most prisons
currently transport people out of the prison for most medical purposes. This becomes an
expensive proposition when you realize that each prisoner must be accompanied by
correctional officers for custody and security purposes. To the extent these services can
be consolidated into one facility, the reduction in transportation costs would be
considerable.64 Pennsylvania has built a state-of-the-art geriatric care facility for its
infirm prisoners.65 North Carolina converted an old tuberculosis hospital into a facility
that caters to inmates with special medical needs, such as older offenders. This facility
reduces the cost of incarceration by localizing healthcare, protecting inmates from
63

California’s Aging Prisoner, supra note 1, at 52 (statement of Jonathan Turley).
Id. at 35 (statement of Senator Presley).
65
Jonsson, supra note 48.
64

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victimization, and reducing the number of required security personnel.66 In Virginia, the
creation of a separate facility to tailor to the needs of the elderly and terminally ill has
produced significant cost savings. Although the exact amount of savings is unavailable,
the average per capita operating cost at this geriatric facility is $22,299—only slightly
higher than the average of $21,079 at all other Virginia facilities.67 In fact, of the twentysix correctional facilities in Virginia, the new geriatric facility has one of the lowest
overall medical expense budgets.68
Third, training a small staff of doctors and nurses to be specialists in elderly care
could aid in implementation of preventative monitoring systems, discussed in more detail
below, to prevent minor illnesses from becoming chronic and expensive disorders. In a
1991 study of thirty-nine states, only six states reported having specialized training for
staff working with older inmates.69 More current data is not readily available on this
issue.
Other good news is that there are plenty of buildings that can easily be converted
at low cost. For example, some states are converting old TB hospitals and other
structures into minimum security prisons for low mobility inmates.
There are some arguments against housing elderly prisoners in segregated
geriatric facilities. For example, it may be harder to find appropriate work assignments
and programs on this scale. On the other hand, housing the elderly all together may make
it easier to develop programs specifically tailored for the needs of the elderly. For

66

Nadine Curran, Blue Hairs in the Bighouse: The Rise in the Elderly Inmate Population, Its Effect on the
Overcrowding Dilemma, and Solutions to Correct It, 26 New Eng. JCCC 225, 262 (2000).
67
AGNOS, supra note 45, at 5.
68
Id.
69
MORTON, supra note 9, at 5.

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example, in Georgia, the geriatric institution has special programs just for the elderly,
such as gardening, special exercise classes, and access to talking books.70
A number of prison officials maintain that having older prisoners spread
throughout the prisons counters the aggression of younger inmates by creating a calming
effect. On the other hand, elderly inmates may be too weak and passive to command the
respect necessary to influence the behavior of younger prisoners or to protect themselves
against violence.
A more salient concern with consolidating elderly prisoners into geriatric units is
that it may place them at a greater distance from their family. Prisoners do better when
they have access to family, but this is especially true of older prisoners who have a higher
incidence of depression when removed from their families.71
E.

Solutions Across Risk Groups
i.

Preventative Monitoring Systems

A simple way to begin reform for all prisoners would be to implement procedures
and plans for preventative care. The idea behind this is that if you do a better job of
treating prisoners initially, there will be a decrease in health care costs later in life. As
Richard Aday posits that, “The most immediate step is to increase preventive care and
educate prisoners to eat better, exercise and monitor their own health. It’s important that
they receive the necessary medical treatment, whether it be special meals or proper
cancer screenings.”72
Such systems would require that a prisoner undergo a thorough head-to-toe
examination upon entering prison. This includes checking their vision, hearing, thyroid,
70

IMPACT OF AN AGING INMATE POPULATION, supra note 8, at 15.
California’s Aging Prisoner, supra note 1, at 30 (statement of Jonathan Turley).
72
Pfeffer, supra note 14, at 4.
71

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heart, lungs, etc., and making an assessment of the overall functional status of the
prisoner (e.g. Is the prisoner able to perform the activities of daily living?). After
discovering whether the prisoner has had preventative services in the past, what
medications he or she has taken, any previous hospitalizations, etc., it is important to
determine a treatment plan that takes into consideration “housing needs, adaptive devices,
any kind of medications, and any other sorts of services and whether they need to be
enrolled in the chronic care program.”73
California actually instituted a chronic care delivery system a few years ago on a
seven-year rollout plan.74 The goal of this system is to set up procedures and protocols,
no matter a prisoner’s age, that will start when a prisoner enters the system and follow
them throughout. As Michael Pickett, Deputy Director for Health Care Services for the
Department of Corrections explains, “If there are specific needs, be they aged or for some
other chronic medical problem, or psychiatric problem, we then place the inmate within
one of the 33 prisons we have commensurate with what that need is where we can best
provide the service, be it medical or psychiatric.”75 The chronic care program currently
has eight different clinics: diabetes, hypertension and other cardiovascular conditions,
asthma, emphysema and other lung conditions, HIV, gynecology, tuberculosis, and
general medicine.76
Other states, such as Ohio, have begun implementing preventative care programs
by creating created fitness-in-prison programs for older inmates.77
ii.

Inmates taking care of Inmates

73

California’s Aging Prisoner, supra note 1, at 50 (statement of Dr. Renee Kanan).
Id. at 36 (statement of Michael Pickett).
75
Id. at 37 (statement of Michael Pickett).
76
Id. at 50-51 (statement of Dr. Renee Kanan).
77
Jonsson, supra note 48, at 2.
74

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Many states have begun using younger inmates to provide the necessary work
force in their geriatric prisons. Louisiana and Oregon are some of the first states to begin
training inmates to deal specifically with elderly prisoners. Jonathan Turley has said of
this approach: “There are issues of confidentiality and there’s only so much you can do,
but states like Louisiana and other states actually do train their inmates to deal [with] the
rudimentary issues. And generally, those don’t violate privacy laws.”78 The other
positive aspect of this burgeoning area is that if you have an inmate go through a nurse
certification program to help deal with the elderly, he is also obtaining a useful form of
job training. This results in a reduction of costs at the same time it teaches a useful skill
for future use.
iii.

Reform of Sentencing Laws

Although this topic is outside the scope of this paper, it is important to note that in
the long run, the only real way to stop the rapid increase in the aging prison population is
to reinstate softer sentencing laws and restore sentencing discretion to the judges.79
California would do well to follow in the footsteps of states like Virginia. When
Virginia recently eliminated parole, it allowed one loophole. Inmates sixty years old or
older who have served at least ten years of their sentence, or those sixty-five years old or
older who have served at least five years, may seek geriatric release.80
North Carolina created a sentencing commission in 1990 that has been making
successful recommendations to the legislature.81 One of its main changes was to vastly
increase the use of intermediate punishment programs—community punishment at a level

78

California’s Aging Prisoner, supra note 1, at 53 (statement of Professor Turley).
Pfeffer, supra note 14, at 4.
80
Older inmates: Making Some Dollars and Sense, IOWA CITY PRESS-CITIZEN, Oct. 4, 2004, at 1.
81
Vitiello & Kelso, supra note 62, at 960-61.
79

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of intensity that exceeds traditional probation. After implementation of the guidelines,
intermediate punishment increased by fifty percent.82 This serves to free up significant
prison space for more violent and serious offenders. California might want to consider
examining North Carolina’s scheme and planning a trial run for a similar program.
The next section will discuss methods and barriers to implementing the above
programs.
Part III: Solutions For California
The plight of the elderly in the increasingly overpopulated prisons of California
can no longer be ignored. There are many alternatives, suggested by well-known
gerontologists, researchers, professors, and sociologists. To ignore the suggestions of
these experts is expensive, foolish, and arguably, inhumane. Not to mention that the
more money we sink into the prison system, the less money we have for other services.
As Senator Gloria Romero, chairwoman of a select committee overseeing the correctional
system has said, “We are locking up the elderly at the expense of building schools for
students and keeping university fees down, and we can’t pretend that it’s not
happening.”83
There are a number of solutions listed above that would be easily implemented in
California allowing the state to save millions of dollars. The most important of these
would be bringing Jonathan Turley’s POPS to California.
A. Bringing POPS in California

82
83

Vitiello & Kelso, supra note 62, at 962.
Kobrin, supra note 1.

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Given the expense associated with keeping the elderly incarcerated, the release of
non-violent, non-serious elderly offenders in California could result in an estimated
budget savings of anywhere from nine million84 to twenty million dollars.85
When Senator Vasconcellos asked Professor Turley at the Senate Subcommittee
Hearing on Aging and Long Term Care what it would take to get California involved in
POPS, Jonathan Turley replied:
Basically, if you want a POPS office, the two things you have to do is that
the executive and legislative components have to essentially say, yes, we
want to participate. It’s really of no risk to the state. . . it doesn’t cost really
anything except maybe some rudimentary costs. And then you just have to
give access in the sense that you don’t have POPS go through the usual
attorney/client interview system. [T]he prisoners are simply told that there
is a POPS pilot program . . . and usually access to prison jackets can be
done with an approval of the prisoner.86
Because California has so many law schools, it is in a great position to take advantage of
POPS. Jonathan Turley would provide everything California would need to get a POPS
program going: computer data, forms, training. He is careful to make sure law students
realize they are not prisoner advocates, but rather public advocates. Their job is to work
as a liaison between the inmates, the correctional system, and the state.87 More
importantly, their job is to get their evaluations right. Once law students working as
caseworkers compile enough data on a given prisoner, they bring their findings to the
POPS board and then to the state parole board. At that point, it’s obviously up to the
state to trust the data or to ask for whatever else they need.
There are some caveats to the early release solution. First, some of the money
saved on early release will need to be used to implement and maintain post-release plans.
84

California’s Aging Prisoner, supra note 1, at 7 (statement of Stan Neal).
Id. at 28 (statement of Jonathan Turley).
86
Id. at 54 (statement of Jonathan Turley).
87
Id.
85

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POPS has been successful in large part because of its focus on a soft landing. If money is
not invested in post-release plans you create a situation where some elderly will reoffend
to be placed back in the security of the prison setting.
Second, many people zealously oppose the release of prisoners, no matter their
age. Therefore, it is vitally important to educate California citizens about programs such
as POPS that only work with non-violent, non-serious offenders. Californians must be
educated about how much money they could save that could go into other programs
within the state.
It is also important to note that although POPS should certainly be initiated in
California, and early release made a vital part of reform for elderly prisoners, it should
not be the only solution. Jonathan Turley has said:
[I]f you just do early release, you’re going to have that problem that they
describe in the military, that if you only have a hammer, everything looks
like a nail. So if you only have release, everything gets put into terms of
can we release them, that’s a dangerous thing because if that’s your only
valve, you’re going to release people that you shouldn’t release.88
But, if done correctly, early release will not only save California money but it will also
alleviate overcrowding. By identifying low-risk candidates for parole, California can
“open up thousands of cells while actually lowering the risk currently imposed on society
by unguided court-ordered releases.”89
B. Expansion of Compassionate Release Program
In 2004, legislators attempted to modify the compassionate release program by
extending the period of release from six months to a year, and extending the rights to

88
89

California’s Aging Prisoner, supra note 1, at 26-27 (statement of Jonathan Turley).
Ornduff, supra note 39, at 197.

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permanently incapacitated prisoners (e.g. quadriplegic prisoners).90 The new bill would
also have required that families and dying prisoners be notified of their rights to early
release. Alice do Valle, the campaign coordinator for Justice Now, estimates that making
compassionate release more readily available could result in a savings of $52 million
over the next ten years.91 Unfortunately, Governor Schwarzenegger ultimately vetoed
the bill arguing that the legislation lacked “any mechanism to return these prisoners to
custody” if they either recovered or later posed a threat to public safety.92
Because making this program more accessible and easier to navigate would be a
useful reform, this bill should be reintroduced in California, modified to address
Governor Schwarzenegger’s concerns.
C. Separate Geriatric Facilities in California
Even with implementation of early release programs and expansion of
compassionate release, California will still face problems with how to deal with the
remainder of the elderly prison population. The creation of separate geriatric facilities, as
many other states have done, is a vital step.
In order to avoid placing prisoners in prisons too far from their families, Jonathan
Turley proposes California create a “series of smaller [geriatric facilities] between 3- and
500 units preferably, that will put them in rough geographic proximity to their
families.”93 Former Secretary of the California Youth & Adult Correctional Agency,

90

Assembly Bill 1946 (2004).
Jeff Gillenkirk, Compassionate Release Could Save Lives, Money, ACLU NEWS, Spring 2004, at 4.
92
Kobrin, supra note 1.
93
California’s Aging Prisoner, supra note 1, at 31 (statement of Jonathan Turley).
91

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Robert Presley, has suggested placing a geriatric prison at San Luis Obispo because there
is already a 100-bed hospital there.94
California has recently closed some of its CYA prisons. These facilities could be
converted to low-security housing for elderly prisoners. Another idea would be to utilize
civic commitment centers. Either way, California will be wise to begin planning ahead
for its burgeoning elderly population.
D.

Solutions for Elderly Women Prisoners
As mentioned in the previous section, most states have thus far failed to

implement reform for elderly women prisoners. The two exceptions to this are the State
Park Correctional Center in South Carolina which provides for elderly male and female
inmates95 and the Florida Department of Corrections that has a special unit for older
female offenders. Overall, however, the failure to provide specific solutions for elderly
women prisoners is an unfortunate omission. Gloria Killian has said of female prisoners:
Eighty percent of all female inmates have been abused either physically,
sexually, or emotionally, during their lives. And when you combine that
factor with the horrific stress of long-term incarceration, you have physical
manifestation of chronic illness by a minimum of age 40. . .96
Elderly women inmates will be in one of three stages of menopause: perimenopause,
menopause, or postmenopause. Most women in the perimenopausal or menopausal
phases will require more frequent access to bathroom facilities and feminine products.
They may need their clothing and linens changed more frequently and need increased
medical monitoring and hormone replacement therapy. Older female inmates will also
be at higher risk of contracting cancers of the breast, ovaries, uterus, or cervix, in

94

California’s Aging Prisoner, supra note 1, at 35 (statement of Robert Presley).
Aday, supra note 60, at 49.
96
California’s Aging Prisoner, supra note 1, at 58 (statement of Gloria Killian).
95

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addition to other common cancers. In order to screen for this increased cancer risk, these
women will require more frequent mammograms and gynecological exams.97
Many of the problems unique to women can be solved by making sure medical
staff are qualified to deal with the unique needs of each individual woman. They will
benefit from all the above listed programs that so far have only been tailored for men,
including early release, hospice care, and placement in geriatric prisons.
Conclusion
California’s prisons will come to resemble high-security nursing homes as the
elderly prison population continues to expand. It is vital that California take steps now to
create separate geriatric facilities, modify its compassionate release program, implement
early release programs, and more, if it wants to avoid the overburdening of its prison
system. Luckily, California has the benefit of observing other state’s pioneering efforts.
It would be wise to consider and implement some of these reforms.

97

IMPACT OF AN AGING INMATE POPULATION, supra note 8, at 6.

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