Justice CommitteeWritten submission from Jen Geary, Dr., LLB

Executive Summary

This submission is linked to the treatment of older prisoners and equality and human rights legislation. Currently University based research is being conducted between researchers in Australia and Canada. This research is concerned with understanding the needs and service responses of older people in prison. The participation of professionals from Western nations including those linked to prison, parole, psychology, social work, the clergy, counseling and law are currently being sought for the purposes of this research. The objectives of this research are to:

generate new knowledge about the needs and situations of older prisoners to devise means to enhance their well-being whilst developing the public safety.

expand on existing literature, for example, Aday (2003), Human Rights Watch (2012), Mann (2012), Wahidin (2004).

give information about the legal, pragmatic and ethical challenges faced by corrections professionals who work with or are involved with older prisoners.

provide recommendations to guide corrections professionals in their efforts to meet the legal, treatment, rehabilitative and reintegration needs of older prisoners.

Introduction

1. Older inmates have been identified as the fastest growing segment of federal and state prisons (Abner, 2006), and the costs of incarcerating older prisoners are estimated to be triple that of younger inmates. The American Civil Liberties Union (2012) have argued that “a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes” (p. i) and it has been suggested that “failure to begin addressing the problems and costs associated with older inmates may lead to a corrections crisis similar in proportion to that of the early nineteen nineties concerning the availability of inmate beds” (Florida House of Representatives Criminal Justice and Corrections Council Committee on Corrections, 1999).

2. The research adopts a human rights perspective. An object of the Victorian Charter is to safeguard and to develop human rights by understanding that all people are “free and equal in dignity and rights” (Department of Education and Early Childhood Development, 2012). The Charter may lessen incidents of inequalities and promote equal opportunities (Department of Education and Early Childhood Development, 2012). When the State is making decisions it should not do so in a way that offends the Charter [Charter of Human Rights and Responsibilities Act 2006 (Vic)]. The Charter can develop dignity and equality of, for example, disadvantaged and vulnerable individuals.

3. Older prisoners are widely considered to be particularly vulnerable and at risk of victimisation in institutional settings (Abner, 2006; American Civil Liberties Union, 2012; HM Chief Inspector of Prisons, 2004; Human Rights Watch, 2012; Passau, 2008). Human Rights Watch (2012) attests “While human rights law does not preclude imprisonment of older offenders, the incarceration of the elderly nonetheless raises two major human rights concerns” (p. 87). The first is whether or not the imprisonment has conditions that are in keeping with human rights requisites; the second is whether or not the conditions are proportionate or inhumane. According to the Equality and Human Rights Commission (2009) a human rights approach can deliver “real improvements and drive systemic change in public services” (s. 10); with others observing that the approach may assist in the development of quality and consistency in service provision (eg, Crook, 2001).

4. This research seeks to explore human rights issues as understood by correctional professionals (prison officers, parole officers and Board members, psychologists, social workers, the clergy, counsellors and lawyers). These may be linked, for example, to the safety, dignity, education, privacy and well-being of older prisoners. Safety can be an issue for older prisoners who seek to resist bulling or violence by younger prisoners (Cruise, 2012, p. 3; Davies, 2011, p. 6).

5. The underlying objectives of this research are to generate new knowledge about the needs and situations of older prisoners, understand more about the legal, pragmatic and ethical challenges that are faced by correctional professionals who work with or are involved with older prisoners, and to provide recommendations that can guide correctional professionals in their efforts to meet the legal, treatment, rehabilitative and reintegration needs of older prisoners. There are three research questions:

1.How can correctional professionals address the needs and rights of older prisoners? These needs include:

emotional,

physical and

social.

Examples of correctional professionals include prison officers, parole officers and Board members, psychologists, social workers, the clergy, counsellors and lawyers.

2.How do correctional professionals understand the rights and needs of older prisoners?

3.How do correctional professionals who have had contact with older prisoners, understand their role with these prisoners?

Definition and Numbers of Older Prisoners

6. A starting point for this research is to understand how older prisoners are defined, and consider how many prisoners might be labelled as elderly under these definitions. In the United States and Australia, for example, individuals over the age of 50 may be considered to be “older” (American Civil Liberties Union, 2012; Grant, 1999), although considerable differences exist between jurisdictions in both policy and practice. For example, Gubler and Petersilia (2006) refer to prisoners over the age of fifty-five as being older. In Canada, inmates who range from fifty to sixty four years may be labelled as being older. In the United Kingdom, prisoners who range from sixty to sixty five years are often classified as being older (see United Nations Office on Drugs and Crime, 2009).

7. What is clear is that the number of older prisoners is increasing in most western jurisdictions (Collins & Bird, 2006; Correctional Service of Canada, 2009; Grant, 1999; United Nations Office on Drugs and Crime, 2009). Abner (2006), for example, has observed that “some estimates suggest that the elder prisoner population has grown by as much as 750 percent in the last two decades” (p.8–9). During the period from 2007 to 2010, “the number of sentenced state and federal prisoners age 65 or older [in the US] increased by 63%” (Human Rights Watch, 2012, p. 6). As Howse (2002) notes: “the majority of prisons (90%) have at least one prisoner of pensionable age, though in most cases the numbers are small—between one and five prisoners” (p. 45).

8. The apparent rise in the number of older prisoners is thought to be a result of individuals tending to live longer and thus having more opportunities to commit crime. It may also be because more offenders are being imprisoned and the mechanisms for early release are less available than they were previously (Human Rights Watch, 2012, 25). Retributionist laws, for example, three strikes legislation may also contribute to the influx of older prisoners (Abner, 2006, American Civil Liberties Union, 2012; Human Rights Watch, 2012; United Nations Office on Drugs and Crime, 2009; Williams, McGuire, Lindsay, Baillargeon, Cenzer, Lee & Kushel, 2010).

Groupings of Older Prisoners

9. Although older prisoners share common concerns and interests with other prisoners including, but not limited to “racial, ethnic, geographic, governmental, regional, social, cultural, partisan, or historic interests; county, municipal, or voting precinct boundaries; and commonality of communications” (Alabama State Legislature, 2011), they do have distinctive needs. It has been suggested, for example, that the loss of social relationships including through the death of family members and associates also takes a toll upon the mental health of some older prisoners. According to Murdoch, Morris and Holmes (2008) one of the most profound negative effects of prison on older prisoners is depression.

10. Needs may, nonetheless, vary between groupings of older prisoners who committed offences at different ages (Tomar, Treasaden & Shah, 2005). For example, those who committed violent crimes at a young age and who have been incarcerated for a lengthy period of time often struggle to preserve and develop social and work-related links. Another example is chronic, or repeat, offenders who have been repeatedly imprisoned throughout their lives and have diminished communal and work-related supports. Finally, those who have been found culpable of having committed offences, including sex crimes, later in life. The American Civil Liberties Union (2012) identify four groupings of older prisoners:

1.those who were first imprisoned when they reached 50 or older for such crimes as homicide and sex-related crimes.

2.those who were first imprisoned before they reached the age of 50 and have remained in prison for 20 years for offences such as petty crimes or drugs.

3.chronic offenders who have served manifold periods of imprisonment and who were imprisoned under the age of 50 for offences including unlawful entry into premises, robbery or drugs.

4.those who were imprisoned for a sole offence prior to the age of 50 and who have not yet served 20 unbroken years for an offence including unlawful entry into premises, robbery or drugs.

Human Rights

11. In this research, particular attention is given to those aspects of human rights that are linked to dignity, privacy, education and equality (Manitoba Law Reform Commission, 1999; Madrid International Plan of Action on Ageing, 2002). These provide a useful lens through which to view the current way in which services respond to the needs of older prisoners. For example, Principle 12 of the United Nations Principles for Older Persons (1991) recognises the rights of older persons to be autonomous, and members of staff are responsible not to act in an arbitrary manner and to respect the autonomy of prisoners (Human Rights Watch, 2012, p. 62). Thus, at all times correctional professionals and prisoners should be treated with respect for their personhood (Human Rights Watch, 2012; United Nations Office on Drugs and Crime, 2009).

12. There are, of course, competing rights including those linked to individual and community rights. There are tensions between the rights of the community to be protected and personal ones (HM Chief Inspector of Prisons, 2004; Vess, 2010). The risk to the public in releasing some older prisoners may, however, be negligible. In their 2012 report, The American Civil Liberties Union recommend the use of conditional release for older prisoners who constitute minimum risk to the public, including the use of what has been termed “medical parole” for those who may not be expected to live longer than twelve weeks (HM Chief Inspector of Prisons, 2004).

Dignity and Privacy

13. The dignity of older persons may be negatively impacted in prison (Strupp & Wilmott, 2005, p. 56). Respect for the inherent dignity and privacy of persons are key human rights principles (Article 8 of the European Convention on Human Rights, 1950; United Nations Principles for Older Persons, Principle 17; United Nations Office on Drugs and Crime, 2009). Older prisoners may not always enjoy the benefits of these rights. For example, prisoners who age in institutional care are likely to lose privacy.

Social and Political Liberties

14. The right to education is recognised by the United Nations (Basic Principles for the Treatment of Prisoners UN Doc A/RES/45/111 (1990) s 6; Office of the High Commissioner for Human Rights, 2009, [4]-[6]). The United Nations Office on Drugs and Crime (2009) has suggested that “staff bias against the participation of older prisoners in prisoner programs has been noted in some research… …factors that are associated with this bias include misconceptions that older prisoners are not likely to progress and resources to assist them are likely to be wasted” (p.125). On release in the community the educational and employment prospects of success are limited. Older prisoners may be too sick or disabled to find gainful employment or may not be eligible for work-related assistance because they have inadequate employment histories. Statistics suggest that “75% of ageing parolees will not have a high school diploma upon release and that 100% of ageing parolees will be unemployed due to illness (65%) or lack of work (35%)” (American Civil Liberties Union, 2012, p. xv).

Equality

15. Often human rights are linked to equality. Ward and Birgden (2007) refer to “equality before the law, and freedom from discrimination on the grounds of religion, gender, disability, or some other feature considered to be irrelevant for the ascription of individuals’ moral status” (p. 631). Each individual without being subject to discriminatory practices should enjoy liberty, security of person, confidentiality, a satisfactory living standard, health maintenance and instruction (Council on Social Work Education, 2008, s 2.1.5). Both older and younger prisoners should enjoy security of person. The State has a duty of care to safeguard older prisoners from attacks from younger prisoners (Abner, 2006; Human Rights Watch, 2012; United Nations Office on Drugs and Crime, 2009). Older prisoners may not have the physical, cognitive and emotional strength to defend them against bullying and could be victimised by younger and other prisoners and staff (Human Rights Watch, 2012). Care also needs to be taken in the allocation of older prisoners to provide for their safety (United Nations Office on Drugs and Crime, 2009; Wilson, 2005). For example, older prisoners may become isolated, be unable to contact staff through a call system in their cells or hear staff call their names (HM Chief Inspector of Prisons, 2004). Adequate clothing should also be provided to give opportunities for older prisoners to participate in exercise programs (HM Chief Inspector of Prisons, 2004).

Safety and Wellbeing.

16. Broadly human rights include the right to life, not to be subject to violence, torture, degrading or discriminatory treatment (Brooke, 2001; Human Rights Watch, 2012; Kindred Saunders, Brunnee, Currie, McDorman, deMestral, Mickelson, Provost, Reif, Toope, & Williams, 2006; Singh, 2001; United Nations Office on Drugs and Crime, 2009). Prisoners, staff and the public have the right to be safe (HM Inspectorate of Prisons, 2004; Human Rights Watch, 2012; Scott & Ward, 2001; United Nations Office on Drugs and Crime, 2009; Wilson, 2005).

17. In conclusion, in this submission rights including dignity and privacy, social and political liberties linked to older prisoners have been outlined. This submission is an excerpt from University based research that joins researchers in Australia and Canada.

February 2013

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Prepared 11th September 2013