CREATORS: Jails and Prisons Responsible for Brunt of Mental Health Care

Matthew T. Mangino
CREATORS
September 9, 2025

Milton Dusky was 33 years old and suffering from Schizophrenia. He was experiencing visual hallucinations, depression and alcoholism. He was under the influence of alcohol and drugs when he accompanied two teenage boys across state lines and raped a young girl.

He was arrested and charged with a federal crime. He had an evaluation that found he was "oriented to time, place, and person," and competent to stand trial. In 1958, he was convicted and appealed.

In 1960, Dusky's case made it to the U.S. Supreme Court. The High Court made a significant ruling regarding competency to stand trial. The court moved away from an analysis that considered whether an accused is "oriented to time and place and (has) some recollection of events" to a finding that an accused has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceeding against him."

Competency is often confused with insanity. Competency is a determination of whether an accused can be tried for a crime. Insanity is a determination of whether an accused is responsible for a crime.

The M'Naghten Rule is the legal standard to determine a defendant's legal insanity and criminal responsibility at the time an offense was committed. It is not a clinical assessment of a person's basic awareness. It asks two central questions, based on the defendant's mental state at the time of the crime:

— Did the defendant know the nature and quality of the act they were doing?

— If they did, did they know that what they were doing was wrong?

Although the standards for competency and insanity are different, the impact on the accused can often be very similar and equally troubling. The Marshall Project recently examined what happens to an accused who is suspected of being incompetent. Some people can languish in jail for months and months waiting for a competency evaluation.

As The Marshall Project pointed out, "In the most severe cases, a court can issue a permanent finding of incompetence. Numerous states have long backlogs of criminal defendants waiting for 'competency restoration' before they can be tried in court."

Competency restoration is a term of art in the criminal justice system. An accused who is deemed incompetent is entitled to treatment that can stabilize the individual and enable that person, with medication and therapy, to aid in their defense and stand trial. Ideally, the treatment is provided at a forensic hospital. Unfortunately, those beds are scarce in most states, and individuals suffering from mental illness stay in jail until a bed is available.

One of the states with a waitlist for competency restoration is Pennsylvania. According to an investigation by Spotlight PA, "The (Pennsylvania) Department of Corrections and county jails have unintentionally become the largest providers of behavioral health services in the Commonwealth and are not sufficiently prepared and resourced to meet this population's needs."

To back up the findings, Spotlight PA teamed up with PrimeCare, a private contractor that provides healthcare to 37 jails across Pennsylvania, and the Lehigh Valley Justice Institute to review 10 years of mental healthcare data.

An analysis found that more than 60% of inmates screened for mental health problems needed services while incarcerated.

The nationwide shift away from civil commitment treatment beds toward forensic treatment is a huge part of the problem, Jerri Clark, a research and advocacy manager for the Treatment Advocacy Center, told The Marshal Project. "Punishment is never going to magically create insight for someone who is deeply unwell," Clark said. "You cannot punish someone out of their delusional thinking."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino 

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American prisons are fast becoming the world’s worst nursing homes

 German Lopez writing in The New York Times:

American prisons are fast becoming the world’s worst nursing homes, increasingly filled with aging criminals who can barely walk, let alone commit another crime. The idea that we should lock up people for life, even through old age, is often framed as being tough on crime. In reality, it gives years, if not decades, of shelter, food and health care to convicted criminals and redirects money from programs we know do a better job of protecting the public.

Older people are much less likely to commit crime than the young. They are also much more expensive to lock up. Federal prisons with the largest share of older prisoners spend five times as much per person on medical care and 14 times as much on medications as other facilities, according to the Sentencing Project, a nonprofit advocacy group.

States and counties, which oversee a vast majority of people in prison, cannot run deficits for long or print money, as the federal government can. Every buck that pays for one thing means a dollar less for another. Funds spent on locking up an old inmate could have helped pay for more police officers or other anti-crime initiatives or schools or roads or any of the myriad other demands on local governments.

I have reported on criminal justice issues for more than a decade. If I have learned anything, it’s that crime policy is all about trade-offs, more so than in most other areas. Releasing more old people from prison, however, is close to a free lunch. Not only could it save money, but if the savings are wisely reinvested, it also could improve public safety.

America is heading in the opposite direction. Over the past three decades, the share of prisoners who are 55 or older has multiplied fivefold. Two trends have accelerated the phenomenon: First, young people are committing far less crime, so they are less likely to fill up prisons. Second, tough-on-crime trends led to more life sentences and other long prison penalties, and time is now taking its toll.

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The age-crime curve is the least-appreciated fact of criminal justice. If you chart a man’s likelihood to commit crime over his life, the line will hover near zero until he reaches his teens. Then his chance of committing a crime spikes, almost vertically, over the next decade. Nothing is more dangerous, in terms of crime, than a young man in his late teens or early 20s. But starting around his mid-20s, the line starts to drop. This continues for the rest of a typical man’s life. By the time he’s in his 50s, he is less likely to commit crime than he was as a young teenager.

Those trends are true for the general public. Do they apply to convicted criminals? Yes. One federal study tracked prison inmates after their release in 34 states. Nearly 57 percent of ex-inmates 24 or younger ended up back in prison within five years. Fewer than 15 percent of those 65 or older did. In other words, a vast majority of older inmates don’t reoffend.

On some level, we all recognize this. We know the brain doesn’t finish developing until a person’s mid-20s. Physicality matters, too. As a teenager, I could fall out of a tree, get back up and sprint after my friends without feeling a thing. Now, in my mid-30s, I feel my back hurting for days if I make a wrong turn picking up my cat. Crime follows the same facts of life. The kind of poor judgment that leads someone to commit more crime is more common among the young, and so is the physical ability to make good on that poor judgment.

Outliers do exist. But a vast majority of killers are not serial killers, and a vast majority of criminals are not lifelong offenders. Many criminals, maybe even most, committed a crime under the particular circumstances of their age and the moment. Keeping criminals locked up when they’re young absolutely can stop crime. Older inmates, however, pose little threat to the rest of us.

Supporters of the status quo raise two counterarguments: First, people who commit heinous crimes deserve to remain in prison, no matter their age, to demonstrate society’s moral condemnation. Second, long prison sentences, including those that last through old age and death, are good because they deter others from committing crimes.

The first counterargument is about values. I would argue that criminal justice policies should prioritize protecting the public over retribution. We don’t need to turn prisons into nursing homes to show our disapproval of a crime; decades-long prison sentences do a good enough job. But reasonable people can disagree.

The second counterargument, however, is simply wrong. A thorough review of the research found that longer prison sentences’ deterrence effect is “mild or zero.” As part of his analysis, the researcher, David Roodman, tried to replicate prominent studies that claimed evidence of long sentences deterring criminals. He found they contained serious problems that skewed their conclusions. All told, threatening to lock up people until their late 50s, 60s and beyond does little for public safety.

Lawmakers should address this problem with available policies: Governors should issue pardons for older inmates. Parole boards should put more weight on age. Officials should more aggressively use compassionate release laws that on a limited basis let out inmates who are ill. But lawmakers should go further. They should enact laws that require courts to revisit sentences after, say, 20 years. They should grant inmates the presumption of parole in more cases, meaning a parole board would keep a person locked up only with good reason. Broader reform should reduce the use of longer sentences in general.

Some caution is warranted. People deemed dangerous — the criminal justice system has ways of gauging that risk — should not be let out. Policies might exclude certain kinds of crimes.

With the savings from releases, lawmakers could pay for more effective approaches to public safety. Experts often say the United States is overincarcerated and underpoliced, particularly for violent crime. Police departments across the country have reported serious staffing shortages for years, and we know that having fewer officers around leads to more crime. These shortages are one reason nearly half of America’s murderers now get away with it.

You don’t have to mourn an older killer’s lifelong suffering in prison to think reform is a good idea. You can just think, as I do, that the criminal justice system should protect Americans as efficiently and effectively as possible. Paying for the housing, food and health care of someone unlikely to commit a crime should not make the cut.

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Mixed views on closing two Pennsylvania prisons in neighboring counties

What has turned out to be one of the more controversial pieces of Gov. Josh Shapiro’s 2025-2026 budget proposal was never mentioned during his 90-plus minute speech laying out the spending plan this past week, according to the Pennsylvania Capital Star.

In budget documents, the governor proposed closing two Pennsylvania prisons, which his office says could save the state $100 million per year. He also proposed closing two community corrections centers for another $10 million in annual savings. The Shapiro administration has said falling incarceration rates in Pennsylvania make the closures possible. 

But the proposal has drawn varied reactions. The prison guards’ union has come out strongly against it, though the Department of Corrections said in an email to employees that all current workers would be able to hold on to a job with the same pay if they choose. Advocates for prisoners in Pennsylvanians have expressed cautious optimism that the move could improve lives in prisons, depending on how it’s done. And some lawmakers who represent districts with prisons in them have expressed concern about the economic impacts on nearby communities. 

The Department of Corrections says the specific facilities have yet to be chosen based on the recommendation of a “steering committee.”

‘Depends on how it’s executed’

Whether or not the move improves conditions for inmates by increasing access to rehabilitative programming and avoiding overcrowding in part depends on the durability of the trend of decreasing incarceration, as well as how the prisons slated for closure are chosen. How the plan is enacted could also have major impacts on communities with economies that rely on those prisons.

“Anything depends on how it’s executed,” said Claire Shubik-Richards, the executive director of the Pennsylvania Prison Society, a nonprofit that offers support services for incarcerated Pennsylvanians and their families, including prison monitoring, transportation for visitation and mentoring. 

In theory, Shubik-Richards approves of the idea to close the prisons.

“Most states, including Pennsylvania, have seen the footprint of their state prison population shrink,” Shubik-Richards said. “So this is really, I would say, belatedly keeping with a national trend.”

Both locally and nationally, prison populations have fallen since the COVID-19 pandemic saw many non-violent offenders released over health concerns. And the lower incarceration numbers have stuck. That’s led states like Illinois and New York to close prisons in the last few years.

In Pennsylvania, the state’s 23 prisons collectively hovered around 100% capacity before the pandemic, with some individual facilities overfilled. But the latest state Department of Corrections monthly population report paints a different picture, with facilities operating at just over 82% capacity. According to the Department of Corrections, there are more than 37,000 people in the state’s 23 prisons and one boot camp on any given day, and monthly reports show that number is often higher by thousands.

Jill McCorkel, a professor of criminology and sociology at Villanova University, said this is in part because of releases during the COVID-19 pandemic, but also because of a bipartisan trend of support for legislation rolling back war-on-drugs era policies that started to stem incarceration rates in the late 2000s and 2010s.

At the time, America’s prison population was growing explosively, and increasingly costing taxpayers. Ethical and cost concerns brought together lawmakers and advocates on both the left and the right. Groups as disparate as Americans For Prosperity, a political advocacy group funded by The Koch brothers, and the American Civil Liberties Union can often still find common cause pushing laws intended to reduce mandatory sentencing laws around the country that were born out of the crackdown on drug use in the 1980s.

Shubik-Richards said she believes the lower incarceration numbers are here to stay, barring a “large external shock.”

But there are other considerations the Department of Corrections and the governor should take into account, she said. Right now, most Pennsylvania prisons are facing a severe shortage of reintegration-focused programs, whether those are educational, vocational or dealing with mental health and substance abuse issues. Consolidating staff at fewer facilities, Shubik-Richards said, could be one way to improve the situation. But that will depend in part on how many specialized staff can be retained.

And importantly, one of the best predictors of post-incarceration success for inmates is whether or not their families are able to visit them behind bars according to Shubik-Richards and other advocates. Numerous academic studies support a small to moderate reduction in recidivism associated with family visitation. Shubik-Richards wants any decision on which facilities to close to take into account the population centers where detainees are coming from. 

Philadelphia and Allegheny County residents make up the largest share of the state’s prison population.

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The future of prison surveillance--Transdermal microchips

What are transdermal microchips?

Transdermal microchips are small devices that can be implanted under the skin. They are designed to track movement, monitor health and send automatic alerts in real time, reported Correction1. They use RFID and biometric sensors to provide constant feedback without relying on manual monitoring. Even though this technology is still new to correctional settings, similar technologies are already being used in high-security environments, military operations and medical monitoring. If implemented in prisons, transdermal microchips could change the way facilities track inmates due to their ability to provide instant location updates, detect medical emergencies before they escalate, and reduce the risk of escapes by eliminating blind spots in supervision.

The debate over transdermal microchips as a correctional tool has sparked strong opinions from legal scholars, policymakers, correctional leaders and civil rights advocates, with compelling arguments both in support of and objecting to their use.

Supporters: Why we need microchips

Legal researcher James Boezi argues that transdermal microchips represent the only truly tamper-proof method of inmate tracking. Unlike RFID bracelets or GPS devices, microchips cannot be removed or disabled by the wearer and enable real-time location monitoring without risk of manipulation.

David P. Mulholland, Director of Correctional Technology at the National Institute of Justice, emphasizes that the technology goes beyond security. “Microchips offer an unparalleled ability to monitor movement, detect medical distress and even track contraband circulation,” he states. “This is not just about security. It’s about modernizing how we manage corrections.”

Former warden and security consultant Michael Johnson reinforces this point, noting that correctional systems spend millions of dollars on escape manhunts. “Imagine if, instead, we had immediate, pinpoint location data,” he says. “The cost savings and public safety benefits are undeniable.”

Critics: Ethical, legal and operational concerns

Even with the advantages of transdermal microchips, issues of privacy and civil rights remain. According to, legal expert on privacy rights Emma Kerrison, “The fundamental problem with implanting microchips in inmates is consent. Even convicted offenders maintain bodily autonomy under the Eighth Amendment. This could set a dangerous precedent for forced state surveillance.” In the Duke Law & Technology Review, John Pishko says, “E-carceration is the next frontier of mass surveillance. Microchip tracking raises serious concerns about mission creep, what starts as a security measure in prisons could become widespread government tracking beyond correctional facilities.”

Sentencing Law and Policy Expert Alex Berman says, “There are too many unknowns. Will the data be secure? Will it be used only for location tracking, or will it expand to monitoring inmates’ thoughts, emotions, and medical conditions without consent?”

Is this the most effective technology for corrections?

Despite the use of RFID tags, GPS tracking and biometric systems, escapes still happen, response times are slow and security gaps exist. The question isn’t just whether we need better tracking technology, it’s whether transdermal microchips are the best option for correctional facilities today.

Right now, some prisons use RFID bands, GPS ankle monitors and biometric scanners, but all have flaws:

RFID tracking only works in designated areas and can be blocked by walls and interference.

GPS ankle monitors need constant power, and if batteries die or signals drop, tracking stops.

Biometric scanners require inmates to pass through checkpoints, so they don’t track movement in real time.

Transdermal microchips can fix these issues. Unlike external devices, they can’t be removed, lost, or blocked, and they provide live tracking, instantly alerting officers if an inmate moves into an unauthorized area. But just because it’s the most advanced option doesn’t mean it’s the right choice for every facility. Introducing microchip tracking would require a major investment in software, training and cybersecurity. But so do escapes, delayed medical responses and preventable in-custody deaths, and those add up fast.

Every time an inmate escapes, agencies are forced to put millions into search operations, emergency response teams and legal expenses. A single escape, like the 2015 Clinton Correctional Facility breakout, cost New York taxpayers $23 million in just 23 days. And with over 2,200 reported escapes from U.S. prisons in a single year, it’s clear these incidents aren’t just rare, one-off occurrences.

Beyond escapes, delayed medical responses also contribute significantly to correctional system costs. In emergencies such as heart attacks, overdoses, or suicide attempts, every second is critical. In California, the use of telepsychiatry saved the Department of Corrections approximately $850 per inmate in transportation costs, totaling $4 million in savings. If that level of efficiency can be achieved through virtual care alone, the potential impact of real-time biometric alerts is even greater.

Transdermal microchips could not only accelerate medical response times, but also help prevent costly emergency hospitalizations, reduce liability exposure, and ultimately save lives. With appropriate policies and oversight, this technology could also deliver instant security alerts and eliminate manual errors in inmate tracking and medical documentation.

Among the most significant advantages of transdermal microchips are:

1. Instant alerts when inmates enter unauthorized areas

Even though correctional officers conduct headcounts and monitor surveillance feeds, the human eye has limitations — especially during high-stress periods. Microchip technology can enhance institutional safety by providing real-time alerts when inmates move into unauthorized areas, enabling immediate staff response and preventing potential escapes.

This capability is already in use in select facilities. For example, Minnesota’s Lino Lakes facility implemented an RFID tracking system to monitor inmate movement and alert staff when a designated boundary was breached. This system helped reduce escape attempts and improved overall response times. Broader studies on electronic monitoring show that automated alerts significantly reduce escape rates by notifying staff in real time rather than relying on delayed manual checks.

2. Real-time health monitoring for medical emergencies

Life-threatening conditions in custody often emerge without warning. Whether it’s cardiac arrest, overdose, or self-harm, the timing of the response can determine the outcome. Real-time biometric monitoring through transdermal microchips can continuously track vital signs and notify medical staff the moment anomalies occur.

A 2025 study found that wearable biometric devices enabled earlier intervention, resulting in fewer in-custody deaths due to preventable medical issues. The U.S. Department of Justice has also promoted real-time health tracking in correctional settings as a critical tool for reducing avoidable fatalities.

3. Eliminating human error in inmate record-keeping

One of the most persistent challenges in corrections is the potential for human error in logging inmate activity, including counts, medical checks and security rounds. Many facilities still rely on paper logs, which are susceptible to mistakes, falsification, or omission.

Transdermal microchips could automate these functions, logging inmate movements in real time, linking alerts to actual behavior, and generating verifiable records of compliance. Some facilities have already begun this shift. Guard1’s Mobile RFID Inmate Tracking System, for example, replaces manual logs with digital tracking and has improved staff accountability while reducing workload.

4. Cybersecurity and privacy safeguards

The effectiveness of any monitoring technology hinges not just on its capability but on how securely the data is handled. The American Civil Liberties Union has warned that without strong privacy safeguards, biometric tracking could lead to surveillance overreach and abuse.

To mitigate these risks, correctional agencies must adopt strict cybersecurity protocols. These include encrypting all location and biometric data, restricting access to authorized personnel only, and ensuring post-release data is not retained or used beyond incarceration.

5. Alternative options for inmates who refuse microchips

Some inmates may object to microchip implantation on religious, medical, or personal grounds. To avoid legal and ethical violations, facilities must offer viable alternatives, such as wearable RFID devices or smart uniforms.

A documented opt-out process should be in place to protect the rights of objecting individuals, and refusal to comply should not affect parole or sentencing outcomes. By maintaining flexibility, agencies can ensure compliance while respecting individual rights.

How to get there and what can be done

Even with the clear operational and safety benefits of transdermal microchips, transitioning to this technology will require time, oversight, and strategic planning. Correctional institutions must move deliberately, addressing legal, ethical and infrastructure challenges through phased implementation.

1. Conduct a pilot program in a high-risk facility

Before adopting the technology systemwide, agencies should test microchip tracking in a controlled environment to assess real-world effectiveness, staff training needs, and system reliability. One such example is a U.S. Navy study in a military brig that successfully used biometric tracking — including fingerprint and iris scans — though it required careful protocol development and staff training.

2. Establish clear regulations for data collection and inmate consent

As biometric systems expand, so do concerns over data use and consent. Regulatory frameworks must address how personal information is gathered, stored, and used. A lack of safeguards, as seen in South Africa’s correctional fingerprint scanning program, can spark controversy and legal challenges.

3. Implement strong cybersecurity and data protection

Tracking sensitive biometric and location data creates inherent cybersecurity risks. Agencies must adopt systems with encryption, multi-layered access controls, and strict protocols modeled after systems like the FBI’s Next Generation Identification platform, which protects vast amounts of sensitive information.

4. Collaborate with legal experts and civil rights organizations

A major misstep in technology implementation is excluding key stakeholders. In the U.S., GPS parolee tracking programs faced legal backlash because they were deployed without civil rights consultation, resulting in lawsuits over privacy violations.

5. Invest in secure infrastructure and backup systems

Reliability is essential. A case from Hong Kong’s Tai Tam Gap Correctional Institution demonstrated that power disruptions can compromise biometric systems, emphasizing the need for backup power and redundant safeguards.

6. Establish an independent ethics committee for oversight

Oversight is critical to maintaining public trust. The United Kingdom’s Biometric and Forensics Ethics Group (BFEG) offers a strong model for independent review bodies that monitor compliance and guide responsible use.

Would authorities accept it?

The path to implementation will face internal and external resistance. Some correctional officers worry that automation may displace staff or devalue their roles. Civil rights advocates argue that forced implantation violates the Eighth Amendment.

Emma Kerrison, a privacy law expert, warns: “The biggest problem with microchip implants is consent. Even convicted offenders still have bodily autonomy under the Eighth Amendment. This could set a dangerous precedent for government tracking.”

Still, others see it as a logical evolution in public safety. As James Boezi notes, “Microchips are the only truly tamper-proof tracking system. Unlike ankle monitors or RFID bracelets, they cannot be removed or disabled. They allow real-time location tracking without risk of manipulation.”

Ultimately, the success of any implementation will depend on how the technology is introduced, managed, and regulated.

Conclusion

Current prison tracking methods are failing. Manual headcounts remain vulnerable to human error, and even today’s electronic systems have critical limitations that allow escapes to occur. The debate over transdermal microchips reflects broader tensions in the field — between advocates for modernization and those concerned about privacy and civil liberties. Yet the reality is clear: traditional security measures are no longer sufficient. Correctional facilities must explore new, technology-driven solutions to enhance safety, prevent escapes, and protect the public.

Transdermal microchips offer one such solution. By enabling real-time tracking, automating alerts, and monitoring inmate health, they have the potential to close long-standing gaps in institutional security. But implementing this technology will require more than just infrastructure — it will demand a coordinated strategy involving correctional leaders, legislators, privacy experts, and cybersecurity professionals. Regulations, ethical guardrails, and robust oversight must be in place from the outset.

The 2035 scenario illustrates what’s possible. A breach that once led to a multi-agency manhunt now ends in minutes because officers are alerted immediately. No guesswork. No delay. This isn’t just a leap in efficiency — it’s a fundamental shift in how correctional institutions operate.

Privacy concerns remain valid, and consent must be part of the conversation. But by establishing transparent policies and third-party oversight, correctional leaders have an opportunity to balance operational security with respect for individual rights. The future of effective corrections lies in the smart adoption of technology — designed not to replace the human element, but to reinforce it where the risks are greatest.

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Nearly 1,000 people convicted by split juries remain in prison in Louisiana

Louisiana allowed split jury criminal convictions. If one or two jurors disagreed on a guilty verdict, the defendant could still be convicted. Oregon was the only other state to allow split verdicts.

Louisiana adopted the practice in 1898, fueled by efforts to maintain white supremacy after the Civil War. Diluting the voice of Black jurors allowed the often-white majority to determine the outcome.

In 2018, Louisiana voters did away with the use of nonunanimous jury convictions. Two years later in 2020, the Supreme Court ruled that juries in state criminal trials must be unanimous to convict a defendant, settling a quirk of constitutional law that had allowed divided votes to result in convictions in Louisiana and Oregon.

Justice Neil Gorsuch wrote for the court that the practice is inconsistent with the Constitution’s right to a jury trial and that it should be discarded as a vestige of Jim Crow laws in Louisiana and racial, ethnic and religious bigotry that led to its adoption in Oregon in the 1930s.

Of the 1,500 people in Louisiana prisons from split jury convictions at that time, about 80% were Black and most were serving life sentences, according to a Project of Justice Initiative analysis.

Following the high court decision, Oregon’s Supreme Court granted new trials to hundreds of people. But Louisiana’s Supreme Court rejected arguments to apply the ruling retroactively, leaving people locked up with scarce legal options or waiting on a miracle.

Nearly 1,000 people convicted by split juries remain in prison in Louisiana.

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Louisiana seeks constitutional amendment to draw more juveniles into adult court

When Louisiana reversed its “Raise the Age” law in early 2024, moving all 17-year-olds back into the adult criminal system, it became the first and only state in the nation to enact such a reform, intended to shield youth from adult prisons, only to then repeal it. Since then, sheriffs of some of the biggest parishes in the state have struggled to accommodate the influx of minors into their jails. Now, Louisiana lawmakers are seeking to go a step further: They’ve proposed an amendment to the state constitution that would give themselves more leeway to decide what crimes can send children even younger than 17 into adult court—and potentially adult prison, reported Bolt. 

On March 29, Louisianans will vote on Amendment 3, a constitutional amendment that would hand legislators the power to add, with a two-thirds majority vote, any felony to the list of charges that would qualify a child to be treated like an adult in the eyes of the law. In Louisiana, this includes crimes like making a fake ID or stealing a phone. The state constitution currently restricts the crimes for which minors aged 14 and up can be charged as adults to a list of 16 serious felonies including murder, rape, and armed robbery. 

The amendment’s sponsor, Republican state senator Heather Cloud, says the limits on charging children as adults have “hamstringed” Louisiana from being able to address juvenile crime. Some of the bill’s supporters have expressed a deeply pessimistic view of Louisiana’s youth population; in a House committee hearing last fall, Republican lawmaker Tony Bacala told his colleagues, “Some of these kids are already lost when they’re two years old.” 

The move has alarmed advocates across the state, who are urging a no vote. “This is just casting the net wider to get young people inside the system,” Antonio Travis, the youth organizer for the group Families and Friends of Louisiana’s Incarcerated Children, told Bolts.

“These are grasps for more power,” said Sarah Omojola, the executive director of Vera Institute New Orleans. “We’re really trying to cage up and defund Louisiana’s future.”

Louisiana Governor Jeff Landry sat in chambers during the House’s debate and vote on the amendment in November, a signal of his support. Its content is consistent with a broader effort by Landry and his allies in the legislature to establish more serious and lasting consequences for young people accused of crimes. In 2023, as attorney general, Landry campaigned for a bill that would have made young people’s criminal records public—but only for residents of the state’s three most populous parishes, which are all majority-Black. The bill was sponsored by state representative Debbie Villio, a former prosecutor and ally of Landry’s who brought the constitutional amendment alongside Cloud. 

Both Landry and Villio insisted at the time that this targeting was about crime rates, not race, but organizers were appalled. “How could a person not look at the evidence and see that this is an intentional attack on certain communities?” Travis asked. The bill died in the senate amidst widespread accusations of racism. But in 2024, during a special session on crime that Landry called as his first official act as governor, Bacala brought back a new version that applied equally to every parish, which passed. Landry promptly signed it into law. 

Before 2017, the year Louisiana’s “Raise the Age” law took effect, “the education system was definitely, definitely feeding our youth justice system,” Travis told Bolts. “Kids were getting incarcerated from truancy. Kids were getting incarcerated from being suspended too much.” 

The reform moved 17-year-olds into the juvenile justice system as a default, though those accused of serious crimes could still be transferred to adult court. “This narrative of these hard criminals … that narrative was slowly being done away with,” Travis said. “The general public was recognizing that these are kids and they deserve resources.”

But this new day in Louisiana wouldn’t last long. There were a few abortive efforts to overturn “Raise the Age”: one bill that Landry, then attorney general, supported died in 2022; another was vetoed by then-Governor John Bel Edwards, a Democrat, in 2023. But this year, with Landry as governor, the legislation passed and became law last April. Landry feted the change on X, writing: “No more will 17-year-olds who commit home invasions, carjack, and rob the great people of our State be treated as children in court. These are criminals and today, they will finally be treated as such.”

The fallout was immediate: Any 17-year-olds already in custody were transferred to adult facilities, and all 17-year-olds arrested from then on were processed and treated as adults, meaning that their criminal history also becomes public record. The vast majority of these young people were not accused of home invasions, carjacking, or robbery, it turns out. Of the 203 17-year-olds arrested in the state’s three largest parishes during the first five months under the new law, ProPublica found that nearly 70 percent were charged with nonviolent crimes, like trespassing or marijuana possession. Only 13 percent were charged with serious felonies—and prosecutors already had the discretion to send young people accused of these crimes into adult court. 

Erika Jupiter, statewide organizing manager for Families and Friends of Louisiana’s Incarcerated Children’s, told Bolts that the change has had the effect of separating young people from their families and communities. ”Parents are very worried about the experience their children are having, and also it’s harder for them to communicate with their children,” she told Bolts. “If your child is in that adult facility, you may go weeks without knowing a status on what’s happening with them.” 

Recognizing that minors are at increased risk of physical and sexual assault in prison, the federal Prison Rape Elimination Act requires them to be “sight and sound” separated from adult prisoners. This has resulted in adult prisons placing young people in solitary confinement or in “pods,” which Jupiter described as “windowless shipping containers.” “It’s still inhumane,” she said. Officials have also shipped kids to prisons over 150 miles away from their original facility since the law took effect. “You have children going so far away from home, and their parents can’t visit,” Jupiter said.

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CREATORS: The Dubious Origin of "Three Strikes Law"

Matthew T. Mangino
CREATORS
March 11, 2025

The rising tide of urban violence during the 1980s and 1990s caused lawmakers to consider ways to up the ante for chronic offenders. In 1994, Congress enacted the former President Bill Clinton-backed Violent Crime and Control Law Enforcement Act. Part of the Act included a "three strikes" provision.

The federal three strikes statute, or habitual offender law, as it is sometimes referred, punishes a defendant with "mandatory life imprisonment if he or she is convicted in federal court of a 'serious violent felony' and has two or more prior convictions in federal or state courts, at least one of which is a 'serious violent felony.'

Many states followed the federal government. Today 28 of them have some form of three strikes laws. Many considered the habitual offender laws as an innovation in sentencing that would make neighbors safer. In fact, habitual offender laws were not innovative, they were dubious laws repackaged from an embarrassing era in American jurisprudence.

A new report from The Sentencing Project authored by Daniel Loehr entitled "The Eugenic Origins of Three Strikes Laws: How "Habitual Offender" Sentencing Laws Were Used as a Means of Sterilization" traces the connection between eugenics and three strikes laws.

"Habitual offender" laws first spread across the country in the early 1900s as part of the eugenics movement, which grew in the 1880s and reached its peak in the 1920s. The movement aimed to create a superior race to address social problems such as crime and disease, which, as Loehr suggested, the movement assumed had a biological basis.

Applying pseudoscience, laws and policies were created to prevent those who were deemed inferior, such as the mentally ill, those convicted of criminal offenses, or the physically frail, from reproducing, according to Loehr. Eugenics and racism are deeply entwined, as eugenics supported "racial nationalism and racial purity." One example of the relationship between race and eugenics is found in Nazi Germany, where "Nazi planners appropriated and incorporated eugenics as they implemented racial policy and genocide."

U.S. Supreme Court Justice Oliver Wendell Holmes' opinion in Buck v. Bell — which upheld the sterilization of women in the state of Virginia — was even cited in defense of Nazi judges during the Nuremberg War Trials.

Carrie Buck became pregnant at age 16. Her foster parents had her institutionalized as a "feeble-minded moral delinquent," despite her claims that she had been assaulted by their nephew.

After she gave birth, Buck was sent to the Virginia State Colony for Epileptics and Feeble-Minded in Lynchburg, where her mother was already a resident.

Virginia had a law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck's sterilization by a vote of 8-1. Holmes' 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court — "Three generations of imbeciles are enough."

Three strikes laws reduce crime primarily through a theory of sentencing known as incapacitation. Proponents of incapacitation argue that an offender who is locked up cannot commit another crime while incarcerated. The longer the prison stay, the less opportunity to commit crime. Incapacitation is hard to argue against, especially when the person is a repeat offender. However, there is a downside to incapacitation.

Three strikes laws significantly increase the sentence length of a growing segment of prisoners, resulting in a growing and aging prison population. The fiscal impact of the measure has been significant at both the state and local levels.

According to Jacob Bush in an article in the Kentucky Law Journal entitled "Habitual Offenders Statues: A Need for Change" state expenditures for corrections went from $10.62 billion in 1987 to $80 billion in 2021.

States will face significantly higher future costs resulting from habitual offender laws as that population continues to grow and age. Tough-on-crime legislation, immigration crackdowns and promises of draconian sentencing practices continue to put a huge strain on an already overwhelmed criminal justice system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Trump's view of those federal prisoners with commuted death sentences is alarming

Shortly after being sworn in, President Donald Trump signed an order to expand the death penalty, confirming a widespread expectation that the Department of Justice may seek capital punishment more often under his administration, reported The Marshall Project. The first Trump administration carried out more executions than any president in at least a century. But legal experts say the order is short on details about how the administration will carry out its plans in the face of legal and bureaucratic barriers.

“This executive order is lacking in so many important details that it’s hard to know exactly what’s intended by some of these statements. Much of it sounds more like campaign rhetoric than policy statements,” said Robin Maher, executive director of the Death Penalty Information Center, a nonprofit organization that researches and analyzes the issue.

Pam Bondi, Trump’s nominee for attorney general, fought to maintain death sentences when she was attorney general in Florida.

In the past, the U.S. attorney general has had wide latitude in deciding whether to seek the death penalty in individual cases. Trump’s order instructs the office to pursue federal jurisdiction and seek the death penalty, “regardless of other factors,” for people who murder a law enforcement officer or who are in the country illegally and commit a capital crime.

But Maher said it would be “unprecedented and contrary to established law” for prosecutors to seek a federal death sentence for every capital crime where the defendant is an undocumented immigrant.

Stories about Trump administration policies affecting criminal justice and immigration, and the president’s own criminal cases.

Republicans in Congress and state legislatures have long sought to expand use of the death penalty for people who kill police. Under federal law, jurors can consider the targeting of law enforcement as an “aggravating factor” in deliberating over the death penalty when the victim is a federal agent, judge or corrections officer. Several U.S. senators recently introduced the Thin Blue Line Act, which would add local and state police officers, firefighters and other first responders to the law.

Miriam Gohara, a clinical professor of law at the Yale Law School, said the most striking piece of Trump’s order regarded the people who had their sentence commuted from death to life in prison. Before leaving office, Biden commuted the sentences of 37 people. Trump’s order said the attorney general should ensure that those people are “imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”

Gohara said that raises legal concerns. “The punishment is being incarcerated. The punishment is not the condition of confinement. That's not legal,” she said.

People in maximum-security facilities already face harsh conditions, like the use of solitary confinement. “Are they going to intentionally put some sort of atmosphere in place that is intolerable?” said Gohara. “I can't imagine that is actually something that they could carry out. On the other hand, I don't want to underestimate them either.”

Trump’s order also said officials will explore whether some of the people whose sentences were commuted can be charged in state courts and receive new death sentences that way. But Gohara was skeptical that prosecutors would spend precious resources on decades-old cases where the person was already in a federal prison for life.

While the Trump administration has no jurisdiction over state cases, the president’s order says the federal government will work to ensure that states can keep killing people on death row by helping local governments obtain drugs for lethal injection.

Pharmaceutical companies have been refusing to supply corrections agencies with the deadly drugs, citing moral and business concerns. Some states have abandoned executions, while others have explored alternative ways to kill people, including firing squads and gas chambers.

​The order also instructs the attorney general to work to overthrow Supreme Court precedents that “lim­it the authority of state and fed­er­al gov­ern­ments to impose capital punishment.” The order does not reference specific cases, but this could be an allusion to Supreme Court rulings that limit the death penalty when the person convicted was under 18 at the time of the crime or has an intellectual disability. It could also refer to Supreme Court rulings that death sentences are inappropriate in cases where the victim does not lose their life. There have recently been efforts in states like Florida to allow capital punishment for the rape of a child.

While the order directs federal prosecutors to seek the death penalty more often, there is no guarantee that they will succeed in any individual case. Roughly half of Americans still support the death penalty in various polls, but a growing number reject it in individual cases when serving as jurors. The decline in support owes to a mix of interrelated factors: changing societal views on mental illness and intellectual disability, aggressive efforts by defense lawyers to present defendants’ childhoods as mitigating factors and reluctance by prosecutors to seek the punishment in the first place. Last year, 26 people were sentenced to death in state and federal courts across the country, compared with a peak of more than 300 a year in the mid-1990s, according to the Death Penalty Information Center.

NY AG investigating corrections officers after beating death of inmate captured on body cameras

Corrections officers punched and kicked a handcuffed, shackled inmate in the groin and chest during a fatal attack at a prison in central New York this month, video footage released publicly reported The New York Times.

The footage was recorded by body cameras worn by four of the officers. It was made public by Letitia James, the state attorney general, as part of her office’s investigation into the death of the man, Robert Brooks, and the beating that preceded it.

Among other things, the videos show one corrections officer using a booted foot to kick Mr. Brooks, whose face is bloodied, and then force him onto his back on an infirmary examination table while another officer punches Mr. Brooks in the upper body.

The videos show corrections officers kicking, punching and restraining Robert Brooks, whose face is bloodied.CreditCredit...New York State Attorney General Office

Ms. James said that the eight videos her office released depicted “shocking and disturbing” behavior.

“I do not take lightly the release of this video, especially in the middle of the holiday season,” she said during an online presentation. “But as the attorney general I release these videos because I have a responsibility and duty to provide the Brooks family, their loved ones and all New Yorkers with transparency and accountability.”

Ms. James’s investigation could result in criminal charges for some or all of those implicated in the assault, as could inquiries by the State Police and the corrections department’s Office of Special Investigations.

Mr. Brooks was Black and all the officers in the video appear to be white. 

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Alleged CEO assassin remains in PA prison fighting extradition

Luigi Mangione, the suspect in the shooting death of UnitedHealthcare CEO Brian Thompson in Manhattan, is fighting extradition to New York, and will remain in custody in Pennsylvania, reported the Pennsylvania Capital Star. 

Mangione, 26, was charged late Monday in Manhattan with second-degree murder, forgery and three gun charges. He was arrested at a McDonald’s in Altoona on Monday and was arraigned Monday evening at the Blair County Courthouse in Hollidaysburg on charges of carrying a firearm without a license, forgery, records or identification tampering, possession of instruments of crime and presenting false identification to law enforcement. 

Police said they found a 3D-printed pistol loaded with nine rounds of 9 mm ammunition and a loose hollow-point round in Mangione’s backpack. The gun was with a silencer that had also been 3D printed, police said.

Blair County Common Pleas Judge David Consiglio ordered Mangione held without bail at SCI-Huntingdon pending an extradition hearing. The Associated Press reported that Mangione shouted about an “insult to the intelligence of the American people” as he arrived at the courthouse on Tuesday.

Thompson, 50, was shot and killed outside a New York City hotel on Dec. 4. He had been CEO of UnitedHealthcare, one of the nation’s largest for-profit health insurance providers, for nearly three years.

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Pennsylvania one of 13 states that doesn't compensate the wrongfully convicted

 In 1987, Alfredo Domenech was accused of murder, and in 1988 he was sentenced to life in prison. He served 18 years of that sentence before his trial was reopened and the charges were dismissed.

“I still feel like it was yesterday, and every morning I wake up and feel like it’s the same day, like I never came from that moment,” Domenech said Tuesday on the steps of the Capitol in Harrisburg. “I’m still stuck in the past. We need compensation to start moving on.”

Domenech was at the Capitol along with a coalition of other exonerees and advocates — the It Could Happen to You coalition — asking lawmakers to pass a bill that would grant state compensation for the wrongfully convicted.

Pennsylvania is one of 13 states that does not have a program to compensate people who serve time in prison on wrongful convictions, reported The Pennsylvania Capital-Star.

“Some of those folks lose decades of their lives behind prison bars, missing out on milestones and memories with their loved ones and friends, and losing out on meaningful work opportunities,” Sen. Camera Bartolotta (R-Washington) the only lawmaker at the press conference with Domenech. “Our time to act is right now.”

Though the exonerees received a private audience with House Speaker Joanna McClinton (D-Philadelphia), they acknowledged it would be an uphill battle. 

Bills that would create compensation for the wrongfully convicted have been introduced in previous sessions, but never passed.

Jeffrey Deskovic described the difficulty of reentering society after a wrongful conviction. After serving 16 years for murder, he was exonerated following DNA testing. 

“I was always passed over for gainful employment,” Deskovic said. “It felt like employers always wanted someone who had job experience. They didn’t have any patience for on-the-job training.”

But fortunately for Deskovic, he was living in New York, one of 37 states, along with Washington, D.C. with programs that provide compensation for the wrongfully convicted. 

Still, it took five years for him to see those funds, and in that time he saw how difficult it would be for others who didn’t receive some form of payment.

After he was compensated, Deskovic got a masters degree from the John Jay College of Criminal Justice and started a nonprofit, the Jeffrey Deskovic Foundation, to help other exonerees.

“There’s no amount of money that’s worth being wrongfully imprisoned, yet compensation is an indispensable tool in terms of putting your life back together,” Deskovic said. 

Teri Himebaugh, executive director of the Philadelphia-based Police Transparency Project, said that, in some cases, Pennsylvania’s lack of compensation can actually cost taxpayers. 

Since 2016, she said, 49 defendants have been exonerated just in Philadelphia. With no wrongful conviction compensation law, some of those defendants have gone on to sue the city.

Since 1992, Philadelphia has paid out over $60 million in civil settlements.

“All in all, it is not just an ethical and responsible thing to do to offer compensation,” Himebaugh said. “It is a financially stable and responsible thing to do as well.”

The group is asking for a law that would allow wrongfully convicted people to get $100,000 per year served on death row, $75,000 per year served not on death row, and $50,000 per year of time on parole.

Last year, a bill that would have done just that was introduced by Rep. Regina Young (D-Philadelphia). It was reported out of committee, but tabled before a final vote on the floor.

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PLW: One Word May Make All the Difference for Lifers Convicted of Felony Murder

Matthew T. Mangino
The Legal Intelligencer
September 26, 2024

The Pennsylvania Supreme Court has agreed to hear oral arguments in a criminal case that will test, when it comes to punishment, whether the Pennsylvania Constitution provides greater protections than the U.S. Constitution.

The constitutional provisions at play are Article I, Section 13 of the Pennsylvania Constitution and the Eighth Amendment to the U.S. Constitution.

Article I, Section 13 of the Pennsylvania Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Pennsylvania Supreme Court must decide whether the term "cruel punishment" is more expansive in the punishments it precludes than the term "cruel and unusual punishment."

In what context has this matter made its way to the state's high court?

On Oct. 14, 2014, Derek Lee was one of two men who entered a residence in Allegheny County shared by Leonard Butler and Tina Chapple. According to the Pennsylvania Superior Court, "Both Butler and Chapple were forced into the basement of the home, and then were forced to kneel. Both males were yelling at Butler to give up his money and one used a taser on Butler several times during the attack." Lee took Butler's watch and went up the stairs, leaving the basement.

The second male remained with the couple and shot Butler causing his death.

There is no dispute that Lee did not kill or intend to kill in the commission of the robbery. Following trial, the jury found Lee guilty of second-degree murder, robbery, and conspiracy. Second degree murder, felony murder, is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b), "Criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony."

The Pennsylvania Crimes Code, 18 Pa.C.S.A. 1102(b), provides a mandatory sentence of life in prison for second degree murder. As a result, Lee was sentenced to life without the possibility of parole.

In Pennsylvania, life without parole is often referred to as death-by-incarceration.

Pennsylvania's death penalty is in a de facto moratorium. Gov. Josh Shapiro has said unequivocally that he is opposed to the death penalty, but death-by-incarceration is flourishing in Pennsylvania.

Under Pennsylvania's sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence. The maximum must be at least twice the minimum.

Once an inmate has served his minimum sentence, he is eligible for parole. Release from prison is determined by the state's parole board. Once released, the offender is supervised on parole until the expiration of his maximum sentence.

A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania.

Over time, the U.S. Supreme Court has back-pedaled from life without parole. The decisions in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016) are instructive. Lee has cited in his argument the U.S. Supreme Court's finding that "That life-without-parole sentences are sufficiently similar to the death penalty that they may be unconstitutional when applied to people with categorically diminished culpability based on their offense or characteristics."

That is the criticism of Pennsylvania's mandatory sentence of life without parole for second degree murder—diminished culpability. As in Lee's case he was not the shooter, he didn't intend to shoot anyone, yet his sentence provides no hope for redemption, rehabilitation or a return to society.

The Pennsylvania Supreme Court's review of Lee's case comes down to a single word, "unusual." Lee argues that the absence of the word "unusual" in the text of Article I, Section 13 is crucial to finding mandatory life without parole for second degree murder unconstitutional.

In Bucklew v. Precythe, 587 U.S. 119 (2019), U.S. Supreme Court Justice Neil Gorsuch turned to history as he and his conservative colleagues are so eager to do when analyzing an argument. Gorsuch cited a 2009 law review article by John F. Stinneford defining "unusual" in a constitutional sense as "Americans in the 18th and 19th centuries describe unusual government actions that had "fallen completely out of usage for a long period of time." (Appellant's brief at page 17).

Without the limitations of "unusual" in Article 1, Section 13, the Pennsylvania Supreme Court is free to determine if life without parole, although still in use, is unduly cruel. The argument suggests even if the Eighth Amendment to the U.S. Constitution doesn't prohibit life without parole for second degree murder in Pennsylvania, the Pennsylvania Constitution does.

So, does the language of Article I, Section 13 provide greater protection than the Eighth Amendment?

Lee's attorneys say yes. However, in order for Lee to prevail he must persuade the court that the four factors outlined in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), favor the prohibition of life without parole for second degree murder.

The four factors are "the text of the Pennsylvania constitutional provision; the history of the provision, including Pennsylvania case law; related case-law from other states; and 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence."

At a minimum, the policy considerations are compelling. Pennsylvania is home to thousands of people sentenced to die in prison. The state has the second-highest number of people serving life without parole, nearly 5,100 inmates, approximately 1,200 of whom have been convicted of felony murder, according to the Pennsylvania Department of Corrections.

Only Louisiana and Pennsylvania still impose the sentence without regard for a person's involvement or intent in the crime. According to the Pennsylvania Capital-Star, every other state among the 30 that allow life sentences without parole require an additional level of intent or action by the defendant.

Lee argued in his brief in support of allowance for appeal, "Pennsylvania stands virtually alone in mandating that anyone convicted of felony-murder is sentenced to life in prison with no possibility of parole."

This matter is scheduled for argument on Oct. 8, 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the author of "The Executioner's Toll," 2010. You can reach him at www.mattmangino.com and follow him on X (formerly Twitter) @MatthewTMangino.

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Compassionate release from prison nearly nonexistent in Pennsylvania

A Pennsylvania man who had been serving life for second-degree murder died over the weekend, 12 days after being granted a medical transfer from prison to a facility that could better treat his condition, including quadriplegia, reported The Associated Press.

Ezra Bozeman, 68, died on Saturday at the UPMC Altoona medical center, Ryan Tarkowski, communications director for the Pennsylvania Department of Corrections, confirmed on Tuesday.

He had been jailed for 49 years before an Allegheny County judge granted his request for compassionate release last month.

Bozeman had been on life support. He had a back injury that had been misdiagnosed for several years, according to his lawyer, Dolly Prabhu, and he required extensive medical care after he became paralyzed from the chest down after surgery.

An aide to Allegheny County District Attorney Stephen Zappala, whose office had opposed the release, said they had no comment on Bozeman’s death.

Prabhu, with the Abolitionist Law Center, described Bozeman as “the sweetest, sweetest person.”

“He was always, always so optimistic,” Prabhu said Tuesday. “And he was confident that it wasn’t a matter of if he gets out, it was when he gets out.”

Bozeman had been convicted in 1975 in the shooting death of Morris Weitz, a dry-cleaning business co-owner, during an attempted robbery. He had maintained he was innocent.

Pennsylvania’s compassionate release law covers incarcerated people who are seriously ill and expected to die within a year. The Pittsburgh Post-Gazette reported that about 50 people have been granted compassionate release over the past 15 years.

Prabhu said it is common for prisoners seeking compassionate release to be close to death, which she said is a consequence of the terms of Pennsylvania’s law on compassionate release. She said there are “hundreds of Ezra Bozemans” in the state’s prisons, and prisons are not equipped to care for very sick, elderly people.

“We have such harsh sentencing laws, and so we have so many elderly people right now incarcerated,” Prabhu said. “And compassionate release is one of the few avenues they have in getting out and getting the care that they need.”

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America’s aging prison population turns prisons into de facto nursing home

In state after state, prison systems have long been plagued by inadequate health care, resulting in the spread of treatable diseases and, in many cases, preventable deaths behind bars, reported Vox. But a key demographic trend threatens to make that problem even worse: Over the last several decades, America’s prison population has been rapidly aging, and, as in Washington’s case, prisoners’ health needs have become more significant as a result.

Here is a link to a column I wrote on prisons as de facto mental health facilities In the Criminal Justice System things are Worse than they Seem

People who were 55 years old or older made up about 3 percent of the US prison population in 1991; by 2021, they accounted for 15 percent. The total number of older prisoners is also steadily growing, with no signs of abatement: In 2020, there were about 166,000 incarcerated people aged 55 years or older; that number grew to about 178,000 in 2021 and 186,000 in 2022.

The graying of America’s incarcerated population is effectively turning the US prison system into a de facto nursing home, leaving hundreds of thousands of older people in its care each year. The result is skyrocketing costs: The Bureau of Prisons’ health care spending on federal inmates rose from $978 million in 2009 to $1.34 billion in 2016, and various state governments have seen similar increases.

Still, conditions in American prisons continue to be detrimental to people’s health and often lead to accelerated aging. Prisoners, for example, are much more likely to exhibit signs of cognitive decline, including dementia, at an earlier age than the general population, and one study found that a 59-year-old in prison has the same morbidity rate — that is, how often people get a disease — as a nonincarcerated 75-year-old.

“We have facilities that aren’t considered humane,” said Lauren-Brooke Eisen, a senior director at the Brennan Center for Justice. “They’re not places for elderly people who have dementia and diabetes and maybe walkers or wheelchairs.”

All of this raises both a moral and practical policy question that lawmakers have to face: Why are we forcing older people to spend their dying years in prison when they can get better care elsewhere?

People aren’t just aging behind bars; police are locking up the elderly

One of the explanations for the aging prison population is simple: Since the 1970s and the age of mass incarceration — when the American prison population ballooned and gave the United States the distinction of imprisoning more people than any other country in the world — people have been aging behind bars.

The other explanation, however, is less obvious: Older people have been getting arrested at higher rates than they used to. In 1991, for example, people who were 55 years of age or older made up only 2 percent of adults who were arrested; by 2021, they made up 8 percent, according to the Prison Policy Initiative, a Massachusetts-based nonprofit that does criminal justice research and advocacy. The Marshall Project also found a similar pattern: Between 2000 and 2020, there was nearly a 30 percent increase in the number of arrests of people over 65, despite the overall number of arrests dropping by nearly 40 percent.

So why are arrests among older people suddenly on the rise? The resurging trend across many American cities and states to further criminalize poverty and impose harsher punishments for petty crimes, including things like shoplifting, is partly to blame because the groups of people who become common targets for police are getting older.

“People who are unhoused and people suffering from mental health disorders and substance use disorders are also aging,” said Mike Wessler, the communications director at the Prison Policy Initiative. “If you look across the country right now, we’re obviously seeing efforts to ramp up policing of people who are unhoused, people with untreated mental health disorders, people with substance use disorder. So it’s almost a certainty that in the coming years we are probably going to see this problem get worse.”

People experiencing cognitive decline, including those suffering from dementia, can also be especially vulnerable during interactions with police. Henry Hart, a 76-year-old with dementia in Maryland, for example, was arrested when he had what his daughter described as a mental breakdown. During the incident, Hart had grown agitated and hit her, and when she called for paramedics to take him to the hospital, police showed up at the scene instead. Officers ultimately arrested him for assault despite his family members’ pleas. After spending time in jail, Hart’s condition seemed to get notably worse, according to his daughter.

“As Maryland’s population ages, experts fear that police will encounter people with dementia more often and without recognizing the condition or knowing how to respond to it,” Baltimore Sun reporters Angela Roberts and Cassidy Jensen wrote. “Arrest or jail time can be especially harmful to people with dementia, given their mental and physical vulnerability, experts say.”

There’s also evidence that beefing up law enforcement has had a negative impact on older people. While younger people have become less likely to be arrested for drug-related crimes than in the past, arrests of older people for drug-related offenses have spiked. Between 2000 and 2018, for example, drug-related arrests of people over the age of 50 rose by 92 percent — the fastest increase out of any age group. And while substance use disorder among older people is on the rise, addressing the problem through stricter law enforcement is not a practical solution.

“It’s a heck of a lot easier to order the National Guard to go stand on subway platforms than it is to figure out how to expand mental health treatment in the state; than to figure out how to address substance use disorders in the state; than to figure out how to address the housing crisis in the state,” Wessler said.

The consequences of an aging prison population

Studies have shown that incarcerated people have signs of aging at a faster rate than others as a result of prison conditions, and that each year in prison can shave years off of someone’s life.

“Health care behind bars is bad even in the best scenarios,” Wessler said. “And that’s kind of by design in a lot of respects: Prisons are not places that are therapeutic or designed to heal; they are places that are designed to punish.”

Infectious diseases tend to disproportionately affect prisoners compared to the general population, and the Covid pandemic in particular showed why prisons are especially dangerous for older people. Deaths of inmates rose by nearly 50 percent in the first year of the pandemic, and while mortality rates increased for prisoners across all ages, older people saw the highest surge in mortality. By contrast, among the general population, it was younger people who saw the highest increase in death rates.

From a public policy standpoint, the aging prison population is a failure on multiple fronts. Most importantly, prisons cause people to age more quickly and die prematurely. After all, while so-called “natural” deaths — that is, death from disease or old age — make up the vast majority of deaths behind bars, they often receive little scrutiny despite the fact that many of them have been found to be the result of medical neglect.

But it’s also costing states a lot of money — money that is clearly not well spent. In Texas, for example, the state’s prison health care costs increased by more than $250 million between 2012 and 2019, although the prison population actually decreased by 3 percent during that time. The state’s prison population aged 55 or older, on the other hand, had increased by 65 percent during that same period, according to data reviewed by the Texas Tribune.

Some lawmakers have noted this is unsustainable. As former state Sen. John Whitmire told the Tribune, “Nobody’s tougher on crime than me, but once you’ve incarcerated a guy past the point that he’s a threat to anybody, I’d like to save that $500,000 to put him in a nursing home as a condition of parole, take that money, and spend it on either other public safety efforts or prison costs.”

The system as it is, in other words, isn’t benefiting anyone. It’s both deadlier and more financially costly.

And from a moral standpoint, it’s hard for a society to defend these outcomes. “Do we morally think that it is good to have people spend their dying years behind bars, especially for drug crimes from the ’80s and ’90s?” Wessler said. “That strikes me as morally wrong in addition to being bad public policy.”

Tougher penalties turn into de facto death sentences

In many ways, America’s aging prisons are the expected end result of the tough-on-crime approaches and surge in arrests of the 1980s and 1990s.

A study by researchers at the the State University of New York at Albany, the University of Pennsylvania, and the RAND Corporation, found that young people who were locked up in the 1990s spent more time behind bars than any other generation, in large part because of tougher and longer sentences, higher recidivism rates, and escalating punishments for people who are rearrested. And that generation is now aging behind bars, unlikely to ever come out of prison.

“These extreme sentence lengths paired with narrow release mechanisms — meaning fewer ways to actually leave the system — led to this huge crisis of older adults in American prisons,” Eisen, from the Brennan Center, said. “Because what you had is more people coming in, people staying for longer, and then fewer avenues for release because of mandatory minimums, because of three strikes [laws], because of life without parole.”

While many older people in prison today are being sent there for petty crimes, it’s also true that many others, particularly those serving longer sentences, have been convicted of serious crimes. But regardless of what a person is guilty of, the fate of a death behind bars — which can be the result of inadequate medical care and botched treatments — could itself be seen as a cruel punishment, especially when people no longer pose a threat to society.

Take, for example, the case of Walter Jordan, another elderly Arizona prisoner whose story is eerily similar to Richard Washington’s. Jordan, a 67-year-old man who was convicted of first-degree murder and kidnapping, was serving a life sentence. In a memo he wrote to a federal judge in 2017, he alleged that the state’s Department of Corrections and its private health care contractor had delayed his treatment for skin cancer. The memo was, in his words, a “notice of impending death.”

Jordan wrote that he was in pain and suffering from memory loss. He alleged that other prisoners were also being denied care, and he wrote that as a result of his delayed treatment, he would be “lucky to be alive for 30 days.”

Jordan was right: Just over a week later, he was dead. A physician who reviewed his case found that Jordan could have survived had he received adequate care. The situation was “horrific,” the physician wrote. “He suffered excruciating needless pain from cancer that was not appropriately managed in the months prior to his death.”

There are more humane approaches. States and the federal government can start, for example, by expanding eligibility for compassionate release, which truncates sentences but tends to be reserved for people with terminal illnesses. Parole — which can sometimes have unintended consequences including strict rules that often result in parolees being sent back to prison — can also be especially beneficial to elderly prisoners who can get better health care outside of prison. And yet, tough-on-crime laws like those recently passed in Louisiana are making it harder for prisoners to be eligible for parole.

Governors can also make use of their pardon powers and commute sentences for older prisoners who have shown signs of rehabilitation. And instead of readopting a tough-on-crime approach that will likely result in more arrests of older people, states and the federal government can support social safety net programs that would lift older people out of poverty and homelessness, reducing their odds of being arrested in the first place.

America’s jail and prison population peaked in 2008, when more than 2.3 million people were behind bars. And while it has mostly declined since then — especially during Covid, when many prisoners were released as the virus ravaged prisons — it has recently been ticking back up.

“We have far too many people in our prisons,” Eisen said. One of the fastest ways to address that problem is to release older people, who generally don’t pose a public safety risk. “This is a population that shouldn’t be behind bars.”

But until lawmakers acknowledge that the current prison system is failing some of the most vulnerable people in its care, cases like Washington’s or Jordan’s will become all the more common. And more and more people who are now serving time in an American prison will slowly come to learn that their punishment has morphed into a death sentence.

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