Sentencing Policy, Community Sentences, & Female Older Offenders
Denis Bracken - Faculty of Social Work, University of Manitoba
Older Offenders & Criminal Justice
The criminal justice system is predicated on and built around the assumption that offenders are overwhelming young and male.
Much of the literature on desistance says that males “grow out of crime”
This occurs through some process that includes: the realization that the offender doesn’t want to die in jail; the “love of a good woman” theory; opportunities for a job, education, etc. But this doesn’t always happen.
Older Offenders & Criminal Justice
Two trends worthy of particular note with an impact on older offenders:
These were initially introduced as part of the movement away from the “tyranny” of indeterminate sentences.
The sentence is related to the crime committed, not to the characteristics of the offender, or some blending of the two.
Judicial Discretion is severely limited if not completely removed
Mandatory Minimum Sentences
Also curtailed, if not quite removed, is the possibility of early release, as in some kind of parole or other supervised, possibly gradual, release.
A study by Julian Roberts of the U. of Ottawa classified MMS into three categories:
Mandatory Minimum Sentences
mandatory sentences of imprisonment that allow no discretion below or above a specific sentence. These are usually reserved for murder;
mandatory minimum sentences of imprisonment that require courts to impose a sentence of at least “x” years. Courts may impose a harsher sentence up to the statutory maximum but are not allowed to impose a sentence below the minimum prescribed (the Canadian firearms mandatory sentences as well as a few other offences, fall into this category);
mandatory sentences of custody that permit the court to impose a lesser, or even non-custodial sentence in the event that exceptional circumstances exist (the mandatory sentences in England , Wales and South Africa are examples of this kind of mandatory sentence)
Mandatory Minimum Sentences
These also include the “three strikes and you are out” sentences
Such sentences are based on a third conviction for a serious offence (felony, indictable, etc.) In California, it is 25 years to life.
In these cases, judicial discretion is usually severely restricted.
Mandatory Minimums & the “New Punitiveness”
The media-inspired demand for longer sentences, despite the general drop in over all crime rates in Western countries, suggests that prisons will be/ already are housing people for longer periods than before.
There is also a decline in the acceptance of early release/time off for good behaviour as a tool for institutional management, a way to reduce offender populations &/or part of rehabilitative plan may keep people in longer.
Sentencing of older offenders
Do older offenders “get a break” when they get to court?
If they so, do older female offenders get a bigger break than older male offenders?
The answer to both questions appears to be “yes” at least based on some US data
Sentencing of older offenders
A 1988 study of plea bargaining in US federal courts found that offenders over 60 who plea-bargained their case received sentences less than half as severe as younger counterparts.
The disparity was greater with non-violent crimes, but even with violent crimes there appeared to be an impact.
Sentencing of older offenders
In a major study in 2000 using Pennsylvania and Federal courts data, older offenders convicted of non-drug offences (mostly property and violent offences) were more likely to receive probation than their younger counterparts
For those incarcerated, the age effect is strongest in terms of sentence length for property offences, and less so for violent or drug offences.
Sentencing of older offenders
The same study also found that:
Older male & older female offenders were sentenced more leniently than their same gender but younger counterparts, when prior record and seriousness of the offence were taken out.
On drug offences, the net effect on sentence length is not as strong as on other offences
Sentencing of older offenders
Age resulted in greater leniency for both male and female older offenders.
The “elderly advantage” was clearest for males when compared to sentences for younger male offenders. In other words, older women received more lenient sentences than younger women, but the difference was stronger for older men than older women.
Older Women Offenders
Finding data on older women offenders in prison is difficult, as the numbers are seen as too small to merit significant attention
A Stats Canada study from 1999 showed that 2% of female inmates in Federal custody were over 55. The percentage was the same for female provincial inmates.
Older Women Offenders
More recent CSC data on female offenders in Federal Penitentiary:
If given a community penalty (probation, community service, fine, etc.) or if released on parole or other early release program, how are older offenders seen by the system?
Older persons on a limited income may not be able to handle a large fine
Older persons may also not be in a position to take part in community service schemes which require physical labour
A 1994 American study of older offenders on probation in one American state found them to be overwhelmingly male, with 18% convicted of a sex crime and 32% convicted of driving under the influence, and half of all offenders were being supervised at a minimum level, irrespective of their assessed risk to reoffend.
Conclusions
The need for further research and for training in the area of working with the elderly exists in all parts of the correctional system
A system developed to deal almost exclusively with young male offenders needs to focus some attention on older, and older female offenders.
