Overview Cameo House Community Options for Youth (COY) Detention Diversion Advocacy Program (DDAP) Expert Witness, Court Navigation, & Sentencing Mitigation Services Juvenile Collaborative Reentry Unit (JCRU) No Violence Alliance (NoVA) Overview Technical Assistance California Sentencing Institute Next Generation Fellowship Legislation Transparency & Accountability

At John Jay University’s recent criminal justice conference, I was given a report issued last month by Human Rights Watch on a topic of great interest, Old Behind Bars.” My enthusiasm for HRW’s documented concerns about the rapid aging of America’s prison population diminished considerably as its authors indulged increasingly nasty comments about young people that detracted from its larger message. 

HRW’s report is well worth obtaining for its outstanding array of statistics detailing the mammoth growth in prisoners age 55 and older, from 7,000 in 1979 to 33,000 in 1995 and 124,000 by 2010. The exhaustive tables and charts supply much needed perspective for policy analysis of why US prison populations have aged so rapidly and what specific steps are needed to address and reduce the epidemic of aged prisoners who are exorbitantly costly in both human and fiscal terms. 

Unfortunately, readers will have to draw their own conclusions, because the HRW authors are clearly reluctant to confront the revolutionary implications of their data. Where liberal/​left criminal justice advocates (of which I count myself one) have addressed the reasons for prisoner aging, they have reflexively blamed it on our policy nemeses (which I agree are nemeses): lengthy mandated sentences, primarily for drug offenses and under California’s disastrous Three Strikes law, that keep more offenders locked up into twilight years. 

However, the HRW report largely demolishes that point. Of the prisoners who were ages 51 or older in 2009, more than half were age 51 or older, and three-fourths were ages 41 or older, when they were first admitted to prison. Only 8% were under age 30 at time of admission and serving life or near-life sentences for crimes committed at young ages. So, Three Strikes and enhanced sentences are only marginally responsible for the proliferation of graying convicts. 

The real reason is that the number of older persons who are arrested has been increasing,” HRW notes, reluctantly. Despite their own data showing that entering prison at an older age” is by far the biggest reason for the aging of the prison population, HRW authors dedicate only two brief paragraphs to this cause and dismiss it as perhaps…a natural concomitant of the overall aging of the US population.” 

NO! FBI reports show arrests of Americans age 40 and older for serious, Part I violent and property felonies and drug offenses skyrocketed from 212,000 in 1980 to 725,000 in 2010, an arrest surge far exceeding anything predicted by the overall aging” of the US population. In fact, younger ages have shown large arrest declines. It’s long past time for interest groups like HRW to cut out the pretenses and confront clear, albeit uncomfortable, realities: the prison population has aged because the arrestee population has aged rapidly. Nearly two-thirds of prison inmates age 55 and older have been convicted of violent crimes. 

Beyond this obfuscation, the most disturbing problem with the HRW report is its blatant ageism and its racist subtext. The report notes that 54% of prisoners age 55 and older are non-Latino whites, while 75% of prisoners under age 30 are black, Hispanic, and other nonwhite. (The Bureau of Justice Statistics’ latest report finds inmates age 50 and older are 2.2 times more likely to be non-Latino White than inmates under age 25). I’ve been around the block with the other groups on this issue, most notably the Sentencing Project in their atrocious 2001 report on Three Strikes: Valid, needed advocacy for reducing the aging prison population need not and should not degenerate into unwarranted attacks on the young and dark-skinned.

The ugly allegations in the HRW report, whose authors admit a lack of data to sustain them, feature a rash of undocumented slurs (“young guys will do stupid stuff,” knuckleheads,” gangbangers,” crime is a young person’s game,” and so on). In their zeal to document older inmates’ suitability for more lenient treatment, shorter sentences, and earlier release, HRW authors ignore two crucial issues: (a) given the large racial, class, and generation gaps between old and young, harsh statements about younger people cannot be presented uncriticallyl without careful screening for ageism and racism, and (b) the justice system should be founded in individualized evaluation, not blanket demographic prejudices. 

Whether one deserves greater protection from other inmates, reduced sentences, or early release can be evaluated according to a set of objective criteria applied to individual cases. True, a frail inmate in a wheelchair, whether age 75 or 25, should not be subjected to victimization by violent prisoners due to physical vulnerability. An older white parolee may well have lower recidivism risk than a younger African American parolee, but whether that is due to lesser criminality or simply lesser police scrutiny remains a valid question for investigation. If objectively applied criteria wind up favoring this or that group, so be it, but that does not justify age- or race-based preselection. 

Given the explosion in middle-aged arrests, which the HRW report should have noted, it is no longer true that crime is just a young person’s game.” Our recent study in Justice Policy Journalbegan the exploration of whether the prejudicial assumption that young people are more crime prone” simply reflects researchers’ failure to control for the much greater poverty levels and differing demographics of young people compared to older ones, a project of which we hope human rights groups will take note. 

That in 2012, a group with human rights” in its title, claiming sensitivity to bigotry and advocacy for humanitarian causes, would indulge crude ageist and racist stereotyping against the young (and, by implication, nonwhite) is troubling. There are plenty of solid arguments based on scientific criteria – we at CJCJ like to think we have advanced a few – for sharply reducing prison populations and treating inmates (including aging ones) in more humane ways without resorting to nasty cracks about young people. Human Rights Watch and other reformers need to reflect on their tactics in a rapidly changing, multicultural America in which traditional assumptions about crime and social problems have become increasingly destructive.