Framing Never-Ending Punishment

In assessing how the political system developed oversimplified ideas about punishment in the 1980s and 1990s, it is important to look below the political system to the professional community of experts. The development of a consensus from the professional community is key, because political leaders typically do not have the expertise to adjudicate among competing professional perspectives (see Walker Reference Walker1977, Kingdon Reference Kingdon1984). Political leaders and policymakers focus on the problems (e.g., the need to “do something” about crime) and look to experts within the professional community to offer solutions. As Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017) explain, an apparent professional consensus may represent a perspective accepted by the dominant players in a professional community, but by no means by everyone. Indeed, those on the losing side of the debate may start immediately on the work to bring their perspective back to influence and power.

The first dramatic step along this discredited path was the publication by criminologist Robert Martinson in Reference Martinson1974 of an article entitled “What Works? Questions and Answers about Prison Reform” (Martinson Reference Martinson1974). Martinson participated in a team of three scholars reviewing hundreds of studies from 1945 through 1967, evaluating prison rehabilitative programs of all sorts. Their conclusions, more fully reported in book form (Lipton, Martinson, and Wilks Reference Lipton, Martinson and Wilks1975), suggested that rehabilitative programs had not been conclusively demonstrated to reduce later recidivism. While the book was nuanced, the article that popularized it was not.

The influence of the 1974 Martinson article can be illustrated with a review of a report to the U.S. Senate as that body considered a comprehensive crime bill in 1983. Traditionally, sentencing guidelines assumed four purposes of incarceration: deterrence, incapacitation, just punishment, and rehabilitation (U. S. Senate 1983, 6 7). The 1983 bill removed rehabilitation from that list. Not long after this shift, the U.S. Supreme Court upheld federal guidelines that eliminated rehabilitation from sentencing considerations. The Court quoted the 1983 Senate report as fact: “The Report referred to the ‘outmoded rehabilitation model’ for federal criminal sentencing, and recognized that the efforts of the criminal justice system to achieve rehabilitation of offenders had failed” (Mistretta v. United States 1989, 366). A professional consensus had reached the highest levels of the government. The Senate and the Supreme Court agreed that rehabilitation was irrelevant, perhaps impossible. Previous generations of policy had assumed it was fundamental to the purpose of incarceration (see Morris and Rothman Reference Morris and Rothman1995).

The framing of “tough on crime” policies included the idea of the juvenile “super-predator.” A spike of young people committing violent crimes in the 1990s fostered anxiety that academic John J. DiIulio injected into the mainstream with his Reference DiIulio1995 article “The Coming of the Super-Predator.” The racial aspects of DiIulio’s concept are explicit. For one, he writes that those he dehumanized actually dehumanized their victims and used racial epithets in describing them: “And they place zero value on the lives of their victims, whom they reflexively dehumanize as just so much worthless ‘white trash’ if white, or by the usual racial or ethnic epithets if black or Latino.” (DiIulio Reference DiIulio1995). But the author goes further: “Among other puzzles, the moral poverty theory explains why, despite living in desperate economic poverty, under the heavy weight of Jim Crow, and with plenty of free access to guns, the churchgoing, two-parent black families of the South never experienced anything remotely like the tragic levels of homicidal youth and gang violence that plague some of today’s black inner-city neighborhoods.” “There is even some evidence that juveniles are doing homicidal violence in ‘wolf packs’ … often murdering their victim in groups of two or more” (DiIulio Reference DiIulio1995).

Of course, by 2000, crime was going down and DiIulio later recanted, saying he was wrong to make predictions about crime rates in the first place (see Becker Reference Becker2001). Martinson (Reference Martinson1979) also disavowed his highly-cited conclusions, saying they had been overstated. But in both cases, the cat was out of the bag. This “research” was just what some politicians wanted to hear and was too widely cited for others to ignore. For a recent review of the powerful impact of DiIulio’s arguments, see Bogert and Hancock Reference Bogert and Hancock2020; for a similar review of Martinson, see Sarre Reference Sarre2001.

Ignoring the Counter-Arguments

The concept of the “super-predator” was contested even as it came to dominate the discourse. As Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017) describe, professionals whose views were being ignored by policymakers during the 1980s and 1990s were nonetheless making arguments and publishing dissenting views. What arguments were ignored? The fact that never-ending punishment would mean that thousands would grow elderly in prison; that many of these were children at the time of their incarceration; the health needs of geriatric prisoners; the high cost of incarcerating the elderly; the low public safety benefit of incarcerating individuals after they reach a certain age; and the disproportionality of three-strikes laws.

In an exchange of articles presenting opposing views on three-strikes laws, Nkechi Taifa (Reference Taifa1995) presents four arguments: That such a law is too punitive for minor felonies, that it may violate the Eighth Amendment proportionality clause, that it may discriminate against African Americans, and that it is too expensive. She notes expense in two ways: growing incarceration expenses as prisoners age (noting that the elderly may be three times as expensive to house as younger prisoners), and the high cost of incarceration weighed against lower odds of reoffending among elderly prisoners. In response, Morton Feldman (Reference Feldman1995), the Executive Vice President of the National Association of Chiefs of Police, argues that costs simply don’t matter: the law will focus on “violent” offenders,Footnote ¹ and these people should be incarcerated no matter the cost. Taifa notes that the policies will require the government to “keep elderly men and women incarcerated through their seventies, eighties, and nineties” (Reference Taifa1995, 723). As Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017) note, just because one set of professional ideas reaches ascendancy and is congenial to policymakers at a given moment means neither that it is correct nor the object of a consensus.

Several scholars targeted the issue of the cost of incarcerating elderly prisoners. Ronald Aday (Reference Aday1994) gives an overview of the various adjustments corrections officials needed to make as elderly prison populations explode: a) greater need for medical attention; b) special programs and facilities, such as special diets, 24-hour nursing care, and different work programs; c) building new facilities or altering old ones to accommodate residents with limited mobility; and d) protecting older prisoners who are vulnerable to attack by younger prisoners (see Vega and Silverman Reference Vega and Silverman1988). Numerous studies (including McCarthy Reference McCarthy1983; Gewerth Reference Gewerth, McCarthy and Langworthy1988; Marquart, Marianos, and Doucet Reference Marquart, Merianos and Doucet2000; and Fazel et al. Reference Fazel, Hope, O’Donnell, Piper and Jacoby2001; LaMere, Smyer, and Gragert Reference LaMere, Smyer and Gragert1996) indicated that the average geriatric prisoner suffers from at least one (often several) chronic health conditions, and that people sentenced to LWOP present even greater health risks due to higher rates of mental illness, substance abuse, physical abuse, and less access to adequate health care throughout their lives. Long prison terms create over-crowding, of course, or require the construction of costly new prisons. Wright notes that “if society considers true life-without-parole sentences to be meaningful and appropriate punishments for murder, society also may need to think in terms of designing some prisons as ‘maximum security convalescent homes’” (Reference Wright1990, 564).

In sum, the 1980s and 1990s saw an apparent professional consensus, projected to the White House, the Senate, the Supreme Court, state legislatures, and policymakers, that a new kind of criminal had emerged, that rehabilitation was impossible, and that we had no choice but to adopt the toughest punishments the world has ever known. Dissenting voices screamed out through the professional journals, but to no avail. While the complexity of the situation was never lost on the professionals, policymakers wanted to do something dramatic. With public support, they adopted the laws we experience today.

Media Frames

One reason that the public and the nation’s political leaders supported tough-on-crime policies is the media’s use of the super-predator and other inflammatory frames. Local media coverage has been known to follow the maxim “if it bleeds it leads,” reflecting an overemphasis on crime, particularly violent crime (see Gilliam et al. Reference Gilliam, Iyengar, Simon and Wright1996; Beale Reference Beale2006; Britto and Noga-Styron Reference Britto and Noga-Styron2014; Seeds Reference Seeds2018). However, a typical reader would be exposed to little discussion of the geriatric prison crisis to come. Our review of news coverage of policy questions related to life without parole using the Nexis-Uni database identified a total of 1,772 stories from 1982 to 2019. Of these, only 2.65% had any mention of aging of the prison population as a result of life without parole; the vast majority of the stories adopted the “irredeemability” or the “tough on crime” frame (refer to table A-2 in the online appendix for our search terms and the number of articles associated with each).

In our analysis, those few articles discussing aging in the context of LWOP included critiques of LWOP bills pointing out such things as “the bill would make prisons into geriatric wards for criminals and hold them way beyond the time they pose a realistic threat to society” (Capital Times 1994). These remarks, however, were infrequent and, when they did occur, they did not fully capture the humanitarian and monetary cost of imprisoning elderly individuals. Though politicians would point to the fact that it was “easy to see that life without parole will create gigantic geriatric prison wards” (Hunter Reference Hunter1994), they rarely talked about the realities of large parts of the prison population being confined to a bed due to age-related illness for extended parts of their sentences. There may be two sides to every story, but when it comes to discussions of crime policy in the media, one side is stronger than the other.

The Impact of Eliminating Parole: A Mathematical Simulation

One of the most important policy reforms of the "tough-on-crime" era was eliminating parole. This reform had large and predictable consequences that we can illustrate by simulating age distributions in prison populations under otherwise identical scenarios, one with parole and one without. Our simulation has 1,000 individuals enter prison in each time period, with mean age at entry of twenty-six and standard deviation of 3. Individuals exit prison only by death or parole; our simulation ignores those serving short terms. We use an age-specific mortality rate based on CDC (2020) estimates; annual morality increases from 0.07% for the youngest group up to 19% for those aged ninety and over. (These rates are likely higher in incarcerated populations.)

In our parole simulation, individuals become eligible after twenty-five years and 10% those eligible earn parole annually. (These precise values are not of primary interest. Rather, the comparison of parole and no parole is.) After iterating the simulation many times, each system reaches an equilibrium age distribution. In figure 3, we simulate a system with parole for 100 time periods, then eliminate parole. Bars indicate the numbers of prisoners of different age groups: below 30, over 60, and in between. In both cases there is a transition period before the system reaches equilibrium. The first is not of interest. The second, however, reflects where we are today, not even yet at where the system inevitably will lead us.

Figure 3

Simulated prison population with parole, then without

Eliminating parole increases the total prison population by over 50%, increases the median age by over nine years, and generates a four-fold increase in the share of older members in the prison population. All of these are purely mathematical; no further policy is required other than the elimination of parole. We present one simulation here, but we have run many. No matter what specific parameters are used, eliminating parole causes a population to grow larger and older—so much so that those aged 60 and over quickly outnumber those under 30 (refer to the online appendix for additional simulations). In the next section, we make clear that we are transitioning to a new demographic reality in U.S. prisons, one entirely understandable by the fact of eliminating parole.

The Beginnings of the Geriatric Explosion in U.S. Prisons

By reviewing prison population statistics, we find support for the trends detailed in the previous section. We use data available through the National Corrections Reporting Program, which provides data on state and federal prisons (not local jails) from 1999 through 2016 (United States Department of Justice 2018). Figure 4 shows the distribution of ages of incarcerated individuals across the nation.

Figure 4

The changing age distribution of the U.S. prison population

Looking at the top two age groups in figure 4, it is clear that over time, they grow to be a much larger share of the prison population. Younger groups represent a correspondingly smaller share of the total over time. If we define older prisoners as those aged 55 or higher, and youthful ones as those aged eighteen to twenty-four, we can compare the two groups directly; see figure 5.

Figure 5

The elderly now outnumber the young

Figure 5 shows that the elderly now outnumber the young in the nation’s prisons. A quick glance at figure A-1 in the online appendix, based on our simulations, shows that the trends in figure 5 are precisely what one could expect from the policies we have discussed.

Of course, the trends in figures 4 and 5 are national, but each state adopted these policies at slightly different times. It is instructive to review the experience of a single state in some detail, looking at how the demographic trends in prison population reflect, with a predictable time lag, the elimination of parole and the adoption of longer sentences. North Carolina increased the severity of punishment for many crimes in the 1990s. Sentencing reforms effective in 1994 eliminated the traditional concept of parole and enhanced the length of punishment for the most serious crimes, while reducing punishment levels for other crimes. We make use of publicly available data from the North Carolina Department of Public Safety (refer to the online appendix for more detail).

In 1975, 140 individuals were serving sentences of over fifty years in North Carolina; by 2020 this number had increased to 3,820. Figure 6 shows the age distribution of prisoners in each year from 1975 to the present.

Figure 6

Age distribution of North Carolina prison population

In 1975, 6,934 individuals, over half of the 12,727 individuals incarcerated, were under the age of 30; just 366 individuals were aged 60 or older. By 2020, the number of older prisoners had increased to 3,038, whereas the number of those under the age of 30 had declined to 5,368 (despite the rapid rise in total prison population that figure 6 makes clear). Prisoners in their 30s, 40s, and 50s grew substantially as well. Figure 7 breaks down the group of prisoners aged 50 and over to show the dramatic rise in those over fifty beginning in the late-1990s, almost immediately following the implementation of the 1994 sentencing reform.

Figure 7

Population aged 50+, 60+, and 70+ in North Carolina prisons

The number of prisoners aged fifty and older, which had never been above 1,500 before 1990, rose to almost 9,000 in 2018. Those sixty and older increased from fewer than 500 in every year before 1988 to over 3,000 in 2020; those over seventy numbered fewer than 100 in every year before 1987, but rose to 650 by 2020. These changes in ages are more due to shifts in sentencing policies, particularly the dramatic rise in the numbers of people serving very long sentences, than they are due to increased age of entry. On average, the median age at entry is 34 both for those currently incarcerated as well as for those incarcerated at any time since 1975.

Finally, these policies dramatically affect the racial mix of the prison system. Blacks represented fewer than 45% of those admitted to North Carolina prisons from 1975 until the late 1980s, but their share grew to over 55% in the years following reform. Nationally, Nellis and King (Reference Nellis and King2009) document similar trends: Blacks were 37.5% of the general prison population, but 48% of those serving life sentences and 56% of those serving LWOP. In North Carolina, over 75% of those serving “habitual felon” or “violent habitual felon” sentences are Black (see Baumgartner and Johnson Reference Baumgartner and Johnson2020).

So far, we have made our arguments with numbers. In the next section we illustrate the human aspect of the policies we have been describing.

Virtual Life without Parole

Carl was twenty-one in the late 1990s when he and two friends, high on methamphetamines, went on a robbery and shooting spree. While no one died, Carl and his friends were charged with attempted murder, armed robbery, evading the police, and other felonies. Once arrested, Carl’s co-defendants testified against him in exchange for twenty-year plea-bargains. At trial, the jury convicted Carl on every charge. A judge gave Carl 127 years in prison.

With no release before his 85% minimum in the year 2107, Carl continued doing in prison what he had on the street. There was no incentive to do otherwise. Carl abused any available drugs, fought other prisoners, and assaulted staff. He spent more time in solitary confinement than at work. The lack of programs and extended periods of solitary confinement eroded his mental health.

Twenty years later, maturity calmed Carl’s desire to fight and rebel. At the age of 43, he considers whether another stint on lock-up is worth the next rule infraction. Usually his answer is no. In another twenty years, if Carl survives his life choices, chronic disease will cripple him—hepatitis C or HIV from IV drug use, hypertension and heart disease from a poor diet, and arthritis from decades of sleeping, sitting, and walking on concrete and steel. The costs of his continued incarceration will be much higher than those of younger prisoners and bear little relation to the public safety benefits they generate. Long after the victims, prosecutors, and co-defendants have moved on with their lives, Carl will still be in prison. If we consider that he may have aged out of crime in his fifties, Carl would still have sixty-seven years to serve.

LWOP as Mercy

LWOP is the second most punitive sentence available for first-degree murder and only alternative to the death penalty. LWOP is the standard sentence for anyone who pleads guilty to avoid the death penalty and therefore represents the “mercy” offered to capitally sentenced juveniles, mentally ill, and intellectually disabled defendants.

Jimmy was convicted of homicide as a teenager in 1976 and received a parole-eligible life sentence from which he earned release after seventeen years in prison. A hyperactive, mentally ill, and intellectually disabled man, Jimmy struggled to keep a job. He had difficulties interacting with people because he rambled and jumped topics in conversation, and had poor hygiene habits. While on parole, Jimmy began using crack and absconded. Not long after, in the grips of a binge, Jimmy got into an argument and killed a woman who had been abusing drugs with him. This time he was charged with first-degree murder and sentenced to death.

On death row, away from drugs and alcohol, Jimmy’s mental deficiencies were apparent. He had few friends because he failed to comprehend ordinary rules of conversation, was anxious, excitable, and easily influenced. Staff and prisoners abused Jimmy’s agreeableness and eagerness to be liked, coaxing him to do and say things he might not do or say on his own. One time a warden called him out to “perform” for the amusement of a tour group, asking Jimmy to sing and dance for them. The warden knew of Jimmy’s disability.

Everyone who knew Jimmy questioned why he was not in a hospital. It took his appellate attorneys twenty years to prove Jimmy’s intellectual deficiency and for a court to agree. His death sentence was commuted to LWOP, condemning a sixty-three-year-old man with a low IQ to an often predatory and violent general prison population where the old and weak are frequently victimized. There are no special programs for intellectually disabled or mentally ill people who receive LWOP. Being resentenced to LWOP was the only “mercy” that Jimmy received.

COVID and Prison Health Care

Smokey had been on death row since the early 1990s for a shootout with law enforcement officers that resulted in the death of two innocent bystanders. Though they were unintentional deaths, any homicide committed in the act of another felony is a capital offense.

While Smokey appealed the decision, he grew old and sick. Hepatitis C from IV drug use, hypertension, diabetes, and an infection that collapsed both lungs hospitalized Smokey over a dozen times in three years. When he turned 66 in 2020, Smokey began experiencing symptoms of a stroke. He complained to a nurse, who informed him that unless he was unconscious or bleeding, only COVID-19 patients were being seen. Later that evening, Smokey had two strokes and was hospitalized.

During the pandemic, prisoners with chronic illnesses have been denied routine check-ups. As a result, emergency hospital visits have increased. In November 2020, over twenty prisoners from one North Carolina facility—most of them over age fifty-five—required emergency care. Each of them required two custody staff as escorts, which drew much-needed personnel away from an already understaffed prison. The cost of incarcerating elderly prisoners is high because they have a greater need for medical attention and special care, as discussed earlier. When medical needs are not addressed, they worsen, generating greater costs and affecting other areas such as the safety and security of a facility. Since security is paramount, the aged prisoners’ medical needs can be ignored, generating conditions inconsistent with the Constitution’s prohibition on cruel and unusual punishments.

Preferring Death

Jay was convicted and sentenced to death for a 1986 murder and second-degree sexual assault. High and strung out on drugs when he committed the crimes, he found sobriety, clarity, and remorse while incarcerated. Jay felt deeply responsible for the harm he caused to the victim and her family, doing his best to atone by leaving behind the person he used to be.

After six years, Jay’s death sentence was overturned on appeal. While awaiting a sentencing hearing in the general prison population, Jay availed himself of every rehabilitative program offered. One of those included the Shaw University Cape Program, which provided a bachelor’s degree in business to eligible prisoners who completed the requisite course work. Jay did so, earning his bachelor’s degree shortly before the 1994 Violent Crime Control and Law Enforcement Act eliminated federal funding for college programs in prison. Jay was resentenced to death.

Back on death row, Jay tried to use what he learned to help other prisoners, teaching some to read or engage in the difficult process of accepting responsibility for their crimes. Jay watched his three children grow older in photos and did his best to stay in touch through letters. Prison is not designed to help families maintain their bonds. After fourteen years in prison, his first grandchild was born. After thirty-two years, his first great-grandson was born.

At age sixty-four, Jay often wonders if he will get a second chance. Since he was convicted under the Fair Sentencing Act, which provides parole-eligible life sentences for murder, a reasonable chance for release exists. When his death sentence was overturned on appeal, Jay rehabilitated himself, maintained ties with family, and became a model prisoner. He did everything the parole board requires of prisoners except, when Jay’s sentencing hearing occurred in 1995, it was at the height of the public concern about crime. Though Jay’s crimes were no different from other offenders who received parole-eligible life sentences, he was caught up in the national trend to “throw away the key.”

Life without Parole

Kyle was sentenced to death for two gang-related murders that occurred in his late teens. On death row, Kyle grew out of the irrational choices of his youth, maturing around aging prisoners and staying out of trouble. Because Kyle’s co-defendants pled guilty and testified against him in exchange for reduced sentences, and he had a learning disability, a judge resentenced Kyle to LWOP.

Once in the general prison population, Kyle discovered most rehabilitative programs are for prisoners with release dates. The only jobs he could hold as a lifer were on the road squad cleaning up trash and storm debris, working in the kitchen, in the prison warehouse, or as a janitor. If he stayed infraction-free in medium custody, Kyle might even have gotten on a waiting list for the Inmate Construction Program, travelling on a prison bus around North Carolina to refurbish old prisons or build new ones.

Whatever the job, forced labor would not make up for his lack of education. Nor would working 40–60 hours a week for forty cents a day make up for the lack of family and friends. Kyle scraped by one day, week, month, and year at a time until the thought of never getting out, of growing old and infirm in prison, exhausted his ability to resist depression and despair. His daily existence was the misery that makes many lifers wish for death. Nearly twenty years into Kyle’s permanent incarceration he was discovered dead in his cell, the result of an accidental drug overdose or an intentional suicide; the world will never know. Kyle’s unclaimed body was buried in a local cemetery.