« Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? | Main | SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues »

June 23, 2022

"Nothing but Time: Elderly Americans Serving Life Without Parole"

The title of this post is the title of this new report from The Sentencing Project. Here is most of the executive summary and recommendations from the start of the report:

Prisons are a particularly hazardous place to grow old.  The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison.  Nearly half of prisons lack an established plan for the care of the elderly incarcerated....

Warnings by corrections budget analysts of the crushing costs of incarcerating people who are older have gone almost entirely unheeded. Indeed, sociologist and legal scholar Christopher Seeds accurately described a transformation of life without parole “from a rare sanction and marginal practice of last resort into a routine punishment in the United States” over the last four decades.  And in the contemporary moment of rising concerns around crime, there are reasons to be concerned that ineffective, racially disproportionate, and costly tough-on-crime measures such as increasing sentence lengths will proliferate, leading to even higher numbers of incarcerated people who will grow old in prison.  In this, as in many other aspects of its carceral system, the United States is an outlier; in many Western democracies those in their final decades of life are viewed as a protected class from the harsh prison climate.

Older incarcerated people describe sentences of life without the possibility of parole (LWOP) — with the expectation that they will die in prison — as particularly cruel, involving a devastating loss of human dignity.  Considering the consistent observation across dozens of studies that people “age out” of criminal conduct, the dedication of resources toward a group that is of extremely low risk is a foolish investment.  Yet people serving LWOP are a growing share of the overall life-sentenced population and the number of people in prison serving LWOP is at an all-time high.  While LWOP sentences have been a sentencing component of the American punishment spectrum for much of its existence, recent mandatory and preferential imposition of life sentences with no chance for parole are a more prominent feature than ever.  In 2020, The Sentencing Project produced a 50-state survey of departments of corrections that revealed that more than 55,000 Americans are incarcerated in state and federal prisons with no chance of parole, reflecting a 66% rise in people serving LWOP since 2003.

Because compassionate release, whether based on chronological age (geriatric parole) or diagnosis of a terminal illness (medical parole), typically excludes people serving life sentences by statute, the only option for an early release for people serving LWOP is executive clemency.  While clemency was common for older people serving life sentences sixty years ago, it was nearly terminated by the 1970s, and is still rarely used today.

This report explores the features of the LWOP population in more detail, focusing on the aging demographic in particular.  The data presented in this report reflect the patterns of 40,000 people serving LWOP sentences across 20 states.  These 20 states reflect three quarters of the LWOP population nationwide. The main findings in this report are the following:

• Almost half (47%) of the people serving LWOP are 50 years old or more and one in four is at least 60 years old.

• In ten years, even if no additional LWOP sentences were added in these states, 30,000 people currently serving LWOP will be 50 or older.

• 60% of the elderly imprisoned serving LWOP have already served at least 20 years....

• Half of aging people serving LWOP are Black and nearly 60% are people of color....

• The majority of people serving LWOP have been convicted of murder, but a growing share of the overall LWOP population has been convicted of less serious crimes, reflecting an over-expansion of LWOP.

We make a series of recommendations for reform based on the research presented in this report:

• Reinstate parole or resentencing opportunities for those currently ineligible.

• Give added weight to advanced age at review hearings. Advanced age considerations should begin at age 50 in light of the accelerating aging process that accompanies imprisonment.

• Allow immediate sentence review with presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.

• Revise medical parole release statutes to include all incarcerated people regardless of crime of conviction and age.

• Upon release, transition elderly persons, including those who have been convicted of a violent crime and those who are serving LWOP and other life sentences, to well-supported systems of community care if they are too frail to live independently.

• Require states to disclose the cost of incarcerating elderly people, including the cost of all medical care, as well as projections for future costs. Failing in such fiscal transparency keeps taxpayers in the dark about the true cost of mass incarceration.

• Expand clemency release opportunities to reflect their higher usage in earlier eras.

June 23, 2022 at 09:33 PM | Permalink


For the last 20 years, we have heard from the same crew that we do not need the death penalty because LWOP will keep society safe from them (not true unless you don’t consider other inmates and prison staff to be part of society).

Just as I and others like me such as Bill predicted, LWOP would be the next target once they did their best to dismantle the death penalty.

What a bunch of dishonest bellends.

Posted by: TarlsQtr | Jun 23, 2022 10:55:10 PM

TarlsQtr --

Nailed it. For years, they promised that if the DP were abolished, we'd replace it with life without parole, so we could rest assured that the killer would NEVER, EVER get out.

So what do we hear now? "Gosh, these fellows we have in for LWOP eventually become old. [Big surprise there]. We need to be compassionate and let them out!!!"

These guys show no embarrassment about doing this 180 principally because the defense bar is simply incapable of embarrassment.

Posted by: Bill Otis | Jun 24, 2022 12:03:07 AM

B&T, For folks so committed to individual responsibility, you both seem quite ready to attribute, say, The Sentencing Project's views to people advocating against the DP in an individual case on behalf of an individual and vice versa. Why not have the intellectual rigor to point out "hypocritical" views held by one individual on behalf of that individual (and not his/her client), rather than diverse views offered by a diverse group of people addressing diverse circumstances/contexts?

I'm guessing you might not be surprised to learn that, speaking for myself, opposition to the DP and LWOP have a lot to do with a belief that redemption should not be foreclosed as a possibility for any person. As Justice Alito pointed out in the oral argument in Jones v MS, that belief is common to every major religion and is very uncontroversial. Why, then, should it not be a policy basis for opposing punishments that are premised on the idea that redemption is not possible? I'm not saying it will always happen, but why give up on the possibility?

I'll wait here while you reach for some stones to throw.

Posted by: John | Jun 24, 2022 1:05:11 AM

"John" --

1. If you want to pretend that there's any appreciable policy daylight between the Lefties at the Sentencing Project and the ones in the DP abolitionist lobby, you go right ahead. But not having been born yesterday, it's a pretense I decline to join.

2. I trust your embrace of religion as the touchstone of preferred public policy leads you to applaud the Court's decision this week in Carson v. Makin. Would I be right about that? As for redemption, I'm all for it, but whether a person achieves redemption (or has any interest in achieving it, which most of them don't as you know) has nothing to do with the sentence given to him by secular law.

3. If you had any "intellectual rigor," as you put it, you'd hardly feel the need preemptively to dodge any retort to your views by this gem of faux superiority: "I'll wait here while you reach for some stones to throw."

Posted by: Bill Otis | Jun 24, 2022 9:58:35 AM

Hi Bill - The Sentencing Project is pointing out a valid point - that locking up criminals with longer and longer sentences costs more as criminals age. Limiting prison sentences to 25 or 30 years and restricting LWOP to a more restrictive class of criminal (serial killers, terrorists) will help alleviate those costs and provide a greater incentive for individuals to reform in prison. Incarceration must be reserved as a last case resort (diversion programs and community based programs should be the primary response to crime) and we should recognize the fact that prisons often serve as breeding grounds for more crime (the recidivism rate which you have often cited is between two thirds and three quarters within 3 to 5 years) and often produce diminishing returns as criminals age (most criminals eventually age out of crime and locking up criminals past 35-45 years old serves a diminishing social purpose). Brett Miler

Posted by: Brett Miler | Jun 24, 2022 10:14:49 AM


Redemption is not dependent on one’s location (in prison or not). Even if it were so, please give a workable definition of “redemption” and an objective measure of it.

Posted by: TarlsQtr | Jun 24, 2022 11:01:50 AM

TarlsQtr --

"Redemption" is when the criminal completes two courses in basket weaving, hasn't beaten up his girlfriend for 30 days straight, and gets a letter from his lay "pastor" saying that he has "found God."

John and people like him think we don't know how the "redemption"scam actually works. And when I was a kid, I didn't. But that's been a while.

Posted by: Bill Otis | Jun 24, 2022 11:28:23 AM

What do the death penalty abolition folks think about proposed reforms like this? They take an important arrow out of the capital defense lawyer's quiver -- not only do the attorneys lose the chance to argue that there is zero chance (absent extraordinary clemency) that the defendant could be released and harm someone in the free world, I think the prosecutors have to be allowed to argue that the DP is the only way to reliably ensure the defendant's permanent incapacitation from harming anyone outside the prison. Otherwise, they might be released in as few as ten years ("presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.")

As far as the charges of hypocrisy, I would submit that it is inappropriate for a murderer to get both the benefit of having the LWOP law in existence (because the jury would have chosen the DP over life with presumptive parole at 50) and the benefit of having it repealed. For that reason, I tenatively think that anyone who received an LWOP sentence for a capital-eligible offense -- including by plea bargain in which the prosecution took the DP off the table -- whose sentence is eligible for reduction under a reform like this should have to go before a jury empowered to decide whether to reduce the sentence from LWOP to life with parole. While they might get the benefits of both enactment and repeal, at least a jury would have decided to grant that relief.

Posted by: Jason | Jun 24, 2022 4:35:52 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB