Who Are the Old Folks in Prison? Part II

As discussed in Part I, I have gathered data on the Wisconsin prison inmates who are seventy or older. Out of an initial set of 299 inmates, I selected what should be a representative subset of 100 in order to take a closer look at the inmates’ most recent convictions. Thirty-eight of the 100 were convicted of more than one offense in their most recent felony cases. In these cases, I focused just on the conviction that resulted in the longest sentence[1].

In reviewing the offenses of conviction, what stands out most starkly is the prevalence of sexual offenses. Here are the most common statutes, accounting for 78 percent of the cases:
• Wis. Stat. § 948.02 (sexual assault of child)—24 individuals (out of 100)
• 940.01 (first-degree intentional homicide)—18
• 948.025 (repeated acts of sexual assault of same child)—11
• 940.225 (sexual assault)—9
• 346.63 (OWI)—8
• 961.41 (drug offenses)—5
• 948.12 (possession of child pornography)—3

Grouping the 100 cases a little differently, here is a breakdown by offense type[2]:

Offense categories of elderly inmates

Since they made up such a large share of the sample, I decided to dig a little deeper into the older inmates who had convictions for child sex offenses. I found that all of these inmates were white males. The counties of conviction were quite diverse, with the 39 cases coming from 27 different counties.

Since they made up such a large share of the sample, I decided to dig a little deeper into the older inmates who had convictions for child sex offenses. I found that all of these inmates were white males. The counties of conviction were quite diverse, with the 39 cases coming from 27 different counties.

Many of the convictions were relatively recent, with more than one-quarter occurring within the past five years and two-thirds within the past ten years[3]. Given that all of the inmates are currently 70 or older, that means the great majority of convictions occurred when the inmate was already at least in his sixties. Indeed, the average age at the time of conviction was 67.

Notably, the great majority of these child sex offenders (23 of 39) had no other felony cases noted in the DOC data.

A curious phenomenon, then, is the individual who gets through six decades of life without any major run-ins with the law, and then is convicted at an advanced age of an extremely serious child sex crime. This phenomenon seems a major driver of the elderly inmate population, with 28 of the 100 cases in my sample seeming to fit this profile[4].

It should be noted, of course, that a recent date of conviction may or may not correspond with a recent date of offense. It may take several years for an offender to be identified and successfully prosecuted. Delays are perhaps especially common in relation to child sex offenses, which, for a variety of reasons, may go unreported for a long period of time.

Unfortunately, the courts database does not consistently identify offense dates, which means that I cannot tell what proportion of the elderly child sex offenders fit into the old-crime/recent-conviction category, although I did observe in passing that at least a couple of the recent convictions were for offenses that occurred many years ago. Even less can I determine the volume and recency of any uncharged offenses that have been perpetrated by these older inmates. This would, of course, be helpful information to have in the consideration of policy options.

On the whole, sentences for the elderly child sex offenders were quite substantial, especially taking into account age at the time of sentencing. Twenty-nine of 39 were given truth-in-sentencing (“TIS,” i.e., no-parole) sentences. Excluding one who received a life term, the average sentence length was 13.9 years of initial confinement, followed by 10.5 years of extended supervision. Given an average age of 67 at the time of sentencing, it can be expected that some of the sentences are functionally, if not formally, life terms. Among those given indeterminate (i.e., parole-eligible) sentences, the average term length was 18.9 years[5].

Looking at the larger sample of 100, 60 received TIS sentences for their most recent convictions. Excluding four with life terms and one with probation[6], the average TIS sentence is 10.8 years of initial confinement and 8.0 years of extended supervision. Among the 40 with indeterminate sentences for their most recent convictions, at least 13 have life terms. Excluding these and 10 additional inmates for whom sentencing information is not available, the average indeterminate term is 18.4 years. As with the child sex offender subset, inmates in the larger sample tend to have sentences that are consistent with an extremely serious offense, a long criminal history, or both.

Twenty-four of the 100 have release dates within the next two years, and 38 within the next five years[7]. Others will have to wait much longer to get out–in many cases, a decade or more remains on the initial term of confinement.

Overall, from the standpoint of potential policy change, it strikes me that the child sex offenders represent a large and distinct subset of the elderly inmate population that warrants its own, separate analysis–ideally informed by considerably more information than I currently have. The elderly inmates serving life terms for first-degree intentional homicide also represent a distinct, sizable subset that should probably be considered separately—these are the inmates who have committed what is often considered the most serious offense, but they also tend to be the inmates with the oldest convictions (most were convicted more than two decades ago, and several more than three decades ago).

Together, the child sex offenders and the first-degree intentional homicide offenders make up nearly 60 percent of the elderly inmate population. The remaining elderly inmates reflect a great deal of diversity with respect to offense severity, criminal history, time of most recent conviction, sentence length, expected release date, and parole eligibility. An appreciation for this diversity should inform the public conversation about compassionate release and other mechanisms that might provide for a return of elderly inmates to the community. Additionally, an awareness that a substantial minority of elderly inmates are serving time for quite recent convictions should perhaps prompt some consideration of prevention and diversion initiatives that might help to keep some of these older individuals out of prison in the first place.

[1] “Longest sentence” was based on the combined length of prison and extended supervision terms (or just the prison term for the offenses not covered by Wisconsin’s truth-sentencing law). I treated a probation sentence as having a length of zero, unless probation was revoked and a prison sentence then imposed. Occasionally, two (or more) counts “tied” for longest sentence; in those cases, I focused on whichever count appeared first in the court record.

[2] Child sex offenses include violations of §§ 948.02, 948.025, 948.06, and 948.12. Homicide offenses include §§ 940.01 and 940.02. Alcohol and drug offenses include §§ 346.36 and 961.41. Other violent offenses include §§ 940.19, 940.21, 940.23, 940.31, 941.30, 943.32, and 943.87. Other sexual offenses include § 940.225. Miscellaneous offenses include §§ 943.02, 943.10, 943.20, 946.31, 946.42, and 948.04.

[3] The reference point is mid-2018, when the data were collected.

[4] This figure includes 21 who had no other felony cases in the DOC data, and seven more who had a slightly earlier or contemporaneous felony case that also resulted in a first felony conviction after the age of 60. A caveat, of course, is that there may have been other, earlier felony cases that, for one reason or another, do not appear in the DOC data.

[5] This figure excludes one inmate for whom no sentencing information could be found.

[6] The inmate who got probation for his most recent conviction is apparently in prison because supervision was revoked in an earlier case.

[7] By release date, I mean the date indicated in the DOC data for release to extended supervision (TIS sentences) or mandatory release (indeterminate sentences).

Who Are the Old Folks in Prison? Part I

Nationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged sixty or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4%) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to serve primarily as hospitals or nursing homes, and which tend to be located in rural areas at some distance from specialized treatment facilities.

Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.

In order to develop a clearer picture of this population, and with the help of two diligent research assistants[1], I gathered a substantial body of data on the Wisconsin prisoners who are aged seventy or older. In some respects, the information surprised me, although I should be clear upfront that our data also leave many important questions unanswered. I suspect that both sides in the compassionate release debate will find at least some support for their positions in what follows.

A word about methodology: data were collected in the summer of 2018 from the on-line offender locator maintained by the Department of Corrections, searching for offenders by birth year. Note that these data only include individuals who are held in state institutions; those who are detained in local jails are not part of this study. For a subset of our offenders, as indicated below, additional data were collected from the Wisconsin courts database.

We identified 299 inmates who were at least seventy years old. The average age was 74.6, with a high of 101. The group also included two nonagenarians. Only eight (2.7 percent) were women. By contrast, 6.3 percent of the overall adult prison population is female. Women are thus substantially underrepresented among the oldest inmates.

As to race, the group was about 83 percent white, 16 percent black, 1 percent Native American/American Indian, and less than 1 percent Asian. By contrast, the overall adult inmate population is only about 53 percent white, indicating that whites are substantially overrepresented among the oldest prisoners[2].

Even more than such demographic information, I was keen to gather data about the criminal history of the elderly inmates. However, this requires some painstaking cross-referencing of the DOC and courts databases. For present purposes, I contended myself with taking a closer look at a 100-person sample of the original 299[3].

In the sample of 100, the average age is 74.5. Three percent are women, 84 percent are white, and 16 percent are black. The sample thus seems demographically very similar to the overall group of 299.

Not surprisingly—since this is the standard path to prison—all 100 have faced felony charges in at least one case[4]. At least 50 have faced felony charges in multiple cases[5], broken out as follows:
• 2 cases—9
• 3 cases—22
• 4 cases—10
• 5 cases—6
• 6 cases—2
• 7 cases—1

There is, to be sure, a great deal of criminal history among the 50 offenders with multiple cases—they average about 3.5 felony cases per offender, and each case may include multiple charges (more about the charge data below). It seems likely that many of these elders are in prison now because the sentencing judges in their most recent cases found the length of their rap sheets to be quite worrisome.

But what are we to make of the other half of the sample—the offenders who apparently faced sentencing in their most recent case without a prior felony conviction? Presumably, since they are all now in prison, many of these offenders were convicted of extremely serious crimes during their one experience in felony court[6].

In order to get a better sense of offense severity and recency, we collected additional data about each offender’s most recent felony case[7].

This cut at the data also conveys some sense of where the oldsters in prison come from. Our sample of 100 offenders actually presents a surprising degree of geographic diversity, with the most recent convictions occurring in forty-five different counties. Eighteen were convicted most recently in Milwaukee County, which seems lower than expected, given that more than one-third of overall prison admissions in Wisconsin have come from Milwaukee in recent years. The underrepresentation of Milwaukee in the older cohort may help to explain the underrepresentation of blacks, given the concentration of Wisconsin’s black population in Milwaukee County. In any event, following Milwaukee as a source of elder inmates were Kenosha (eight of the 100), Dane (seven), and Waukesha (six). Collectively, it seems that smaller, rural counties are overrepresented in the older cohort.

As to date of conviction, there was also extraordinary variation, from May 1973 to July 2018. Fully one-quarter of the sample had convictions that were less than three years old. Clearly, it is a mistake to assume that all or nearly all of our older inmates are serving out very long sentences for very old crimes. Many have committed offenses while in their sixties or even older. On the other hand, a substantial minority (29 percent) have gone 20 years or more without a fresh conviction. It is the old inmates with old convictions who may most warrant a careful reexamination if we are concerned with the efficient use of scarce prison beds—based on general patterns of declining recidivism risk over time, it is likely that at least some of the old-old’s present little ongoing threat to public safety.

In my next post, I will explore the offenses of conviction in a more detailed way, as well as sentencing and expected release dates.

[1] I am grateful to law students Lance Duroni and Mitchell Kiffmeyer for their painstaking data-collection efforts.

[2] Ethnic categories like Hispanic or Latino are not broken out in the DOC data.

[3] In selecting these 100, I excluded three inmates who were not serving prison sentences, but were instead either on a community corrections hold at the Milwaukee Secure Detention Facility (two) or in civil commitment (one).

[4] The DOC data also indicate that at least 17 had at least one misdemeanor case.

[5] This figure is based on charges in the DOC database, which may be an undercount. For instance, if a case resulted in an acquittal or a sentence that did not involve any commitment of the defendant to DOC custody or supervision, it is not clear to me that the case would show up in the DOC data.  

[6] For what it’s worth, the DOC data indicate that 5 of these 50 had at least one prior misdemeanor case, including three who had two misdemeanor cases.

[7] “Most recent” was determined by reference to which felony case in the DOC data had the most recent date of conviction. Occasionally, we came across individuals who had two separate cases with convictions on the same date. In these circumstances, I focused on the case with the longest sentence (prison plus extended supervision). For these purposes, I treated a probation sentence as having a length of zero, unless probation was revoked and a prison sentence then imposed. In cases with multiple counts of conviction, and hence multiple sentences, I went with the count that had the longest sentence.

Crime and Stigma: New Research Explores the Connections

The colonial Americans famously had their “scarlet letter” punishments, which marked and shamed the criminal. Today, the stigma of a conviction may be less vividly displayed, but it is no less real. Two interesting new criminological articles present research on the impact of this stigma.

First, an article by Jeff Bouffard and LaQuana Askew considers potential crime-reducing benefits of stigma, specifically in relation to sex offender registration and notification (SORN) laws. Such laws, adopted across the United States in the 1990s, require certain convicted sex offenders to register their residence and other information with state authorities on an ongoing basis, sometimes for the rest of their lives. The information is then made publicly available, which can greatly magnify the duration and intensity of the stigma of the conviction.

It was thought that SORN laws might reduce sexual offending in two ways: by deterring prospective offenders from committing crimes that might land them on a registry, and by alerting potential victims to the proximity of individuals who were already registered and hence possibly dangerous. However, several studies thus far have found little or no reduction in offending in the wake of the adoption of SORN legislation.

Continue reading “Crime and Stigma: New Research Explores the Connections”

SCOTUS End-of-Term Roundup: Causation Cases

Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.

The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   Continue reading “SCOTUS End-of-Term Roundup: Causation Cases”

Nearly Two-Thirds of Sex Assaults Go Unreported, New Data Show

Earlier this month, the Bureau of Justice Statistics released new data on unreported crime from the National Crime Victimization Survey.  Among other things, the data demonstrate the limitations of the FBI’s uniform crime reporting system, which even in theory only captures crimes that come to the attention of police.

There is a great deal from the BJS report that merits highlighting, but I’ll focus here just on the under-reporting of sexual assaults.  This was the second-least reported type of crime covered in the report.  The non-report rate for theft, the least reported crime, was only slightly higher, 67% to 65%.  By contrast, the non-report rate for car theft was only 17% and robbery 41%.

It is not surprising that theft leads the way in non-reporting, because theft is often a quite minor crime.  Indeed, 31% of the theft victims who did not report the crime to police identified as the main reason that the crime was not important enough to them.  Another 35% said that they thought the police could not or would not help; presumably, this perception, too, is largely a function of the minor nature of the crime.

What drives the non-reporting of sexual assault seems to be a quite different set of dynamics.   Continue reading “Nearly Two-Thirds of Sex Assaults Go Unreported, New Data Show”

Sentencing and the Limits of Actuarial Risk Assessment

As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.   Continue reading “Sentencing and the Limits of Actuarial Risk Assessment”

It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds

As William Dinkins, a Wisconsin sex offender, approached the date of his release from prison, he was obliged by state law to provide an address at which he would be residing upon his release.  The problem is that he did not have a home, and there was no one willing to take him in.  Despite his efforts and those of a social worker to line up a place for him to live, when he missed the deadline to report a post-prison residence, the state prosecuted him under Wisconsin’s sex-offender registration law, which makes it a felony for a sex offender to “knowingly fail[] to comply with any requirement to provide information.”

The trial court found Dinkins guilty as charged and gave him 90 days in jail.

Although framed as a “failure to provide information,” Dinkins was, for all intents and purposes, convicted and punished for being homeless.  Or more precisely, I suppose, he was punished for being a homeless sex offender.  Either way, this seems functionally a status crime, and status crimes are unconstitutional under Robinson v. California, 370 U.S. 660 (1962).

Continue reading “It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds”

Seventh Circuit Approves 30+ Years for Possession and Covert Production of Kiddie Porn

Last week, in United States v. Klug (No. 11-1339), the Seventh Circuit upheld a whopping sentence of 384 months for producing and possessing child pornography.  This sentence was actually below the guidelines’ recommendation of life.  Notably, for a case involving such an extraordinarily long sentence, there is no allegation that Klug coerced the child subjects of the pornographic videos he created, or that they were sexually molested.  Rather, the videos were made covertly, mostly involving showering, changing clothes, using the bathroom, and the like.  Moreover, Klug disguised the faces of the subjects before circulating their images.

Of course, what Klug did was very wrong, and if the kids ever find out that these sorts of images of them were circulated on the Internet, they would be well justified in feeling violated.  Still, in challenging the substantive reasonableness of his sentence, Klug may make a fair point that the district judge’s decision leaves little meaningful difference in the punishment for what he did and what the producers of violent, hard-core child pornography do.

Although not using the term, Klug apparently framed this argument as one of marginal deterrence: if we give 30-year sentences to producers who don’t molest their subjects, there’s no reason not to molest.

Continue reading “Seventh Circuit Approves 30+ Years for Possession and Covert Production of Kiddie Porn”

Sentencing, Stereotypes, Porn, and Plain Error

Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders.  (For earlier cases, see here and here.)  In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt — 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”

The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.”  No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view.  But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.

But did this really rise to the level of plain error, as the Seventh Circuit held?

Continue reading “Sentencing, Stereotypes, Porn, and Plain Error”

The Retroactive Reach of SORNA

Through the Sex Offender Registration and Notification Act, Congress made it a federal crime for sex offenders who travel in interstate commerce to fail to comply with state laws for sex offender registration.  Congress provided for retroactive application of the new law to those who were convicted of sex crimes before the law took effect in 2006, but did so through some ambiguous language whose meaning has sparked much debate and litigation.  Earlier this week, the Supreme Court resolved at least one of the retroactivity disputes in Reynolds v. United States (No. 10-6549).

As the Supreme Court described it, here was Reynolds’ situation:

Continue reading “The Retroactive Reach of SORNA”