The Washington PostDemocracy Dies in Darkness

Thousands of prisoners have died of covid-19. Because of the ‘tough on crime’ era, there’s worse to come.

“Three strikes” laws and life without parole mean inmates are aging in prison — long after they’re a threat to society.

Policies that sentenced people to life terms without parole have led to an aging prison population, researchers say. (John Gaines/Burlington Hawk Eye/AP)

The coronavirus pandemic has ravaged many disadvantaged communities. Those include people who are incarcerated; more than 2,700 inmates have died. In no small part, this is a delayed but inevitable consequence of the punitive criminal justice policies of the 1980s and 1990s. That era’s mandatory long prison sentences have slowly transformed many U.S. prisons into what one legal scholar called “maximum security convalescent homes.” And just as nursing homes were ravaged by the pandemic, so were prisons.

As we find in our research, the United States can expect to see more — and costly — health consequences from this increasingly geriatric prison population.

How did we get here?

In the 1980s and 1990s, policymakers in both parties competed to be “tough on crime” by mandating long prison sentences and reducing or eliminating opportunities for parole. In Washington and in every state capital, politicians ramped up punishments that included “three strikes” laws — in which anyone convicted of three felonies could be sentenced to life in prison — and statutes that mandated sentences of life without the possibility of parole. Every state now has such a law. Political scientists Bryan Jones and Frank Baumgartner have described how political leaders can focus on a few aspects of a complicated public policy question, leading to one-sided policies that eventually need to be corrected. We found something similar here.

To justify throwing away the key for hundreds of thousands of incarcerated individuals, significant intellectual groundwork had to be laid. This involved two main steps.

First, the United States had to abandon the idea that prisons rehabilitate. In 1974, sociologist Robert Martinson facilitated this with his National Affairs article “What Works? Questions and Answers about Prison Reform.” The article later became informally known as “Nothing Works!” It concluded that rehabilitation programs are ineffective, something that became widely accepted as fact, although Martinson himself would go on to repudiate this view.

A second major step involved dehumanizing those to be permanently incarcerated. Politicians came to believe that a new generation of “irredeemable” children — called, at the time, “super-predators” — would never be productive adults. Those two beliefs — that a new kind of remorseless sociopath had no chance of redemption — combined to enable policies that put children in prison until their natural deaths, perhaps 60 years later.

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Ignoring the obvious

When U.S. leaders focused on getting tough, they had to ignore some uncomfortable facts. The United States would end up with tens of thousands of septuagenarian prisoners; they would need expensive medical care; they would be vulnerable to violence or exploitation by younger prisoners; their costly continued incarceration would add very little to public safety, as they would be unlikely to reoffend after a certain age; and their large numbers behind walls would involve human rights concerns.

More than 200,000 people in U.S. prisons now serve sentences that they cannot outlive. Our research showed that people who commit crimes leading to long prison sentences tend to be about 26 years old when the crime occurs. Such a person might now be about 56, if the offense took place in 1991 at the tough-on-crime movement’s peak. Twenty years from now, if we see another pandemic, that individual will be 76, suggesting there will be a further wave of illness and death behind bars. The figure below shows the relative shares of youthful and elderly people in U.S. prisons.

Without parole, prisons become infirmaries

In our recently published research, we simulated a prison population with parole, then eliminated parole to see what would happen mathematically. If most individuals come into prison at a relatively young age, and become eligible for parole after serving, say, 20 years, then the prison system never develops a very large number of elderly prisoners. Even with low rates of parole, when an individual is eligible after 20 years, few serve 50 years.

But with no possibility of parole, the number serving extremely long terms, and therefore growing into their 70s and 80s behind bars, expands dramatically. Eliminating the possibility of parole means that what had been unlikely now becomes inevitable. Parole not only offers the incarcerated individual a chance to leave; it also lets the system discharge infirm and elderly individuals once they no longer threaten community safety.

North Carolina’s experience illustrates these trends

Like other states, North Carolina adopted life without parole policies in 1994, part of revisions designed to reduce some crimes’ punishments and increase others. As the figure below shows, the prison population had been expanding rapidly before these changes. Afterward, it declined for almost a decade as fewer individuals served time for relatively low-level offenses. But after about 10 years, the trend reversed. Total incarceration numbers increased dramatically, as happened nationally as well.

While many analysts have critiqued mass incarceration, few have noted the change in the ages of those incarcerated. As you can see, North Carolina’s prisons didn’t add more individuals under the age of 30. All the growth was in the older age groups. What happened wasn’t that more were going to prison. Rather, they were less likely to leave.

Policymakers did not just get tough on crime in the 1980s and 1990s. They ignored costly parts of the picture, leaving their children’s generation to solve the resulting problems. Among other things, these policies made the coronavirus pandemic much worse in prisons than it might otherwise have been. The pandemic has been catastrophic in the nation’s prisons. But if we see another such crisis 10 or 20 years from now, the impact will be much worse as middle-aged prisoners age into their golden years behind bars.

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Frank R. Baumgartner is the Richard J. Richardson Distinguished Professor of Political Science at the University of North Carolina at Chapel Hill.

Tamira Daniely, Kalley Huang, Patrice McGloin, and Niharika Vattikonda are undergraduate students at the University of North Carolina at Chapel Hill.

Kamryn Washington is an undergraduate student at Duke University.

Sydney Johnson and Allison Swagert graduated from the University of North Carolina in 2020 and 2021, respectively.

Alexander Love is a doctoral candidate in political science at the University of North Carolina at Chapel Hill.

Lyle May is a resident of death row in Central Prison in Raleigh, N.C., where he pursues his undergraduate degree from Ohio University and is active as a prison journalist.