A Principled Approach to Separating the Fusion Between Nursing Homes and Prisons

Article by: Professor Mirko Bagaric, Marissa Florio, & Brienna Bagaric

44 PEPP. L. REV. 957 (2017)

Elderly people are a far lower risk to community safety than other individuals.  Despite this, elderly prisoners are filling prisons at an increasing rate.  The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades—far more than the general imprisonment rate.  This trend is empirically and normatively flawed.  Older offenders should be treated differently from other offenders.  The key reason for this is that elderly offenders reoffend at about half the rate of other released prisoners, but the cost of incarcerating the elderly—due to their more pressing health needs—is more than double.  The maturity and infirmity of most elderly offenders mean that they present a far lower risk to community safety than other offenders do.  The sentencing system should be reformed to properly accommodate elderly offenders’ relevantly different situation.  This Article argues that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and by using progressive forms of punishment, especially electronic monitoring.  These reforms will not make communities less safe, but they will reduce the fiscal burden on the sentencing system and enhance the normative integrity of the sentencing process.

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Sexual Violence as an Occupational Hazard & Condition of Confinement in the Closed Institutional Systems of the Military and Detention

Article by: Hannah Brenner, Kathleen Darcy, & Sheryl Kubiak

44 PEPP. L. REV. 881 (2017)

Women in the military are more likely to be raped by other service members than to be killed in combat.  Female prisoners internalize rape by corrections officers as an inherent part of their sentence.  Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases.  This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military.  The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization allow for sweeping discretion on the part of system actors.  This Article recommends a two-part strategy to better make victims whole and effect systemic, legal, and cultural change: the use of civil lawsuits generally, with a focus on the class action suit, supplemented by administrative law to enforce federal rules on sexual violence in closed systems.  This Article strives to break down the walls that separate these different closed systems into silos, toward an end of shifting laws and policy to better address the multi-faceted problem of sexual victimization.

 

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