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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Victimhood & Agency: How Taking Charge Takes Its Toll

Article by: Pam A. Mueller

44 PEPP. L. REV. 691 (2017)

This Article addresses an unexplored tension in the civil justice system regarding victims.  The goal of the civil system is to make victims whole.  We can, as is most common, attempt to do this financially, or we can consider psychological research that suggests there may be other ways of restoring victims’ statuses.  One of the most common nonfinancial solutions is to increase victim participation in the justice process.  This is a solution that appeals to many victims and may benefit them psychologically.  However, by increasing their participation, they may unknowingly trade off some of the benefits of victimhood.  For instance, they may be awarded less financial compensation and may even be blamed more for their own victimization.  Part II of this Article discusses financial and nonfinancial strategies for making victims whole in the civil justice system.  Part III addresses the paradoxical nature of victimhood in this system, and Part IV suggests that the psychological construct of agency may shed light on the issues victims face.  Part V presents three empirical studies suggesting there are unanticipated consequences for victims who play an active role in the justice process, which may have serious ramifications for their recovery.  The Article concludes with a discussion of the policy implications of these results, the limitations of the current studies, and future directions for this line of research.


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