Old Age Is No Time to Be Doing Time
A
s Soones and colleagues discuss in this issue of the Journal of the American Geriatrics Society,1 many older individuals at one or more points in their lives take an involuntary journey through the criminal justice system. This lamentable experience often includes a stay in a county or municipal jail. Not surprisingly, Soones and colleagues document that legal professionals who interact with older criminal justice clients are poorly prepared to recognize and address many of the clients’ aging-related needs, especially when (as is often the situation) significant cognitive impairment or mental illness is present. The authors’ proposal for better education and training of legal professionals who work in this context is highly advisable if the legal, health, and social needs of older legal clients are to be served in a way that prevents them from falling through the cracks in the uncoordinated conglomeration of aging services we generously call a system. Although the knowledge and skills deficits found in the referenced study are not startling, nor are the resulting recommendations likely to be controversial, this study provides a useful opportunity for pondering several facets of the fate of older persons caught (quite literally) in jails. First, although some (but certainly not enough) academic and public policy attention has been devoted already to the plight of older prison inmates,2 little has been written before the current study about older people in jail. The distinction between prison and jail, and thus the deficiency of serious attention to the latter, is important. Prisons are total institutions operated directly by individual states or the federal government or operated on behalf of those governmental entities by private contractors to incarcerate adults who have already been found guilty of a criminal offense and sentenced to a period of confinement, usually in excess of 1 year. Prisoners are transferred from local jails, where they have been detained pending resolution of their criminal charges, once a court has definitively resolved their legal situation (with the exception of prisoners who still may have active appeals of their convictions or sentences pending). Prisoners age while in prison. By contrast, jails are local facilities (ranging from five to several thousand beds) operated by city or county governments and whose primary population consists of people who are involuntarily detained while awaiting trial and whose presence in the community pending trial has been deemed to pose a danger to themselves or others.3 Thus, a panoply of crucial legal questions (e.g., mental competence to stand trial and responsibility or culpability for one’s acts) often remain open for the detainee at this DOI: 10.1111/jgs.12755
JAGS 62:775–776, 2014 © 2014, Copyright the Authors Journal compilation © 2014, The American Geriatrics Society
point in the life of someone who has been drawn into the jail environment. Because these legal questions often remain open, legal professionals, such as those that Soones and colleagues studied, occupy a central role. Second, the Soones and colleagues study should inspire contemplation of potential mechanisms for diverting at least some arrested older individuals away from the traditional criminal justice system, with its lack of gerontological sensitivity and competence and its reliance on jails as places of detention. One alternative would be the creation of local specialized elder courts that marshal the particular set of aging-related resources, experience, and expertise desirable for addressing a range of legal problems involving older parties.4 Functioning properly, elder courts may be able to negotiate temporary or permanent resolution of cases involving older criminal defendants in a manner that obviates the need for jail involvement. This innovation could be modeled on other successful criminal justice diversion initiatives already in operation in a number of places across the United States, such as specialized drugs courts5 or mental health courts.6 Whether operating through the context of a specialized elder court or the general criminal justice system, a medical–legal partnership (MLP) program devoted specifically to identifying and addressing the needs of older persons in jails could be beneficial. Although its programmatic embodiment might take a myriad of forms, the basic MLP paradigm is to unite healthcare and legal professionals (or their student counterparts) as co-owners and would-be collaborative solvers of problems experienced by individuals—such as older jail detainees—where health and legal aspects are closely bound together.7 Unlike ordinary referral or consultative models of professional interaction, the MLP is a true partnership, in which the health and legal professional partners jointly serve the needs of the client. An MLP program concentrating on the specific challenges of older jail detainees could help overcome the knowledge and skills deficits of legal professionals that Soones and colleagues document. Finally, and most profoundly, there is something wrong when so many older individuals with severe mental health challenges are at risk of becoming jailed criminal justice system participants in any situation. The prevalence of this population is an indictment of the continuing combined shortcomings of the deinstitutionalization and community mental health movements (movements that, in practice, have largely resulted in transinstitutionalization of mentally ill individuals to jails and prisons),8 coupled with broader discrimination against older persons in services provided and paid for within the mental healthcare
0002-8614/14/$15.00
776
EDITORIALS
system. For instance, when the Department of Health and Human Services recently published regulations implementing the Mental Health Parity and Addiction Equity Act enacted 5 years earlier,9 there was no full parity for older persons; instead, the Medicare limit of 190 paid lifetime days of inpatient mental health treatment remained intact.10 If more older individuals were afforded meaningful access to community mental health services in a timely manner, problems associated with unmet health and social service needs of older jail detainees might be substantially obviated long before those individuals engaged in actions that could draw the negative attention of law enforcement officers. In sum, the prevalence of older jail detainees presents geriatricians and gerontologists with an array of opportunities. Soones and colleagues call our attention to one aspect of the situation: the unpreparedness of most legal professionals to recognize and effectively confront the health and social service challenges that aging participants in the jail component of the criminal justice system face. More education and training of those professionals certainly is desirable, but aggressive, innovative strategies such as elder courts, MLPs, and generally expanded, expedited access to long-term, quality mental health services must supplement educational efforts for legal professionals to keep psychologically vulnerable elderly adults out of the criminal justice system and its courts altogether. Marshall B. Kapp, JD, MPH Center for Innovative Collaboration in Medicine and Law, Florida State University, Tallahassee, Florida
APRIL 2014–VOL. 62, NO. 4
JAGS
ACKNOWLEDGMENTS Conflict of Interest: The editor in chief has reviewed the conflict of interest checklist provided by the author and has determined that the author has no financial or any other kind of personal conflicts with this paper. Author Contributions: M. Kapp is responsible for the entire content of this paper. Sponsor’s Role: None.
REFERENCES 1. Soones A, Ahalt C, Garrigues S et al. “My older clients fall through every crack in the system”: Geriatrics knowledge of legal professionals. J Am Geriatr Soc 2014;62:734–779. 2. Curran N. Blue hairs in the big house: The rise in the elderly inmate population, its effect on the overcrowding dilemma and solutions to correct it. New Eng J Crim Civil Confinement 2000;26:225–264. 3. Discover Corrections, Jails and Corrections [on-line]. Available at http://www. discovercorrections.com/explore/jails-detention Accessed January 29, 2014. 4. Chen LK. Eradicating elder abuse in California nursing homes. Santa Clara L Rev 2012;52:213–253. 5. Hunter S, Douard J, Green S et al. New Jersey’s drug courts: A fundamental shift from the war on drugs to a public health approach to drug addiction and drug-related crime. Rutgers L Rev 2012;64:795–833. 6. Hafemeister TL, Garner SG, Bath VE. Forging links and renewing ties: Applying the principles of restorative and procedural justice to better respond to criminal offenders with a mental disorder. Buffalo L Rev 2012;60:147–223. 7. Tyler ET, Lawton E, Conroy K et al., eds. Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership. Durham, NC: Carolina Academic Press, 2011. 8. Raphael S, Stoll MA. Assessing the contribution of the deinstitutionalization of the mentally ill to growth in the U.S. incarceration rate. J Legal Stud 2013;42:187–221. 9. 78 Federal Register 68240–01 (Nov. 13, 2013). 10. 42 Code of Federal Regulations § 409.62.
A
s Soones and colleagues discuss in this issue of the Journal of the American Geriatrics Society,1 many older individuals at one or more points in their lives take an involuntary journey through the criminal justice system. This lamentable experience often includes a stay in a county or municipal jail. Not surprisingly, Soones and colleagues document that legal professionals who interact with older criminal justice clients are poorly prepared to recognize and address many of the clients’ aging-related needs, especially when (as is often the situation) significant cognitive impairment or mental illness is present. The authors’ proposal for better education and training of legal professionals who work in this context is highly advisable if the legal, health, and social needs of older legal clients are to be served in a way that prevents them from falling through the cracks in the uncoordinated conglomeration of aging services we generously call a system. Although the knowledge and skills deficits found in the referenced study are not startling, nor are the resulting recommendations likely to be controversial, this study provides a useful opportunity for pondering several facets of the fate of older persons caught (quite literally) in jails. First, although some (but certainly not enough) academic and public policy attention has been devoted already to the plight of older prison inmates,2 little has been written before the current study about older people in jail. The distinction between prison and jail, and thus the deficiency of serious attention to the latter, is important. Prisons are total institutions operated directly by individual states or the federal government or operated on behalf of those governmental entities by private contractors to incarcerate adults who have already been found guilty of a criminal offense and sentenced to a period of confinement, usually in excess of 1 year. Prisoners are transferred from local jails, where they have been detained pending resolution of their criminal charges, once a court has definitively resolved their legal situation (with the exception of prisoners who still may have active appeals of their convictions or sentences pending). Prisoners age while in prison. By contrast, jails are local facilities (ranging from five to several thousand beds) operated by city or county governments and whose primary population consists of people who are involuntarily detained while awaiting trial and whose presence in the community pending trial has been deemed to pose a danger to themselves or others.3 Thus, a panoply of crucial legal questions (e.g., mental competence to stand trial and responsibility or culpability for one’s acts) often remain open for the detainee at this DOI: 10.1111/jgs.12755
JAGS 62:775–776, 2014 © 2014, Copyright the Authors Journal compilation © 2014, The American Geriatrics Society
point in the life of someone who has been drawn into the jail environment. Because these legal questions often remain open, legal professionals, such as those that Soones and colleagues studied, occupy a central role. Second, the Soones and colleagues study should inspire contemplation of potential mechanisms for diverting at least some arrested older individuals away from the traditional criminal justice system, with its lack of gerontological sensitivity and competence and its reliance on jails as places of detention. One alternative would be the creation of local specialized elder courts that marshal the particular set of aging-related resources, experience, and expertise desirable for addressing a range of legal problems involving older parties.4 Functioning properly, elder courts may be able to negotiate temporary or permanent resolution of cases involving older criminal defendants in a manner that obviates the need for jail involvement. This innovation could be modeled on other successful criminal justice diversion initiatives already in operation in a number of places across the United States, such as specialized drugs courts5 or mental health courts.6 Whether operating through the context of a specialized elder court or the general criminal justice system, a medical–legal partnership (MLP) program devoted specifically to identifying and addressing the needs of older persons in jails could be beneficial. Although its programmatic embodiment might take a myriad of forms, the basic MLP paradigm is to unite healthcare and legal professionals (or their student counterparts) as co-owners and would-be collaborative solvers of problems experienced by individuals—such as older jail detainees—where health and legal aspects are closely bound together.7 Unlike ordinary referral or consultative models of professional interaction, the MLP is a true partnership, in which the health and legal professional partners jointly serve the needs of the client. An MLP program concentrating on the specific challenges of older jail detainees could help overcome the knowledge and skills deficits of legal professionals that Soones and colleagues document. Finally, and most profoundly, there is something wrong when so many older individuals with severe mental health challenges are at risk of becoming jailed criminal justice system participants in any situation. The prevalence of this population is an indictment of the continuing combined shortcomings of the deinstitutionalization and community mental health movements (movements that, in practice, have largely resulted in transinstitutionalization of mentally ill individuals to jails and prisons),8 coupled with broader discrimination against older persons in services provided and paid for within the mental healthcare
0002-8614/14/$15.00
776
EDITORIALS
system. For instance, when the Department of Health and Human Services recently published regulations implementing the Mental Health Parity and Addiction Equity Act enacted 5 years earlier,9 there was no full parity for older persons; instead, the Medicare limit of 190 paid lifetime days of inpatient mental health treatment remained intact.10 If more older individuals were afforded meaningful access to community mental health services in a timely manner, problems associated with unmet health and social service needs of older jail detainees might be substantially obviated long before those individuals engaged in actions that could draw the negative attention of law enforcement officers. In sum, the prevalence of older jail detainees presents geriatricians and gerontologists with an array of opportunities. Soones and colleagues call our attention to one aspect of the situation: the unpreparedness of most legal professionals to recognize and effectively confront the health and social service challenges that aging participants in the jail component of the criminal justice system face. More education and training of those professionals certainly is desirable, but aggressive, innovative strategies such as elder courts, MLPs, and generally expanded, expedited access to long-term, quality mental health services must supplement educational efforts for legal professionals to keep psychologically vulnerable elderly adults out of the criminal justice system and its courts altogether. Marshall B. Kapp, JD, MPH Center for Innovative Collaboration in Medicine and Law, Florida State University, Tallahassee, Florida
APRIL 2014–VOL. 62, NO. 4
JAGS
ACKNOWLEDGMENTS Conflict of Interest: The editor in chief has reviewed the conflict of interest checklist provided by the author and has determined that the author has no financial or any other kind of personal conflicts with this paper. Author Contributions: M. Kapp is responsible for the entire content of this paper. Sponsor’s Role: None.
REFERENCES 1. Soones A, Ahalt C, Garrigues S et al. “My older clients fall through every crack in the system”: Geriatrics knowledge of legal professionals. J Am Geriatr Soc 2014;62:734–779. 2. Curran N. Blue hairs in the big house: The rise in the elderly inmate population, its effect on the overcrowding dilemma and solutions to correct it. New Eng J Crim Civil Confinement 2000;26:225–264. 3. Discover Corrections, Jails and Corrections [on-line]. Available at http://www. discovercorrections.com/explore/jails-detention Accessed January 29, 2014. 4. Chen LK. Eradicating elder abuse in California nursing homes. Santa Clara L Rev 2012;52:213–253. 5. Hunter S, Douard J, Green S et al. New Jersey’s drug courts: A fundamental shift from the war on drugs to a public health approach to drug addiction and drug-related crime. Rutgers L Rev 2012;64:795–833. 6. Hafemeister TL, Garner SG, Bath VE. Forging links and renewing ties: Applying the principles of restorative and procedural justice to better respond to criminal offenders with a mental disorder. Buffalo L Rev 2012;60:147–223. 7. Tyler ET, Lawton E, Conroy K et al., eds. Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership. Durham, NC: Carolina Academic Press, 2011. 8. Raphael S, Stoll MA. Assessing the contribution of the deinstitutionalization of the mentally ill to growth in the U.S. incarceration rate. J Legal Stud 2013;42:187–221. 9. 78 Federal Register 68240–01 (Nov. 13, 2013). 10. 42 Code of Federal Regulations § 409.62.
