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Abstract

Older adults in prison and within other carceral systems (i.e. jails, parole) are uniquely at risk for elder mistreatment. Emerging research has begun to consider the experiences of older adults within carceral settings, including aging in prison, chronic conditions and medical care, compassionate release, and end-of-life care. This research exposes evidence that prisons and other carceral settings lack resources and services for older adults. Given increased vulnerability and a lack of protective resources, older adults experiencing incarceration may experience disproportional rates and consequences of elder mistreatment. A public health approach to develop tools and resources that would prevent, detect, and intervene in elder mistreatment within prisons requires legal strategies. To date, legal protections that explicitly target elder mistreatment do not exist for correctional settings. Older adults in prisons should not forfeit their rights to be protected from mistreatment because of their incarceration. This Article is part of a larger body of work aimed at understanding the interwoven dynamics relevant to elder mistreatment within prisons. This Article evaluates the Eighth Amendment as a source of protection against elder mistreatment. Section I introduces elder mistreatment within prisons and other carceral settings as a major public health and legal challenge that has been understudied. Section II will provide a primer on elder mistreatment, including how it is defined, across all settings. It will distinguish elder mistreatment in prisons from the general population for older adults living in the community and in residential care settings. Section III will review broad legal protections that apply to all individuals who are incarcerated, including grievance procedures, the Prison Rape Elimination Act, and compassionate release. Section IV will provide an overview of the Eighth Amendment clause that protects against “cruel and unusual punishment.” This section will provide insights on the implementation of standards regarding the right to health care, protection from harm, and living conditions of confinement. Section V applies the Eighth Amendment to older adults experiencing incarceration and identifies limitations of these protections. Section VI will conclude the Article with a research and policy agenda aimed at preventing, detecting, and intervening in elder mistreatment in prisons, jails, and other carceral settings.

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