Exploring the Impact of Gender on Early Release Decisions
for the Graying Inmate Population
by Sapphire Hilton, Dominican College
Abstract: Carson and Sabol (2016) report a 400% increase of prisoners age 55 and older from 1993 to 2013. In an effort to address the graying prison population and prison overcrowding concerns, recent scholarship and legislation has focused on the early release of elderly inmates to allay health care costs, improve prisoner safety, and minimize potential shortcomings of prison staff training. However, the literature also shows a lack of research pertaining to whether and how legal (i.e., severity of crime and prior convictions) and extra-legal factors (i.e., race and gender) influence release decisions for inmates. While each of these factors is salient, this study seeks to determine whether release decisions for the graying inmate population can be affected by the inmate’s gender. Participants were given a hypothetical scenario about an elderly inmate serving a life sentence for murder and were told that the state would no longer be giving life sentences. Then, participants were asked to predict an age that the inmate should be released. There were two conditions—one scenario included a male elderly inmate and the other a female elderly inmate. Based on the extant literature about chivalry in the criminal justice process especially in sentencing decisions, it is hypothesized that respondents will designate an earlier age of release for female inmates compared to male inmates. This study complements and extends research on gender as a discretionary factor in the criminal justice system. Specifically, it aims to address possible issues of unwarranted disparity in critical criminal justice decisions, which may help stimulate future prison reform.
Recent circumstances surrounding the COVID-19 pandemic has increased the number of compassionate releases among inmates, in the United States. Amid fears of the rapid spread of the virus in prisons and jails, various counties and states have released thousands of inmates in the past few weeks (Kindy, Brown, & Bennett, 2020). Prior to the pandemic, it is safe to assume that most Americans have never heard of compassionate release and may be unaware of the processes and guidelines surrounding inmates’ circumstances. The compassionate release program began in 1987 and was designed for inmates with terminal illness, advanced age, sickness, deliberation, or extreme family circumstances. As long as the circumstance outweighs the continued imprisonment, compassionate release may become a viable option for prison administrators. Carson and Sabol (2016) report a 400% increase of prisoners age 55 and older from 1993 to 2013. In an effort to address the graying of the prison population and prison overcrowding concerns, recent scholarship and legislation have focused on the early release of elderly inmates to allay health care costs, improve prisoner safety, and minimize potential shortcomings of prison staff training. However, the literature lacks research pertaining to if and how any extra-legal factors, namely gender, can influence release decisions for inmates.
This study complements and extends the research on gender as a discretionary factor in the criminal justice system. Specifically, it aims to address possible issues of unwarranted disparity in the criminal justice process. This study seeks to explore whether gender disparities are present in early release decisions for elderly inmates, as gender disparities have been seen in various areas of the law. In what follows, the literature is broken into three subgroups: 1) Compassionate Release 2) Elderly and the Criminal Justice System 3) Gender and Leniency Trends. Following the literature review, the methods section explains the scenario and survey procedures. Then, the results section displays the analyzed data of the collected survey responses. Lastly, the discussion portion follows with limitations, suggestions for future research, and the conclusion.
Recent academic scholarship and popular literature have focused on the compassionate release of inmates. In this section I discuss scholarly articles to shed light on the following topics related to my study: elderly and leniency and gender disparities and sentencing trends. Compassionate release is the process of early release of an inmate based on extraordinary circumstances or factors such as physical health, illness, and/or mental health. These circumstances allow for the release of an inmate prior to the end of their sentence.
A major factor focused on when assessing the consideration of compassionate release is overall health. Boothby and Overduin (2007) found that there is an overall negative image towards prisoners and compassionate release. There seems to be common negative perceptions of inmates as a whole that attribute to opinions about compassionate release. The researchers performed a study on undergraduate students that focused on factors considered for compassionate release and people’s opinions towards it. The participants answered a questionnaire regarding attitudes about three topics: compassionate release, prisoners, and diseases spread in prison. Based on the data, the participants believed that only dying inmates should receive compassionate release.
Another factor evaluated when assessing the views towards compassionate release is the factor of mental health. Often it is believed that inmates struggling with mental health issues are considered for compassionate release and assumed to be treated more leniently in the criminal justice system. The chances of issues surrounding mental health also increase the older the inmate gets. Majekodunmi and colleagues (2017) assessed the prevalence of depressive symptoms and comorbidity in inmates over the age of 50. The inmates evaluated in this study were interviewed using a questionnaire based on sociodemographic, forensic, and medical history, then assessed for the presence of depression. The study found 25% of the participants showed depressive symptoms and 50% suffered from some sort of health problem. This also demonstrates that mental health issues are not only factors considered in compassionate release decisions but also are prevalent among the elderly inmate population.
Elderly and the Criminal Justice System
Inmates ages 55 and up are now the fastest growing age group in the U.S. prison population (Carson & Sabol, 2016). As there has been a considerable increase of the graying inmate population, various factors have played a role in the growth and subsequent compassionate release decisions. Rikard and Rosenberg (2007) explored the rapid growth in the elderly inmate population and examined the causes and factors associated with it. The authors found that from the 1900s to 2000s life expectancy increased from 47 to 68, due to advances in medicine and technology. Therefore, there is an overall increase of Americans ages 65 and older. In addition to the rapid increase of the elderly inmate population, age is portrayed as an underlying factor in the possible compassionate release policies.
In addition to age impacting compassionate release decisions, Champion (1987) also found it influenced leniency trends relating to sentencing and probation and parole. Furthermore, it is believed that elderly offenders may receive leniency and/or a “pass” because of their age. Additionally, a common social perception is that elderly individuals are less dangerous and posing no threat to society or communities around them. Furthermore, many may sympathize with elderly inmates because of their age indicating certain punishments are too severe for someone of such age. Champion (1987) studied the rate in which elderly offenders committed crimes correlating with the severity of their sentences. Areas with lower proportions of elderly crime rates imposed harsher sentences and sanctions.
Turner and Champion (1989) found that age can be a determining factor in sentencing decisions. In their research study, older offenders received lighter sentences for the same or similar crimes than younger offenders. Wilbanks (1988) focused on the processing phase of older offenders in comparison to younger offenders to assess if elderly offenders were treated with more leniency at the processing level as well. Wilbanks found that depending on the stage within the criminal justice system, offenders’ treatment varied. Moreover, elderly felons were treated more harshly than younger felons through the conviction phases. However, during the sentencing phase, the elderly offenders were treated with more leniency compared to the younger offenders. These findings point to discrepancies in the leniency trends found among elderly offenders.
Gender disparities in the criminal justice system are not new and have been seen in various areas of the law, throughout history according to Britton, Jacobsen and Howard’s (2018) review of literature. The authors note that gender has historically served as the basis for explicit discrimination in criminal law. In addition, they point out that gender disparities are prevalent in all stages of the criminal justice system- policing, courts, and corrections.
Gender plays a major underlying role in the impact of one’s sentencing decisions. It is believed that depending on one’s gender, his or her sentences may be more or less lenient. This accounts for some of the gender disparities present in sentencing decisions. According to Freiburger and Hilinski (2009), women offenders, regardless of their race or age, typically receive more lenient sentences than male offenders. When comparing similar offenses, the gender disparity seems to be present in sentencing but not in the length of time served. When examining more serious offenses, such as homicide, these same gender disparities seem to still be prevalent (Fridel, 2019). The results of Fridel’s (2019) study indicated that even when considering prior convictions, women are substantially less likely to receive a harsher sentence than their male counterparts. This illustrates that even when committing the same offenses, separately or together, the gender of the offender affects the ultimate sentence.
In addition to sentencing decisions, gender stereotypes impact perceptions about criminal behavior and criminal tendencies. One notable study by Hendree and Nicks (2000), discussed differences in attribution of criminal behavior based on the gender and sex of the offenders. Based on their findings, women were seen to attribute criminal behavior based on situational factors whereas men were attributed based on their aggression. This confirms the stereotype of males being more aggressive than females. However, when exploring gender-bias of offender on jurors, there was no significant effect of gender-crime congruency of the juror’s decision-making process (Maeder, McManus, Yamamoto & McLaughlin, 2018).
This study seeks to answer if release decisions for the graying inmate population may be gendered. Participants were given a hypothetical scenario about an elderly inmate serving a life sentence for murder. There were two conditions: one scenario included a male elderly inmate and the other included a female elderly inmate. The two scenarios were distributed randomly to all participants. Participants were told that New York State was no longer giving life sentences and asked to predict an age that the inmate should be released. It was hypothesized that the respondents would designate an earlier age of release for the female inmate compared to the male inmate. Participants then answered questions based on compassionate release factors followed by demographic questions.
The participants of this experiment were students from a small, private Northeastern college enrolled in a General Psychology class. There were 74 participants, all required to be 18 years of age or older. Participants in this experiment ranged from ages 18-34. The average age was 20 years old. The most common age was 19 years old. Of the participants in the experiment, 73% were female and 27% were male. The participants included students in all years of school. The freshman class was represented the most in the experiment at 50%. The second largest represented class was sophomores at 29.7%. Then, followed the junior class at 16.2% and finally the senior class at 4.1%. The participants majored in various areas of study, with the top three being nursing (35.1%), psychology (10.8%), and criminal justice (9.5%).
The goal of this experiment was to determine if gender is a determining factor in the early release of elderly inmates. The first step was to help the participants to understand compassionate release by having them read one of the two scenarios. One of the scenarios was conditioned to have a male offender and the other was conditioned to have a female offender. After reading the scenario, the participants were asked to predict an age that the offender should be eligible for compassionate release. Participants were then asked to answer questions assessing determining factors of compassionate release and their views on compassionate release. The questionnaire included questions such as “At what level of incarceration would you be more likely to release an elderly inmate?” and “Should the number of prior offenses determine if an inmate is eligible for compassionate release?” Lastly, participants were asked to rank the eight Uniform Crime Report (UCR) index crimes on a scale from 1-10, based on eligibility for compassionate release. The questionnaire also contained demographic questions.
Dominican College Institutional Review Board approved the following experiment in Spring 2020. Participants were first provided with an informed consent form stating that the purpose of the study was to examine the factors related to the early release decisions for inmates. Participants were then given one of the two scenarios: scenario A or scenario B. The two scenarios both looked at an offender sentenced to life for a murder being considered for compassionate release. However, the two scenarios varied in the gender of the offender being considered for compassionate release. Scenario A illustrates a scenario where a male offender is sentenced to life for a murder. He has served 25 years of his sentence and may be eligible for possible compassionate release. Scenario B illustrates a scenario where a female offender is sentenced to life for a murder. She has served 25 years of her sentence and may be eligible for possible compassionate release. Based on the scenario the participants were asked to predict an age that the offender should be eligible for compassionate release. Participants were then given the questionnaire. The questionnaire first assessed what factors participants would consider when determining what offenders should be eligible for compassionate release. Next, the questionnaire asked participants to rate the eight UCR index crimes (i.e., murder, rape, robbery, aggravated assault, arson, burglary, larceny-theft, motor vehicle theft) on a scale of 1-10, from least likely to most likely, of eligibility for compassionate release. Lastly on the questionnaire, demographic questions were included for participants. After completing the study, a debriefing statement was given to each participant. The debriefing statement informed the participants of the true purpose of the experiment. It communicated that deception was included in the study to avoid bias and that each scenario was hypothetical. The debriefing statement also included contact information if there were any questions or concerns, as well as additional reading on compassionate release.
Note: Other majors include Biology, Business, Communication Studies, Computer Information Systems, Education, Health Science, International Management, Liberal Arts, Natural Sciences and Mathematics, Occupational Therapy, Social Science, Social Work, and Sports Management.
Compassionate Release Factors
Table 2 displays various factors that may influence one’s decision on compassionate release for offenders. First, participants were asked to determine compassionate release for inmates based on age or medial issues. The findings indicate that 79.7% of participants would release an inmate based on medical issues. The remaining 20.3% of participants would consider compassionate release for inmate based on the age of the inmate. Participants were also asked what types of crimes would be most likely to be considered for compassionate release. The findings show that 85.1% of the participants would consider compassionate release for non-violent crimes, and 1.4% of the participants would consider compassionate release for an offender who committed a violent crime. Additionally, 13.5% of the participants responded, “It doesn’t matter”, indicating that they had no preferences on the type of crimes.
Table 2 also displays the level of incarceration in which participants would be most likely to consider an inmate for compassionate release. The findings indicate that 58.1% of participants would be most likely to consider compassionate release for an inmate incarcerated on a state level, and 9.5% of the participants would be most likely to consider an inmate in a federal level for compassionate release. In addition, the findings indicate that 32.4% of the participants responded, “It doesn’t matter.” Finally, participants were asked about prior offenses being taken into consideration for compassionate release. The findings indicate that 79.7% of participants believed prior offenses should be considered, and 20.3% believed prior offenses should not be considered. Of the 59 participants who indicated yes, prior offenses should be considered for compassionate release, the most frequent number of offenses to be considered was three. The number of offenses ranged from 0-10, with a mean of 3.49.
Ranking of Crimes for Compassionate Release
Figure 1 displays participants’ ranks for consideration of compassionate release of the eight index crimes, on a scale of 1-10, with 1 being least likely and 10 being most likely. The findings indicate that the average ranking for rape was 1.81, murder was 2.04, arson was 4.08, aggravated assault was 4.18, burglary was 5.39, larceny/theft was 5.59, robbery was 5.89, and motor vehicle theft was 6.13. This shows that rape was the crime that participants found least likely to be considered for compassionate release. Motor vehicle theft was the crime that participants found most likely to be considered for compassionate release.
Gender as a Predictor of Compassionate Release
Figure 2 displays the average age that participants indicated for early release of a male offender and a female offender. The findings indicate that the average age for early release of female offenders was 65.61. The average age given to male offenders for early release was 66.16. The average age predicted by participants for the early release of a male offender compared to female offender was only approximately a year difference. Furthermore, a t-test comparing group means failed to reveal a statistically significance difference between the mean age for compassionate release for males (M=66.16, SD= 16.10) compared to females (M=65.61. SD=11.74); t(72)=.166, p=.868.
This study expanded on existing research of gender as a discretionary factor in the criminal justice system. Specifically, it explored the impact of gender on early release decisions for the elderly inmate population. Based on the results of the questionnaire, it was found that gender did not have a statistically significant effect on age-related release decisions for compassionate release. A systematic discussion of all findings from the study is detailed below.
Based upon the descriptive statistics, it was found that compared to age, medical issues were considered more of a release factor for compassionate release. Of the 74 participants, 79.7% indicated that they would be more likely to release an inmate on compassionate release for medical reasons rather than age. The remaining 20.3% indicated that they would be more likely to release an inmate on compassionate release based on age rather than medical issues. Sudden exposure to the term “compassionate release” surrounding the COVID-19 pandemic may have influenced these results. Amid fears of the rapid spread of the virus in prisons and jails, various counties and states have released thousands of inmates in the past few weeks (Kindy, Brown & Bennett, 2020). Prior to the pandemic, it is safe to assume most Americans never heard of compassionate release. However, depending on the news channel delivering recent stories about COVID- based compassionate releases and subsequent recidivism rates, the information portrayed may be biased and inaccurate. Therefore, the politicized commentary may impact public opinion about compassionate releases in the future.
Another conclusion of this study was the ranking of the UCR’s eight index crimes. The UCR is the FBI’s Uniform Crime Report, which is a statistical program used to measure crime in the nation. The UCR divides these eight crimes into two sections: violent crimes (i.e., murder, rape, robbery, and aggravated assault) and property crimes (i.e., arson, burglary, larceny/theft, and motor vehicle theft). Participants were asked to rate each of these eight crimes on a scale of 1-10, with 1 being least likely to receive compassionate release and 10 being most likely to receive compassionate release. The crime that was ranked the least likely to be released was rape, with an average rank of 1.81. It is safe to assume with a population sample of college students and majority being female (73%), rape is the violent crime that may affect them the most or that they are most exposed to during this time in their life.
The crime that was ranked the most likely to be released was motor vehicle theft, with an average rank of 6.13. This was expected because it is a property crime, which are seen as less violent and therefore predicted to be more likely to received compassionate release. However, it is interesting to note that robbery, a violent crime, had an average rank of 5.89, higher than some property crimes. The Sentencing Council (2018) reports that in crimes where money or property are taken, the terms “theft”, “burglary” and “robbery” are used interchangeably, but there are very clear differences between these offences. This indicates that these crimes may commonly be mistaken for one another. In addition to the terms being used interchangeably, a large percentage of the participants in the sample had majors outside of the criminal justice field. This may have made the process to distinguish the difference between these crimes daunting.
Lastly, the main purpose of the study was examining gender as a predictor of compassionate release. Results showed that gender did not have an influence on compassionate release based on age. It may be that respondents did not sympathize with the offender, especially analyzing a crime as serious as murder. Another consideration is that participants may have had a personal experience or interaction with the correctional system, which may have influenced their opinions. Additionally, it is possible that there are other factors, such as the media, that influenced participants’ opinions on compassionate release.
There were several limitations in this study. One limitation of this study was that it was a convenience sample. Moreover, participants of the study were all from a small private Northeastern college who were enrolled in a General Psychology class. This small sample size cannot be used to generalize about the larger college population. Another limitation of this study was the time frame in which the data was collected. This study was conducted during the COVID-19 pandemic. Moreover, the pandemic has led to an increase in the knowledge of and exposure to the topic “compassionate release.” Due to the pandemic, there has been an influx in inmates receiving compassionate release. Therefore, media outlets have spent more time focusing on the topic. However, depending on the political affiliation of the news source, compassionate release may be depicted negatively or positively. In other words, the topic has become politicized and the media could influence viewers’ perception of compassionate release. Participants were asked to rank the UCR’s eight index crimes on a scale of 1-10. However, no definitions were given of each crime on the survey. This may have left room for participants to interpret the crime in their own way. In addition, a large majority of the participants were majors outside of the criminal justice field. This was a limitation because they may not have had exposure to those specific terms. Similarly, another limitation of the study was the fact that “Larceny/Theft,” “Robbery,” and “Burglary” are three different crimes that are often confused.
A few unforeseen issues were presented while conducting this research. One issue was the lack of definitions to support each crime. Future research should provide proper definitions for terminology that may be unfamiliar to those outside of the area of study. It is important to be mindful that not all participants will be knowledgeable with the terminology used in the study. Therefore, it is essential to provide that clarification to avoid confusion and unreliable data. Another issue that arose from this research was the lack of assessment of participants’ personal experience with corrections (i.e., family member or friend incarceration). Future research should assess for any personal experience with corrections that might influence or bias participants' opinions towards compassionate release.
Although gender disparities are seen in various areas of the criminal justice system such as policing, sentencing, and incarceration, there is no research pertaining to the influence of gender on compassionate release decisions. For this reason, it is likely that compassionate release will continue to be based of circumstances such as terminal illness, advanced age, disparities, and family circumstances. However, legal (i.e., severity of crime and prior convictions) and extra-legal factors (i.e., race and gender) continue to influence other areas of the criminal justice system. Therefore, it is possible that gender may have an influence on compassionate release, and this study may begin to carve a new direction for future research. As circumstances surrounding the COVID-19 pandemic continue to evolve, future research should investigate how this pandemic and its consequences may impact compassionate release decisions and related correctional policies.
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 The scenarios and questionnaire is available from the author upon request.