Ageing, Institutional Thoughtlessness, and Normalisation in Japan’s Prisons

ABSTRACT

Like other industrialised countries, Japan has experienced a rapid increase in the proportion of incarcerated older adults. This increase is problematic because prisons were not designed to accommodate the needs of the older adults who increasingly fill them, leading to immense financial, legal, and human costs as jurisdictions struggle to adapt to the demographic change. Some refer to this failure to adjust to changing demographics as “institutional thoughtlessness”. While a growing body of research points to concerns associated with the ageing trend, less work explicitly aims to understand the most effective ways to cope with the reality of the unprecedented number of older adults who are currently incarcerated. Using Japan as a case study, we argue that the misalignment between prison infrastructure and the changing physical and mental health needs of incarcerated people calls for a need to normalise prisons. Making prison life more similar to life outside of prison would reduce age-related risks like social isolation and dementia while improving the health, welfare, and reintegration of older adults.

KEYWORDS:

• Japan
• elderly prisoner
• ageing society
• normalisation
• malign neglect
• institutional thoughtlessness

Introduction

The treatment of incarcerated older adults has recently emerged as a new challenge faced by many industrialised countries. The number of incarcerated older adults has grown rapidly in many jurisdictions around the world including in the US (Office of the Inspector General, 2016), the UK (House of Commons Justice Committee, 2013), and Australia (Angus, 2015). This growth imposes significant financial, human, and legal costs (Chiu, 2010; Ginnivan et al., 2021; Maschi, Viola, et al., 2012). Since the number is expected to continue to rise (American Civil Liberties Union, 2012; Ginnivan et al., 2018; Kim & Peterson, 2014), the challenges of managing incarcerated older adults are a growing concern in these countries (Humblet, 2021; R. H. Aday & Maschi, 2019; Shaw, 2021).

Japan, one of the fastest ageing societies in the world (Japanese Cabinet Office, 2018), is no exception to this trend (Hamai, 2011; Hosoi & Tatsuno, 2021; Yokoyama, 2018). The White Paper on Crime in Japan has raised concern over the increase in elderly in the criminal justice system. In 1984, the White Paper on Crime introduced elderly crimes as a future problem Japan would face due to societal changes (Japanese Ministry of Justice, 1984). Seven years later, it featured crime in an ageing society as the main theme (Japanese Ministry of Justice, 1991). It claimed that an increase in elderly criminals due to an ageing society would call for special treatments and measures, thereby requiring justice professionals to prepare for this eventuality (Japanese Ministry of Justice, 1991). In 2008, the White Paper on Crime discussed the problems associated with incarcerated older adults (Japanese Ministry of Justice, 2008). According to this White Paper, the number of incarcerated older adults in Japan has been increasing, while that of incarcerated young people has decreased. It noted that the number of incarcerated older adults in Japan would continue to grow (Japanese Ministry of Justice, 2008). In 2018, the White Paper on Crime again focused on elder people, discussing how they are treated in the Japanese criminal justice system (Japanese Ministry of Justice, 2018).

In response to the increase in elderly people, the Japanese criminal justice system has implemented new strategies like the new initiatives for drug users (Harada & Shinkai, 2010). Upon coordination and cooperation between the justice and welfare sectors, elderly people receive special treatment and support, particularly upon their entry into the criminal justice system and after their release from prison (Japanese Ministry of Justice, 2018). These strategies may contribute to a decrease in the number of incarcerated older adults; however, they lack an important consideration, that is, how to treat the elderly inside prisons when the physical conditions of incarcerated older adults cast doubt on the appropriateness of continuing to use incarceration as punishment for elder people (Lawson, 2021). This gap in knowledge is particularly concerning because existing research suggests the needs of incarcerated older adults are very different from their younger peers, who are more physically able and need less medical care (Hosoi & Tatsuno, 2021).

We argue that Japan’s ageing prison population and the associated changes in demand for things like healthcare and accommodations for physical disability and cognitive decline suggest a need to normalise prisons by making prison life as similar to life outside of prison as possible. We follow Maschi and Morgen (2020) in calling for “caring justice” for incarcerated older adults, who are unable to perform normal activities of daily living in prisons designed for younger people who are more physically healthy. Although there has been increased attention on the elderly in the criminal justice system (for example, see Kratcoski & Maximilian, 2018), with a few exceptions (e.g., Fazel et al., 2002; Khechumyan, 2018; Yukhvid, 2014), there is a paucity of literature pertaining to the appropriateness of incarcerating the elderly as well as how to treat incarcerated older adults. Inspired by Psick et al. (2017), we use Japan as a case study to examine the costs and other consequences of incarcerating the elderly and to derive policy implications regarding how to respond. Our paper helps to shed light on the emerging issue of the treatment of incarcerated older adults, which many industrialised countries including Japan will continue to face in the near future.

This paper is organised as follows. We first describe the growth of incarcerated older adults in Japan. This is followed by a discussion of how prisons serve as a challenging environment for older adults. Focusing on Japanese prisons, we then discuss the potential of the normalisation of prisons for incarcerated older adults.

Growth of incarcerated older adults in Japan

Despite an overall reduction in the prison population since 2007 (see Figure 1), Japan has experienced an increase in incarcerated adults aged 65 or older. The overall prison population in Japan has recently begun to decline (see Figure 1). According to the official statistics, the decrease has been ongoing since 2007.

Figure 1. Prison Population in Japan, 1957–2021.

Source: Annual Report of Statistics on Correction

However, Japan has experienced an increase in incarcerated older adults. The age of 65 is the official definition of the elderly employed by the Japanese government (Japanese Cabinet Office, 2018; Japanese Ministry of Justice, 2018). Figure 2 shows the number of incarcerated older adults.¹ And Figure 3 shows their proportion in Japanese prisons. Although the number has recently been levelling off, the proportion of incarcerated older adults in Japan has been increasing since the 1980s.

Figure 2. Number of Incarcerated Older Adults in Japan, 1949–2021.

Source: Annual Report of Statistics on Correction

Figure 3. Proportion of Incarcerated Older Adults in Japan, 1949–2021.

Source: Annual Report of Statistics on Correction

Three main factors may have contributed to the growth of incarcerated older adults in Japan. First, incarcerated people ageing inside Japanese prisons due to long sentences. Due to increased fear of crime among the public and victim advocacy, Japan has experienced a “tough on crime” movement (Fenwick, 2013; Miyazawa, 2008). This punitive trend in the Japanese criminal justice system has resulted in longer sentences, particularly for serious crimes. Early release or parole of incarcerated people who committed serious crimes has also become less likely to be approved (Ota, 2011). As a consequence, incarcerated people with longer sentences are ageing and even dying inside prisons (Hamai & Ellis, 2008; Homusogokenkyujo, 2017). Second, more elderly people are recidivating or being arrested for new crimes (Homusogokenkyujo, 2017). Hamai (2011) examined crime rates among different types of offences by the elderly in Japan and found that the growth of the elderly prisoner population has been caused by the increase in elderly people committing theft. Third, according to Lawson (2021), some elderly people have committed a minor crime to seek imprisonment for protection at the expense of stigmatisation because they suffer poverty and isolation in society. Indeed, a vast majority of elders engaged in shoplifting (Japanese Ministry of Justice, 2018). Due to the punitive trend in the Japanese criminal justice system, elderly offenders who are involved even in minor crimes are now more likely to be arrested, prosecuted, and imprisoned (see also Sugie, 2017).

Prison as a challenging environment for older adults

To describe the hardships elders are facing in prison, Crawley (2005, p. 350, emphasis in the original) developed the concept of “institutional thoughtlessness,” which she uses to refer to the ways in which prison regimes (routines, rules, time-tables, etcetera) simply roll on with little reference to the needs and sensibilities of the old” (p. 350). Prisons are generally designed for incarcerated young people who are physically sound (Office of the Inspector General, 2016; Shaw et al., 2019; Sterns et al., 2008). This design imposes many barriers to activities of daily living for incarcerated older adults, particularly those with impaired mobility, who may have limited access to or need help accessing some prison facilities (Cashin et al., 2007; Her Majesty’s Chief Inspector of Prisons, 2008). Institutional thoughtlessness in prison also becomes problematic when older adults are treated as equal to young people under the sameness principle (Snacken & Humblet, 2018). Further, incarcerated older adults are usually required to adhere to prison rules and to sustain other institutional routines (Crawley & Sparks, 2005), even though it is sometimes difficult for them to do so due to disability or other health problems. These and other age-related factors may exacerbate the pain of imprisonment for incarcerated older adults, rendering them vulnerable to social isolation, violence and victimisation, and exclusion from a range of services (Snacken & Humblet, 2018, p. 11).

Institutional thoughtlessness also worsens the health of incarcerated older adults, whose exposure to incarceration and other adverse living conditions contributes to what some call “accelerated ageing” (Cipriani et al., 2017; Humblet, 2021). A growing body of research shows that many incarcerated older adults are especially likely to have physical health problems like diabetes and cardiovascular disease, osteoarthritis, and hearing loss (Hayes et al., 2012; Marquart et al., 2000; Verhülsdonk et al., 2021). Other research also indicates that incarcerated older adults are at increased risk for depression and other mental (Koenig et al., 1995; Steigerwald et al., 2022; Stoliker & Galli, 2019). Dementia and other forms of cognitive decline are also common, and inadequate physical activity and intellectual and social stimulation inside prison may contribute to these and other problems (Alzheimer’s Australia NSW, 2014; Christodoulou, 2012). These unique needs, combined with generally poor healthcare in prisons, often cause incarcerated older adults to struggle in the prison environment (Clinks, 2021; Field & Archer, 2019)

These conditions inside the prison beg a question of whether the prison is the “right” place to punish the elderly. We raise this question because incarcerated older adults appear to suffer more than intended. Incarcerating older adults may mean what Turner et al. (2018, p. 165; see also Baidawi, 2015, p. 250; Stojkovic, 2007, pp. 98–99) called “a double burden; extra punishment in addition to the loss of liberty consequent upon a custodial sentence.” In addition to their loss of liberty as a result of imprisonment, incarcerated older adults suffer from a lack of proper healthcare due to their geriatric needs, as well as the increased risks of social isolation and dementia. Incarceration may even become disproportionate and cruel when incarcerated older adults are likely to die in prison or when they are seriously ill (Khechumyan, 2018; Snacken & Humblet, 2018). Incarcerating older adults may not serve the purposes of imprisonment including deterrence and retribution because they no longer pose little to no threat to society or recognise their current status (Baldwin & Leete, 2012; Fazel et al., 2002). From a human rights perspective, incarcerating older adults may rather be inappropriate (Human Rights Watch, 2012; Lawson, 2021). The inability of the architecture and operation of prisons to accommodate the needs of growing numbers of older adults – especially related to the increased demand for healthcare – calls for a viable solution.

Normalising prisons in Japan

We argue for the potential of normalisation as a remedy for the costly and potentially inhumane prison environment for older adults. We believe that making prison life more similar to life outside of prison is the best solution because it would reduce financial and potential legal costs while improving the health, welfare, and reintegration of older adults. In what follows, we elaborate on the principles of normalisation of prisons, the suitability of Japan as a case study, and the application of the normalisation principles to Japanese prisons.

Principles of normalizing prisons

The idea of normalisation was first formulated by Wolfensberger (1972) and defined by Nirje (1985, p. 67) as an attempt to make available to all people with intellectual disabilities, “patterns of life and conditions of everyday living which are as close as possible to the regular circumstances and ways of life or society.” It has emerged in terms of the welfare of people with intellectual disabilities. During the 1950s and 1960s, people with intellectual disabilities were segregated from society and institutionalised, often receiving inhumane treatment. The mass institutionalisation of people with intellectual disabilities was critiqued from a human rights perspective, leading to the idea of normalisation.

Recently, the normalisation of prisons is endorsed as one of the fundamental principles of the administration of punishment in the International Covenants on Human Rights. For example, Rule 5.1 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the Mandela Rules) states that “The prison regime should seek to minimise any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings” (United Nations Economic and Social Council, 2015). The Council of Europe, a human rights organisation in Europe, recommends that “active steps should be taken to make conditions in prison as close to normal life as possible and to ensure that this normalisation does not lead to reproducing undesirable aspects of community life inside the prison” (Council of Europe, 2020). It proposes the normalisation of prison because forcing incarcerated people to obey prison rules and routines may result in a feeling of incompetence and loss of agency among incarcerated people, estranging them from normal life in society (Council of Europe, 2003).

The principle of normalisation has already been implemented in the prisons of Scandinavian countries such as Finland (Villman, 2023), Norway (Andvig et al., 2021), and Denmark (Minke, 2017) and other European countries such as Netherlands (van de Rijt et al., 2022). These countries implement the normalisation principle for incarcerated adults in general; therefore, Germany’s practice may be a good example of normalising prisons for older adults because it attempts to make the prison life as close to normal life as possible to support the reintegration of incarcerated older adults. Reflecting the normalisation principle, incarcerated people in Germany become exempt from labour duty when they turn 65 years old (Prison Act of Hesse Article 27–2). German prisons also provide incarcerated older adults with training programs for shopping, cooking, and laundry to help them live their daily life after release. According to the normalisation principle, the aim of Germany’s treatment of incarcerated older adults is to enable them to reintegrate into society and grow old successfully (Washino, 2010).

Suitability of Japan as a case study

To illustrate the application of the normalisation principles, we use Japan as a case study. Using Japan as a case is beneficial because Japan is similar to other industrialised countries in three ways. First, in addition to the growth of incarcerated older adults like in other industrialised countries as described above, incarcerated older adults in Japan are similar to those in these countries in that they also have a range of geriatric needs inside prison, although few studies have examined the needs of incarcerated older adults in Japan. One such study was conducted by Homusogokenkyujo―the research institute of the Japanese Ministry of Justice―in 2007. This study showed that in addition to poor health conditions, incarcerated older adults in Japan are dissatisfied with many aspects of their lives in prison, such as their relationships with other groups of incarcerated people, the lack of opportunity to obtain appropriate medical checks, or prison work (Homusogokenkyujo, 2007). Another recent study by Homusogokenkyujo also revealed that the number and ratio of incarcerated older adults who need medical care have been increasing (Homusogokenkyujo, 2017).

Second and from a penological perspective, like other countries such as the US (ACLU, 2022), Japanese prisons have an additional problem with incarcerating the elderly because they force incarcerated people to work as part of their punishment. Article 12(1) of the Penal Code states: “Imprisonment with work shall be either for life or with a definite term, and the definite term of imprisonment with work shall be not less than one month but not more than 20 years” (Japanese Law Translation, 2017). Some incarcerated older adults in Japan, particularly those with impaired mobility and with dementia, cannot perform this task. Indeed, more than a decade ago, Yamamoto (2003), a former member of the Japanese Parliament who was incarcerated for fraud, observed that part of his job inside the prison was to nurse incarcerated older adults who could not take care of themselves. As Hamai (2017) argued, forcing incarcerated older adults to work inside the prison may cause irreversible damage to their physical and mental health. Given this unique prison condition, Japanese prisons would be an interesting case to consider the possibility and potential of normalisation.

Third, like other countries (for example, see Chiu, 2010), the Japanese government has also recently introduced new strategies to address the problems caused by the increasing number of incarcerated older adults in the Japanese criminal justice system (Homusogokenkyujo, 2017). Through coordination and cooperation between the justice and welfare sectors, older adults receive special support in the criminal justice system. Upon entering the criminal justice process, the services of the Public Prosecutor’s Office are offered to elderly people who receive a suspended prosecution. When these elders lack income and housing at the point of suspended prosecution, prosecutors refer them to probation offices and welfare agencies in order to arrange social services, such as temporary housing and livelihood protection. When they appear to have a mental illness, prosecutors coordinate with social service agencies and medical institutions to discuss the support they need (Japanese Ministry of Justice, 2018). Inside Japanese prisons, a reintegration support program for incarcerated older adults has been implemented to develop their social skills and promote their knowledge of the welfare support available outside of prison (Japanese Ministry of Justice, 2018). Reentry support is also offered to incarcerated older adults who lack housing after their release from prison. Prisons and probation offices cooperate with various agencies including the “Regional Settlement Support Centre” to help incarcerated older adults receive the necessary support in terms of their medical treatment and pension. Those accommodated at the rehabilitation facilities after their release from prison can participate in programs and training to develop their social skills and be referred to welfare support systems (Japanese Ministry of Justice, 2018). According to the White Paper on Crime, the above strategies appear to be successful in promoting the reintegration of older adults who get in contact with the criminal justice system (Japanese Ministry of Justice, 2018), although no rigorous evaluation has been conducted. Nevertheless, when looking closely at these strategies, they are mainly concentrated outside the prison. The consideration of support for elders inside the prison is not thoroughly provided because entry and exit support are the two main pillars of the new strategies (Lawson, 2021). As discussed above, however, the problems of prison life for elders should not be neglected. Therefore, Japanese prisons have all the more reasons to improve the prison environment for older adults through normalisation.

Applying the normalisation principles to Japanese prisons

By normalisation for incarcerated older adults in Japan, the life inside prison for older adults is up to “the minimum standards of wholesome and cultured living” in terms of “social welfare and security … and public health” as stipulated in Article 25 of the Constitution of Japan (Prime Minister of Japan and His Cabinet, n.d..). Therefore, incarcerated older adults should be granted access to medical and social services where necessary and appropriate. Normalisation in this sense is of prime importance because life outside the prison for older adults is often arduous. Research showed that incarcerated older adults have a wide range of traumatic and stressful life experiences outside prison including substance abuse, physical and mental illness, and physical and sexual abuse in childhood (Haugebrook et al., 2010; Maschi et al., 2015). Additionally, incarcerated older adults have a plethora of other life challenges outside prison including lack of healthcare access (Forsyth et al., 2015), social isolation (Wyse, 2018), and lack of housing (Hagos et al., 2022). Normalisation of prison for older adults should mean not just an improvement of the challenging prison condition for older adults but also enhanced medical and social services for the elderly.

To achieve the normalisation of Japanese prisons for older adults, we suggest the following reforms:

• Incarcerated older adults struggle to receive adequate and appropriate medical treatment both inside (Galli et al., 2019) and outside prison (Burke et al., 2022). Thus, the quality of and access to geriatric services for incarcerated older adults need to be improved to match appropriate standards of care. The authorities should invest in services specifically for incarcerated older adults to receive continuous healthcare services both inside and outside prison.

• Incarcerated older adults often experience social isolation and other problems resulting from long-term limited contact with friends and family, difficulty mixing with incarcerated younger adults, and other experiences associated with incarceration in older age (Hayes et al., 2013). Therefore, greater consideration ought to be given to ensuring prison policies and processes accommodate the changing psycho-social needs of the elderly. This should include improved behavioural healthcare, opportunities for incarcerated older adults to form and maintain social bonds with others inside and outside of prison. It may also include providing opportunities for quiet solitude, encouraging religious practice, and fostering the adoption of constructive hobbies. Making these changes would help not only to avoid violating the human rights of incarcerated older adults (J. Williams, 2012) but also to reduce the risk of them getting depression due to social isolation (O’hara et al., 2016).

• Incarcerated older adults often have difficulty following institutional routines due to health problems including physical disabilities and dementia, which often occur at younger ages among incarcerated people compared to the general population (Baldwin & Leete, 2012; Maschi, Kwak, et al., 2012). Thus, serious consideration should be given to exempting them from burdensome routines whenever possible and to removing disciplinary penalties for not complying with the prison rules and routines as long as this exemption does not hamper the operation of prisons for incarcerated young people.

• Undiagnosed dementia and other health issues among incarcerated older adults often remain “hidden problems” (Cipriani et al., 2017, p. 42). Therefore, correctional officers should be trained to detect dementia and other age-related problems inside prison (Brooke & Rybacka, 2020).

Concluding remarks

Given the alarming increase in incarcerated older adults across industrialised countries, we should draw attention to prison as an inhumane environment for older adults. Due to the hardships and challenges facing older adults inside prison, maintaining the current prison condition may mean what Tonry (1995) called “malign neglect” for incarcerated older adults (M. E. Williams & Rikard, 2004; R. Aday & Farney, 2014), representing the failure of the government to provide a humane environment for incarcerated people. Drawing on Simon (2014), who analysed Brown v. Plata (2011), Psick et al. (2017, p. 60) reported that the US Supreme Court ruled that the “impeded adequate medical and mental healthcare service delivery” as a result of mass incarceration was a violation of 8th Amendment protections against cruel and unusual punishment. This ruling implies that the current inhumane prison environment is not only a mere health problem for each incarcerated older adult but also an accountability issue, which urges the government to develop a geriatric model of prisons and improve the prison condition for incarcerated older adults (B. A. Williams et al., 2012).

Japan faces a similar problem because of the increase in incarcerated older adults. As Japanese society continues to age, the population of incarcerated older adults in Japan will continue to increase. Like many other industrialised countries, how to deal with incarcerated older adults is a major challenge facing Japanese prisons. By using Japanese prisons as a case study, we have proposed that normalisation of prisons is needed. By normalising prisons, we should be able to avoid the violation of human rights of incarcerated older adults, reduce the risks of exacerbating their poor health conditions, and promote their reintegration into the community. While we have focused on the Japanese case, we believe our proposition is applicable and beneficial to other industrialised countries that similarly experience the growth of incarcerated older adults.

We should note that merely normalising prison in light of the life of older adults outside prison entails a risk of reinforcing the abnormality of the status quo when prison in Japan functions as a last resort to obtain welfare for elderly people who have nowhere to go (Hamai & Serizawa, 2006). While normalising prisons may lead to the enhancement of healthcare and welfare inside prisons for older adults, it should not be used as an excuse to accommodate more elders. We cannot stress this enough considering the current use of prison as a response to many social problems (Garland, 2001; Simon, 2007). Given the current penal climate in Japan, normalising prisons may pose a risk of more incarceration of older adults because the prison environment would be improved. While it is beyond the scope of this paper to discuss the strategies to transform the prison system that currently oppresses minority and vulnerable groups including older adults, we argue that this risk should not justify maintaining the current inhumane prison conditions for older adults. More importantly, we believe the benefits of normalising prison would outweigh the weaknesses. Enhancing the social welfare inside prison through normalisation would contribute to reducing the risks of social isolation among incarcerated older adults and promoting their reintegration. Additionally, normalisation would involve external support by involving social workers and other relevant professionals, which would, in turn, lead to more transparency and accountability as well as raise awareness and understanding among citizens regarding the situations where incarcerated older adults are placed.

Case

Brown v. Plate 563 U.S. 2001 https://supreme.justia.com/cases/federal/us/563/493/#tab-opinion-1963501

Statutes

Constitution of Japan

Penal Code of Japan

Prison Act of Hesse

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

Masahiro Suzuki

Masahiro Suzuki, Ph.D, is a lecturer in criminology at the College of Law, Criminology and Justice, Central Queensland University, Australia. His research interests include restorative justice, desistance, juvenile justice, and comparative criminology. As an early career researcher, he has more than 30 publications.

Akinori Otani

Akinori Otani, Ph. D, is a research fellow of Japan Society for the Promotion Science (PD), Japan. His research interests lie in criminal justice, treatment of offenders and prison policy. He published a monograph on a prison living standards in 2021.

Notes

1. Despite the official definition of the elderly, since official Japanese statistics only have the category of over 60 years old, in this graph incarcerated older adults are defined as over 60. This condition also applies to Figure 3.