The Champion

Sept-Oct 2013 , Page 30 

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The ‘Silver Tsunami’ And Sentencing — Age and Health as Mitigating Factors

By Evan A. Jenness

Age and health are significant mitigating factors in an increasing number of sentencings as the baby-boomer generation turns 65 — the so-called “Silver Tsunami.”1 This is particularly true in white collar cases, which disproportionately involve offenders over 50.2 

The Federal Sentencing Guidelines, as promulgated in 1987, provided that an individual’s age, health or mental health was “not ordinarily relevant” in determining whether a sentence should be outside the applicable guideline range. They also narrowly circumscribed when these factors could support leniency.3 The Supreme Court effectively ended these limitations in United States v. Booker4 by ruling that the Guidelines were merely advisory. As a consequence of Booker, federal judges may rely on a person’s old age, poor health and mental health problems to satisfy the statutory mandate of Title 18 U.S.C. § 3553(a) to impose just punishment, avoid unwarranted sentencing disparities, protect the public, afford adequate deterrence, and effectively provide needed medical care.5 Moreover, in a dramatic break from the past, the Guidelines were amended as of Nov. 1, 2010, to provide that age, physical condition and mental health may be relevant if their effects are “present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”6  

Because of these developments, the plethora of older cases rejecting leniency based on age and health are now obsolete or at least easily distinguishable. These developments also make it a more fruitful time to present age, and its effects, as mitigating factors. This article discusses specific age-related considerations that may support sentencing leniency, and identifies the underlying justifications for their consideration as relevant sentencing factors.

Defining ‘Old’ for Sentencing Purposes

The first step in many cases will be defining “old” in context. “Old” with respect to sentencing is not the equivalent of “old” in common parlance. Although 50 may not be old in the outside world, it is for sentencing purposes since the median age of a federal defendant at sentencing is just 34.7 The National Institute of Corrections defines prisoners 50 and older as “elderly” and “aging,”8 and 15 states specifically define an “older” inmate as one who is 50 or older.9 According to a large recent study, “[f]or the past two decades, there has been an overwhelming consensus among correctional experts and criminologists that 50 years of age is the appropriate point marking when a prisoner becomes ‘aging’ or ‘elderly.’”10 Only 10.8 percent of all federal defendants are over 50.11 

As stated by the Eighth Circuit, a defendant’s age at 51 “can and should be considered” in sentencing.12 One justification for doing so is that prison facilities, rules, and routines were not created with older inmates in mind. As a result, ordinary incidents of prison life may challenge those who are only middle-aged in the community at large. These include climbing stairs to high-tier cell blocks, getting into a top bunk with a low ceiling, walking long distances for meals and other services, standing in lengthy lines for meals or pills, sleeping on thin mattresses, and enduring cold or hot temperatures.13 Another justification is that older inmates are potential subjects of abuse. First-time offenders over 50 are particularly “easy prey” for more experienced predatory inmates.14 Additional factors that justify taking age into account in sentencing are things like “separation from family and friends, physical confinement, poor healthcare, and the threat of victimization,” as they disproportionally affect older inmates.15 

Regardless of when old age may begin in the community at large, when it comes to sentencing, a client over 50 may merit leniency based on age. Leniency may be appropriate for even younger clients who suffer from health issues or other adverse incidents of age.

Greater Relative Punishment

Because incarceration can be substantially more punitive for an older defendant than the “heartland” offender, sentencing leniency based on old age and infirmity promotes the penal goals of imposing sufficient punishment and avoiding unwarranted sentencing disparities under 18 U.S.C. § 3553.

“Older prisoners, even if they are not suffering illness, can find the ordinary rigors of prison particularly difficult because of a general decline in physical and often mental functioning which affects how they live in their environments and what they need to be healthy, safe, and have a sense of well-being.”16 Typical incidents of prison life are harsher for the middle-aged offender than the average inmate, but the experience is particularly punitive for those “who need wheelchairs, walkers, canes, portable oxygen, and hearing aids; who cannot get dressed, go to the bathroom, or bathe without help; and who are incontinent, forgetful, suffering chronic illnesses, extremely ill, and dying.”17 Even an ordinary affliction such as urinary incontinence may put an inmate at greater risk of assault by other inmates, and will subject the inmate to the humiliation of bathrooms and cells that lack privacy.18 

Elderly prisoners also suffer more from prisons’ lack of privacy, noise, and brisk pace.19 Similarly, they may experience relatively greater social isolation, depression, and harassment by other inmates.20 Prison also has a greater adverse impact on older inmates’ physical and mental well-being. They “are more likely to develop disabilities that require the use of assistive devices such as glasses, hearing aids, wheelchairs, walkers, and canes.”21 Their mental health, too, may suffer disproportionately. Older inmates suffer more from depression, and even have a “higher rate of successful suicide."22 Health and other problems of older inmates can “accelerate their aging processes to an average of 11.5 years older than their chronological ages after age 50.”23 

The increased hardships and challenges older offenders face upon re-entering the community following prison also support leniency. “Older men and women released from prison often find it extremely difficult to find work, housing, and transportation, as well as necessary medical and mental healthcare,” and “[m]any nursing homes do not want to accept ex-felons.”24 

Given the relatively greater adverse impact of prison on older inmates, what kind of evidence may support leniency for a particular client? Having a client evaluated by a medical and/or mental health professional, including even a gerontologist or expert regarding a client’s particular conditions, may be critical. Where evidence establishes that imprisonment would be more punitive for a client because of the client’s age and health, a sentencing court can reasonably conclude that leniency is consistent with the duty to impose a sentence that is sufficient, but not greater than necessary, to provide just punishment and avoid unwarranted sentencing disparities.25 

Disproportionately Greater Health Risks

Ordinary incidents of aging present special health risks to older prisoners. Among other things, older inmates are more vulnerable to contagious diseases, face increased risk of falls, require more frequent access to toilet facilities, and require more prescription medications.26 They are also particularly vulnerable to the effects of over- or under-medicating, and suffer disproportionately from a poor diet and limited exercise.27 

A specific showing will be required to demonstrate the disproportionate risks a client would face if imprisoned. But, once the defense presents evidence of a defendant’s particular conditions and needs, the burden shifts to the government to “assure the court that the BOP can adequately care for” the defendant given his or her specific needs.28 

The Bureau of Prisons (BOP) routinely proffers letters stating that its facilities can accommodate any medical or other special needs, and a bevy of BOP materials recite its claimed capabilities. However, there is little evidence it lives up to its stated goals, and some evidence it does not.29 Several courts have viewed with skepticism the BOP’s “form letter trumpeting” its ability to handle medical conditions of all kinds.30 

Even if the BOP could provide adequate care for a defendant, this “misses the mark” when it comes to sentencing because the issue under Section 3553 is the need to provide medical care “in the most effective manner.”31 For example, in United States v. Edwards, the court affirmed a sentence of probation in a bankruptcy fraud and false statements case, notwithstanding the 27-33 month Guideline, for a 63-year-old defendant with a prior criminal record. The court stated:

Considering the diabetes and related medical complications, the district court reasoned that imprisoning Edwards would simply pass the cost of medical care on to taxpayers. While the district court agreed with the government that the Bureau of Prisons was capable of providing for Edwards’s medical care, it found that a sentence of probation would satisfy the requirement of providing needed care in the most effective manner. 18 U.S.C. § 3553(a)(2)(D).32 

In sum, a client’s health needs — whether the BOP might be able to accommodate them or not — may support sentencing leniency where they can be addressed more effectively in the community.33 

Avoiding Unwarranted Disparities

Any prison term is a larger portion of an older defendant’s remaining years than it is of the “heartland” offender’s. Therefore, an older or infirm defendant’s shorter life expectancy supports leniency based on the sentencing goals of proportionality and avoiding unwarranted sentencing disparities. Life expectancy tables support the commonsense argument that prison time disproportionately punishes the older offender. For example, a 78-month sentence would be almost half the remaining life of the typical 70-year-old male today, but less than 15 percent of that of a 30-year-old.34 While most younger defendants can look forward to many years ahead after serving a prison term, an older defendant may deserve leniency if he or she would otherwise be very old upon release.35 

Older and Wiser — Reduced Recidivism

A lower rate of recidivism for older inmates is well-established and supports leniency because it allows the sentencing purposes of deterrence and protection of the public to be satisfied by a lesser term.36 There is “overwhelming evidence that prisoners age 50 and older are far less likely to return to prison for new crimes than their younger cohorts.”37 One recent study stated:

Criminologists and corrections experts universally agree that a person’s average likelihood of committing any type of crime declines sharply with advancing age. … [B]y the time a person turns 50, his or her likelihood of committing another crime has already dropped precipitously. … This holds true regardless of the crime for which the prisoner was originally convicted and sent to prison.38 

Following Booker, reduced recidivism was quickly recognized as a ground for leniency in sentencing older defendants given courts’ duty to impose sentences that “afford adequate deterrence,” and “protect the public from further crimes of the defendant.”39 The revision of Guideline Section 5H1.1 in November 2010 should serve to reinforce this momentum.

Alternate Sanctions and Older Offenders

Experts have documented an acute prison healthcare crisis caused by the costs of treating the nation’s graying prison population.40 Prisons’ health care costs continue to escalate, as do longer-term adverse effects of incarcerating the elderly, including postincarceration housing instability, poor employability, aggravated health problems, and increased health-related mortality. This, in combination with older prisoners’ low risk of recidivism, makes them particularly appropriate candidates for alternate sanctions.

A recent report by the American Civil Liberties Union, At America’s Expense: The Mass Incarceration of the Elderly, examines in detail the effects of the country’s fast-growing silver-haired prison population, and concludes that too many tax dollars are being used to imprison the elderly without a meaningful public safety need. It costs approximately $34,000 per year to house an average prisoner, but over $68,000 per year to house a prisoner age 50 and older — more than 150 percent of the annual income of the typical American family.41 These costs suggest alternate sanctions, such as home confinement, should be considered for older defendants, particularly where the offense was nonviolent.42 “Older prisoners represent a low-risk, high-cost population that can serve as a vital release valve for a system on overload,” according to Professor Jonathan Turley in written testimony before Congress in 2007.43 “Both the federal and state systems are reeling under the increasing costs of their prison systems. … By any objective measure, older prisoners are generally not the prisoners who need to be incarcerated in conventional prisons.”44 

Demonstrating the past and potential future costs of a client’s necessary medical care may help to justify alternate sanctions where a client requires expensive treatment or monitoring for special conditions. As noted in a recent study, “[p]roviding medical care to older prisoners comes with a steep price tag because of their greater medical needs. Older prisoners are more likely than younger ones to develop mobility impairments, hearing and vision loss, and cognitive limitations including dementia. Older prisoners are also more likely to have chronic, disabling, and terminal illnesses.”45 

Even where a client’s medical conditions may be relatively common and not extremely costly to treat (e.g., high cholesterol, insomnia, arthritis, prior injuries requiring physical therapy), the costs of incarceration will be above average. Costs will be substantially higher if a client suffers from conditions often coinciding with age such as heart disease, hypertension, diabetes, ulcers or prostate problems. In many cases, alternate sanctions will “provide the defendant with needed … medical care … in the most effective manner,”46 and age and infirmity may support a downward departure “where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.”47 

Age and Harsher Collateral Consequences

Adverse collateral consequences of a conviction often coincide with age, and may further support sentencing leniency. These include losing a business, profitable employment, public office, or a license. Such consequences make the sentence imposed more punitive, and provide additional specific deterrence if they eliminate the incentive or opportunity to re-offend. Thus, a defendant’s age (70) was a permissible ground for leniency where, among other things, he posed no public danger because he no longer controlled a business or desired to do so.48 Additionally, while the loss of employment is a common consequence of any felony conviction, the prospect of poverty as a result may be particularly harsh for elderly clients. The needs of an elderly or disabled spouse also may support leniency.49 

Separating the Offense From the Offender

Age frequently dovetails with aggravating factors such as the long duration, scope, or complexity of a fraud, or the defendant’s high position in a company. However, unlike age, these factors are already reflected in Guideline adjustments, including those for “loss,” “sophisticated means,” “aggravating role” and “number of victims,” and the higher base offense levels for money laundering and insider trading violations. Accordingly, while these aggravating factors may support a harsher sentence, none undermines a measure of leniency based on age and its adverse incidents. Indeed, adjustments for sophisticated means and role may even be overstated in the case of a defendant with mental health issues.

Age also frequently coincides with an array of mitigating factors not directly related to age, including support from family members, remorse, community involvement, prior good works, a history of charitable endeavors, lengthy lawful employment, many years of law-abiding conduct, and prior military service. These are among the additional considerations often cited by courts in exercising leniency in sentencing older defendants. Such factors can and should be considered by courts under Section 3553, even if they have already been taken into account in calculating the advisory Guideline range.50 

Persuading ‘Old’ Judges

Many current federal judges came of age during the Guidelines’ heyday and may be reluctant to exercise leniency based on age and health given the many years that — unlike today — these factors were “nor ordinarily relevant” under the Guidelines. Persuading judges to exercise leniency based on the age of defendants younger than themselves may also be challenging.51 

Unsympathetic judges may be giving disproportionate weight to the Guidelines’ policy statements. The Guidelines continue to discourage — albeit less than previously — “whether a departure is warranted” based on age and health by requiring the characteristic to be present “to an unusual degree.”52 However, the Supreme Court has repeatedly made clear that sentencing courts may not be cabined by policy statements discouraging consideration of factors that are relevant under Section 3553(a).53 “The Guidelines are not only not mandatory, they are also not to be presumed reasonable.”54 Age and poor health may not meet the Guidelines’ test for a “departure” in the particular case, but sentencing courts nonetheless must consider them if they support a variance under Booker and Section 3553.55 

Input from experts may be critical in persuading a skeptical probation officer and sentencing judge that a client’s age and medical conditions would make imprisonment disproportionately harsh. A physician, gerontologist, psychiatrist or other mental health professional, and/or specialist regarding prison conditions, can evaluate a client’s records, examine the client, and provide an evaluation describing — for example — the potential impact on the client of receiving deficient or rationed healthcare, being exposed to infectious diseases, being socially isolated, and coping with other ordinary incidents of prison life. Documentation from a client’s treating providers can establish a client’s medical and mental health conditions, history of treatment, disabilities, ongoing vulnerabilities, dietary restrictions, and need for prescriptions, specialized care, and continual monitoring. Treating providers are often in a special position to know and detail the potential adverse effects on the client if the client does not receive needed care. Family members, close friends, and even colleagues may also be able to describe relevant facts in their sentencing support letters.

Finally, while public policy arguments alone might not persuade a sentencing judge, a strong individual showing could be bolstered by noting that a “burgeoning geriatric prisoner population has important financial, practical, and moral implications for” communities at large as well as offenders and their families.56 This is particularly true when it comes to defendants with health or mental health conditions making incarceration disproportionately costly and punitive, who pose no meaningful risk of recidivism, and who may be adequately punished through alternative sentencing.57 

Conclusion

Preparing for the sentencing of an older client presents unusual challenges that defense lawyers are facing more frequently. Fortunately, developments in the law create greater potential for fairness, and make it all the more important for counsel to marshal the relevant facts and law supporting leniency.

Notes 

  1. In 2007-2010, the number of prisoners over 64 grew at 94 times the rate of the prison population nationwide. See Human Rights Watch, Old Behind Bars — The Aging Prison Population in the United States, at 7 (Jan. 2012) [hereinafter Old Behind Bars], available at http://www.hrw.org/reports/2012/01/27/old-behind-bars-0. In 2000-2009, the federal prison population over 50 increased by 76 percent, compared to an increase of only 43.3 percent in the total federal prison population. Id. at 40; see also U.C. San Francisco, Elderly Prisoners Need Better Medical Care (June 2012), at http://www.ucsf.edu/news/2012/06/12150/elderly-prisoners-need-better-medical-care.
  2. See U.S. Sentencing Comm’n, 2012 Sourcebook of Federal Sentencing Statistics, Table 6 (Age of Offenders in Each Primary Offense Category), Table 7 (Age, Race & Gender of Offenders), available at http://www.ussc.gov/.
  3. See U.S.S.G. §§ 5H1.1 (age), 5H1.3 (mental and emotional conditions), 5H1.4 (physical condition) (Nov. 1, 1987).
  4. United States v. Booker, 543 U.S. 220 (2005).
  5. See, e.g., United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005) (72-year-old defendant’s age supported leniency under Booker); United States v. Chase, 560 F.3d 828, 830-31 (8th Cir. 2009) (“factors such as a defendant’s age, medical condition, prior military service, family obligations, entrepreneurial spirit, etc., can form the bases for a variance [under Booker] even though they would not justify a departure” for 63-year-old defendant).
  6. See U.S.S.G. §§ 5H1.1 (age), 5H1.3 (mental and emotional conditions), 5H1.4 (physical condition) (Nov. 1, 2012).
  7. See U.S. Sentencing Comm’n, 2012 Sourcebook of Federal Sentencing Statistics, Table 6 (Age of Offenders in Each Primary Offense Category).
  8. See Dr. Joann B. Morton, An Administrative Overview of the Older Inmate, U.S. Department of Justice, National Institute of Corrections, 4 (1992) [hereinafter An Administrative Overview], available at http://www.static.nicic.gov/Library/010937.pdf.
  9. Old Behind Bars, at 17.
  10. American Civil Liberties Union, At America’s Expense: The Mass Incarceration of the Elderly 1 (2012) [hereinafter Mass Incarceration of the Elderly], available at http://www.aclu.org/files/assets/elderlyprisonreport_20120613_1.pdf.
  11. See note 7, supra.
  12. United States v. White, 506 F.3d 635, 640 (8th Cir. 2007) (affirming below-Guideline sentence for defendant with deteriorating medical condition); see also United States v. Simmons, 568 F.3d 564 (5th Cir. 2009) (remanding for resentencing a 48-year-old where the district court expressed disagreement with Guidelines’ then-existing policy statement regarding age, but thought it lacked discretion to consider age).
  13. See Old Behind Bars, at 4, 47.
  14. U.S. Dep’t of Justice, National Institute of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates 10 (2004) [hereinafter Correctional Health Care], available at http://nicic.gov/library/018735.
  15. Mass Incarceration of the Elderly, at 1.
  16. Old Behind Bars, at 45.
  17. Id. at 5, 45-47.
  18. Id. at 47, 49.
  19. See Ronald H. Aday, Aging Prisoners: Crisis in American Corrections (2003).
  20. Old Behind Bars, at 47.
  21. Id. at 46.
  22. See U.S. Bureau of Prisons, Management of Major Depressive Disorder, 2 (Aug. 2009), available at www.bop.gov/news/PDFs/depression.pdf.
  23. Correctional Health Care, at 10
  24. Old Behind Bars, at 80.
  25. 18 U.S.C. § 3553(a)(2)(A), (6).
  26. See An Administrative Overview, at 1-10.
  27. Id.
  28. United States Martin, 363 F.3d 25, 50 (1st Cir. 2004).
  29. See U.S. Dep’t of Justice, Office of the Inspector General, The Federal Bureau of Prison’s Efforts to Manage Inmate Health Care (Feb. 2008) (documenting multiple deficiencies), available at http://www.justice.gov/oig/reports/BOP/a0808/final.pdf; Follow-Up Audit of the Federal Bureau of Prison’s Efforts to Manage Inmate Health Care (July 2008) (documenting ongoing problems), available at http://www.justice.gov/oig/reports/BOP/a1030.pdf; U.S. Gen’l Accounting Office, Bureau of Prisons Health Care — Inmates’ Access to Health Care Is Limited by Lack of Clinical Staff (Feb. 1994) (report to congressional committee concluding that “[i]nmates with special needs, including women, psychiatric patients, and patients with chronic illnesses, [] were not receiving all of the health care they needed at the three medical referral centers we visited. … As a result, some patients’ conditions were not improving and others were at risk of serious deterioration.”), available at http://gao.gov/assets/220/219296.pdf.
  30. United States v. Gee, 226 F.3d 885, 902 (7th Cir. 2000); Martin, 363 F.3d at 50 (“Something more than mere boilerplate language is necessary to assure the court that the BOP can adequately care for [the defendant] given his substantial history of medical difficulty.”); see also United States v. Pineyro, 372 F. Supp. 2d 133, 135 & n.7 (D. Mass. 2005) (granting downward departure after ordering report pursuant to 18 U.S.C. § 3552(b), taking testimony, and comparing the “vague promises given by the BOP about what it could do to accommodate” the defendant with the “detailed treatment plan” provided by the defendant’s doctors; and concluding that the “BOP has not remotely met its burden of showing that it can provide the defendant with ‘needed … medical care, or other correctional treatment in the most effective manner’”).
  31. United States v. Wadena, 470 F.3d 735, 739 (8th Cir. 2006) (affirming probation for 67-year-old defendant requiring frequent dialysis).
  32. United States v. Edwards, 595 F.3d 1004, 1011 (9th Cir. 2010); see also United States v. Marsh, 820 F. Supp. 2d 320 (S.D.N.Y. 2011) (exercising discretion under Section 3553 and Booker to make substantial variances in sentencing defendants in fraud case based on, inter alia, medical and mental health conditions; imposing year-and-a-day sentence on 52-year-old defendant with heart disease and related conditions notwithstanding 108-135 month Guideline because, among other things, the “defendant’s many health problems will … make it harder for him to serve a prison term”); United States v. Lojek, 755 F. Supp. 2d 849 (N.D. Oh. 2010) (imposing year-and-a-day sentence notwithstanding 30-37 month Guideline in bribery case after balancing aggravating and mitigating factors, including fact that defendant’s health “is what one would expect for an 83-year-old. Many things don’t work as well as they used to.”).
  33. See 18 U.S.C. § 3553(a)(2)(D).
  34. Life Tables for the U.S. Social Security Area 1900-2100, Actuarial Study No. 120, Table 10 (Period Life Expectancies at Selected Ages, by Sex and Calendar Year), available at www.ssa.gov/oact/NOTES/as120/LifeTables_Body.html.
  35. Even pre-Booker authority supported leniency where “imprisonment could be the equivalent of a death sentence.” United States v. Long, 977 F.2d 1264, 1277-78 (8th Cir. 1992); Martin, 363 F.3d at 49-50 (leniency supported where a “high probability that lengthy incarceration will shorten” defendant’s life). See, e.g., United States v. McFarlin, 535 F.3d 808, 810 (8th Cir. 2008) (probation and alternate confinement based on age (56) and poor health, where a physician opined that the defendant’s life expectancy was 10-20 years below average); United States v. Ayers, 759 F. Supp. 2d 945, 957 (N.D. Ohio 2010) (discussing sentences of co-defendants and “high-profile defendants sentenced in white collar fraud matters in recent years,” and concluding that loss overstatement and 74-year-old defendant’s age and health supported variance from life to 15 years for organizing $2.3 billion securities fraud ring).
  36. U.S. Sentencing Comm’n, Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines 12 (May 2004) (noting that recidivism rates “decline relatively consistently as age increases”), available at www.ussc.gov/Research/Research_Publications/Recidivism/200405_Recidivism_Criminal_History.pdf.
  37. Mass Incarceration of the Elderly, at vii.
  38. Id. at 12.
  39. 18 U.S.C. § 3553(a)(2)(B), (C). See, e.g., United States v. Lata, 415 F.3d 107, 113 (1st Cir. 2005) (age and infirmity may be considered under Section 3553(a), especially if they diminish the risk of re-offending); United States v. Hamilton, 2009 WL 995576 *3 (2d Cir. 2009) (unpublished) (“district court abused its discretion in not taking into account policy considerations with regard to age recidivism not included in the Guidelines”); United States v. Ruiz, 2006 WL 1311982 at *4 (S.D.N.Y. May 10, 2006) (unpublished) (collecting cases imposing below-Guideline sentences based on reduced recidivism of defendants over 40).
  40. See, e.g., Brie A. Williams, M.D., et al., Addressing the Aging Crisis in U.S. Criminal Justice, J. Am. Geriatric Soc’y (June 2012), Aging in Correctional Custody: Setting a Policy Agenda for Older Prisoner Health Care, Am. J. Public Health (Aug. 2012).
  41. Mass Incarceration of the Elderly, at vii, 26-29.
  42. See Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences and Collateral Sanctions, 58 Stan L. Rev. 338, 351 (2005) (given that “they constitute a large financial burden, older offenders might be a primary target group for nonincarcerative sanctions” such as home confinement or increased fines).
  43. Hearing on Promoting Inmate Rehabilitation and Successful Release Planning Before the House Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, 110th Congress (Dec. 6, 2007).
  44. Id.
  45. Old Behind Bars, at 6-7.
  46. 18 U.S.C. § 3553(a)(2)(D).
  47. U.S.S.G. § 5H1.1.
  48. United States v. Davis, 537 F.3d 611, 613 (6th Cir.), cert. denied, 555 U.S. 1080 (2008).
  49. See United States v. Lanting, 10-cr-RRM (E.D.N.Y. Jan. 11, 2012) (six months of home confinement, probation and a fine imposed on 85-year-old doctor described by counsel as a “very frail and forgetful old man” who was “the primary caretaker” of his 76-year-old wife, notwithstanding probation office’s calculation of 57-71 month Guideline for illegal sale of prescriptions).
  50. See Chase, 560 F.3d at 830-31 (lack of prior record may support variance notwithstanding its reflection in Guidelines’ Criminal History score).
  51. See, e.g., United States v. Moreland, 703 F.3d 976, 991 (7th Cir. 2012) (“age 59 is not elderly in our society; the elderly do not have a license to commit crime”) (Posner, J.).
  52. See U.S.S.G., Ch. 5, Part H, Introductory Commentary & §§ 5H1.1, 5H1.3, 5H1.4.
  53. See Gall v. United States, 552 U.S. 38, 51, 53-60 (2007); Pepper v. United States, 131 S. Ct. 1229, 1242-43, 1247 (2011).
  54. Nelson v. United States, 555 U.S. 350, 352 (2009).
  55. See Chase, 560 F.3d at 830-31.
  56. See Old Behind Bars, at 10-12, 88-95.
  57. See id. at 9-12, 88-95.

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