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 adequat

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