Boomers in the Dock

Some baby boomers have come of age on the wrong side of the law, and the older prison population is burgeoning. Fortunately, Booker and its progeny have superseded the Sentencing Guidelines' strict limitations on leniency based on age and health. Although these factors are “not ordinarily” relevant under the Guidelines, courts must consider the “history and characteristics of the defendant” under 18 U.S.C. ' 3553, and variances may be based on old age and poor health. Gall v. United States, — U.S. —-, 128 S. Ct. 586, 601 (2007).

Although age and medical condition “do not approach what is required to justify a downward departure” under Guidelines, a 72-year-old convict's age nevertheless may support leniency. United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). Moreover, “old” for sentencing purposes is not necessarily old. A convict's age at 51 “can and should be considered.” United States v. White, 506 F.3d 635, 640 (8th Cir. 2007). Also see the citations to below-Guideline sentences for defendants over 40 based on reduced recidivism, which are collected in United States v. Ruiz, 2006 WL 1311982 at * 4 (S.D.N.Y. May 10, 2006) (unpublished).

Advanced age and poor health fit well into ' 3553 factors, including the need to impose just punishment, avoid unwarranted sentencing disparities, protect the public, afford adequate deterrence, and effectively provide needed medical care. Experts are one key to a convincing showing. A physician, geriatric specialist, mental health professional, and/or prison conditions expert may be able to demonstrate that incarceration would be substantially more punitive for an older client than the typical convict. An evaluation should document a client's medical and mental health conditions, history of surgeries or treatment, need for monitoring or care by specialists, prescribed medications, dietary needs, and projected maladies. An appraisal of specific dangers to a client if imprisoned may be important and should be easy to support, given the wealth of literature on the problems facing older inmates.

Relatively Greater Punishment

Sentencing leniency based on old age and infirmity promotes the penal goals of imposing sufficient punishment and avoiding unwarranted sentencing disparities. Incarceration is substantially more punitive for older convicts than the 38-year-old “heartland” federal inmate. Health and other problems of older inmates “accelerate their aging processes to an average of 11.5 years older than their chronological ages after age 50,” and first-time offenders are particularly “easy prey” for more experienced predatory inmates. U.S. Department of Justice, National Institute of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates (2004). Elderly prisoners experience relatively greater health and mental health problems (including stress, fear, depression and social isolation), are more vulnerable to abuse and predation, and have a higher suicide rate, than younger inmates. U.S. Bureau of Prisons, Clinical Practice Guidelines for Management of Major Depressive Disorder (May, 2001). They also suffer disproportionately from prisons' lack of privacy, noise, and brisk pace. See Ronald H. Aday, Aging Prisoners: Crisis in American Corrections (2003).

Disproportionate Reduction of Freedom

An older or infirm client's relatively lower life expectancy supports leniency based on the penal goals of proportionality and avoiding unwarranted sentencing disparities. Any prison term is a larger proportion of the remaining years of an older defendant, and life expectancy tables support the commonsense argument that prison time imposes disproportionately greater punishment on an older defendant. For example, a 78-month sentence is half the remaining life of the typical 71-year-old white-collar defendant, but only about 15% of that of the heartland convict, who would have a full life ahead after prison.

The effect is even greater for clients with health problems, which are aggravated by the adverse impact of imprisonment on health and life expectancy. Accordingly, one court granted 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. McFarlin, 535 F.3d 808, 810 (8th Cir. 2008). Another granted leniency because of a “high probability that lengthy incarceration will shorten” the defendant's life span. United States v. Martin, 363 F.3d 25, 49-50 (1st Cir. 2004). Mercy may be hard to come by, as illustrated by the 15-year term that U.S. District Judge Leonard Sand imposed on gravely ill, 80-year-old John Rigas. Judge Sand did, however, indicate he might later reduce the term if Rigas's condition became “terminal,” and even pre-Booker authority supports leniency where “imprisonment could be the equivalent of a death sentence.” United States v. Long, 977 F.2d 1264, 1277-78 (8th Cir. 1992).

Older and Wiser

Lenient sentences for older defendants are consistent with the goal of deterrence because recidivism rates “decline relatively consistently as age increases.” U.S. Sentencing Comm'n, Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines, at 12 (May 2004). For example, the recidivism rate is just 6.2% for a first-time-offender over 50 ' not even accounting for factors like the nature of the crime, education, marital status, and race, which may make a particular client even less prone to re-offend than the heartland convict. Reduced recidivism makes age and infirmity especially relevant in the post-Booker sentencing regime. United States v. Lata, 415 F.3d 107, 113 (1st Cir. 2005).

Adverse collateral consequences often coinciding with age, such as losing profitable employment, public office, or a license, are additional deterrents where they eliminate the incentive or opportunity to re-offend. Thus, a defendant's age (70) was 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. United States v. Davis, 537 F.3d 611, 613 (6th Cir. 2008). A successful professional's conviction alone may send a loud message that “crime does not pay,” whereas many heartland offenders' convictions go unnoticed by the public and press. Finally, imposing harsh sentences on the elderly and infirm can evoke public criticism of the justice system and thus undermine the goal of promoting respect for the law and general deterrence.

Worse Health and Greater Public Expense

Older prisoners' health deteriorates at a relatively greater rate than that of the general population, and the incidence of “fair to poor health” is over three times higher for incarcerated than non-incarcerated elderly males. Christine J. Sutton, From the Outside In: Using Public Health Data to Make Inferences About Older Inmates, 61 Federal Probation 77 (1997). Elderly inmates have relatively greater needs and suffer disproportionately from prisons' limited resources, insufficient preventive care, and reduced ability to provide an adequate diet.

The government regularly contends that the Bureau of Prisons (BOP) can accommodate any medical or other special needs. At least one court viewed with skepticism the BOP's “form letter trumpeting” its ability to handle medical conditions of all kinds and found leniency appropriate because “imprisonment posed a substantial risk” to the defendant's life. United States v. Gee, 226 F.3d 885, 902 (7th Cir. 2000). Even if the government is able to make a credible showing in a particular case, however, this “misses the mark” because the issue under ' 3553 is the need to provide medical care “in the most effective manner.” United States v. Wadena, 470 F.3d 735, 739 (8th Cir. 2006) (affirming probation for 67-year-old defendant requiring frequent dialysis).

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. Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences and Collateral Sanctions, 58 Stan L. Rev. 338, 351 (2005). “Older prisoners represent a low-risk, high-cost population that can serve as a vital release valve for a system on overload,” according to Prof. Jonathan Turley in written testimony before Congress last year. “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.” 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, 1st Session (Dec. 6, 2007). Demonstrating the past and potential future costs of a client's necessary medical care may drive this point home where a client requires expensive treatment or care by specialists.

Addressing Courts' Skepticism

The Guidelines' legacy of discouraging leniency based on age and health may die hard, and routine government arguments abound. First, age frequently dovetails with aggravating factors like the long duration, scope, or complexity of a scam, or the defendant's high position in a company. However, unlike age and health, these factors are already reflected in the Guidelines, including the upward adjustments for cumulative “loss,” “sophisticated means,” “aggravating role” and “number of victims,” and the increased base offense levels for tax and money laundering violations.

Second, the Bureau of Prisons' operations are largely opaque, and the government often argues that the defense has failed to justify a variance. However, once the defense presents evidence of a defendant's specific 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. Martin, 363 F.3d at 50.

Third, an elderly convict arguably was “old enough to know better” than to break the law. H.L. Mencken may provide the best rejoinder to this: “The older I grow, the more I distrust the familiar doctrine that age brings wisdom.”

Evan A. Jenness ([email protected]) is a criminal defense attorney whose offices are in Santa Monica, CA.

Some baby boomers have come of age on the wrong side of the law, and the older prison population is burgeoning. Fortunately, Booker and its progeny have superseded the Sentencing Guidelines' strict limitations on leniency based on age and health. Although these factors are “not ordinarily” relevant under the Guidelines, courts must consider the “history and characteristics of the defendant” under 18 U.S.C. ' 3553, and variances may be based on old age and poor health. Gall v. United States, — U.S. —-, 128 S. Ct. 586, 601 (2007).

Although age and medical condition “do not approach what is required to justify a downward departure” under Guidelines, a 72-year-old convict's age nevertheless may support leniency. United States v. Heldeman , 402 F.3d 220, 224 (1st Cir. 2005). Moreover, “old” for sentencing purposes is not necessarily old. A convict's age at 51 “can and should be considered.” United States v. White , 506 F.3d 635, 640 (8th Cir. 2007). Also see the citations to below-Guideline sentences for defendants over 40 based on reduced recidivism, which are collected in United States v. Ruiz, 2006 WL 1311982 at * 4 (S.D.N.Y. May 10, 2006) (unpublished).

Advanced age and poor health fit well into ' 3553 factors, including the need to impose just punishment, avoid unwarranted sentencing disparities, protect the public, afford adequate deterrence, and effectively provide needed medical care. Experts are one key to a convincing showing. A physician, geriatric specialist, mental health professional, and/or prison conditions expert may be able to demonstrate that incarceration would be substantially more punitive for an older client than the typical convict. An evaluation should document a client's medical and mental health conditions, history of surgeries or treatment, need for monitoring or care by specialists, prescribed medications, dietary needs, and projected maladies. An appraisal of specific dangers to a client if imprisoned may be important and should be easy to support, given the wealth of literature on the problems facing older inmates.

Relatively Greater Punishment

Sentencing leniency based on old age and infirmity promotes the penal goals of imposing sufficient punishment and avoiding unwarranted sentencing disparities. Incarceration is substantially more punitive for older convicts than the 38-year-old “heartland” federal inmate. Health and other problems of older inmates “accelerate their aging processes to an average of 11.5 years older than their chronological ages after age 50,” and first-time offenders are particularly “easy prey” for more experienced predatory inmates. U.S. Department of Justice, National Institute of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates (2004). Elderly prisoners experience relatively greater health and mental health problems (including stress, fear, depression and social isolation), are more vulnerable to abuse and predation, and have a higher suicide rate, than younger inmates. U.S. Bureau of Prisons, Clinical Practice Guidelines for Management of Major Depressive Disorder (May, 2001). They also suffer disproportionately from prisons' lack of privacy, noise, and brisk pace. See Ronald H. Aday, Aging Prisoners: Crisis in American Corrections (2003).

Disproportionate Reduction of Freedom

An older or infirm client's relatively lower life expectancy supports leniency based on the penal goals of proportionality and avoiding unwarranted sentencing disparities. Any prison term is a larger proportion of the remaining years of an older defendant, and life expectancy tables support the commonsense argument that prison time imposes disproportionately greater punishment on an older defendant. For example, a 78-month sentence is half the remaining life of the typical 71-year-old white-collar defendant, but only about 15% of that of the heartland convict, who would have a full life ahead after prison.

The effect is even greater for clients with health problems, which are aggravated by the adverse impact of imprisonment on health and life expectancy. Accordingly, one court granted 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. McFarlin , 535 F.3d 808, 810 (8th Cir. 2008). Another granted leniency because of a “high probability that lengthy incarceration will shorten” the defendant's life span. United States v. Martin , 363 F.3d 25, 49-50 (1st Cir. 2004). Mercy may be hard to come by, as illustrated by the 15-year term that U.S. District Judge Leonard Sand imposed on gravely ill, 80-year-old John Rigas. Judge Sand did, however, indicate he might later reduce the term if Rigas's condition became “terminal,” and even pre- Booker authority supports leniency where “imprisonment could be the equivalent of a death sentence.” United States v. Long , 977 F.2d 1264, 1277-78 (8th Cir. 1992).

Older and Wiser

Lenient sentences for older defendants are consistent with the goal of deterrence because recidivism rates “decline relatively consistently as age increases.” U.S. Sentencing Comm'n, Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines, at 12 (May 2004). For example, the recidivism rate is just 6.2% for a first-time-offender over 50 ' not even accounting for factors like the nature of the crime, education, marital status, and race, which may make a particular client even less prone to re-offend than the heartland convict. Reduced recidivism makes age and infirmity especially relevant in the post-Booker sentencing regime. United States v. Lata , 415 F.3d 107, 113 (1st Cir. 2005).

Adverse collateral consequences often coinciding with age, such as losing profitable employment, public office, or a license, are additional deterrents where they eliminate the incentive or opportunity to re-offend. Thus, a defendant's age (70) was 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. United States v. Davis , 537 F.3d 611, 613 (6th Cir. 2008). A successful professional's conviction alone may send a loud message that “crime does not pay,” whereas many heartland offenders' convictions go unnoticed by the public and press. Finally, imposing harsh sentences on the elderly and infirm can evoke public criticism of the justice system and thus undermine the goal of promoting respect for the law and general deterrence.

Worse Health and Greater Public Expense

Older prisoners' health deteriorates at a relatively greater rate than that of the general population, and the incidence of “fair to poor health” is over three times higher for incarcerated than non-incarcerated elderly males. Christine J. Sutton, From the Outside In: Using Public Health Data to Make Inferences About Older Inmates, 61 Federal Probation 77 (1997). Elderly inmates have relatively greater needs and suffer disproportionately from prisons' limited resources, insufficient preventive care, and reduced ability to provide an adequate diet.

The government regularly contends that the Bureau of Prisons (BOP) can accommodate any medical or other special needs. At least one court viewed with skepticism the BOP's “form letter trumpeting” its ability to handle medical conditions of all kinds and found leniency appropriate because “imprisonment posed a substantial risk” to the defendant's life. United States v. Gee , 226 F.3d 885, 902 (7th Cir. 2000). Even if the government is able to make a credible showing in a particular case, however, this “misses the mark” because the issue under ' 3553 is the need to provide medical care “in the most effective manner.” United States v. Wadena , 470 F.3d 735, 739 (8th Cir. 2006) (affirming probation for 67-year-old defendant requiring frequent dialysis).

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. Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences and Collateral Sanctions, 58 Stan L. Rev. 338, 351 (2005). “Older prisoners represent a low-risk, high-cost population that can serve as a vital release valve for a system on overload,” according to Prof. Jonathan Turley in written testimony before Congress last year. “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.” 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, 1st Session (Dec. 6, 2007). Demonstrating the past and potential future costs of a client's necessary medical care may drive this point home where a client requires expensive treatment or care by specialists.

Addressing Courts' Skepticism

The Guidelines' legacy of discouraging leniency based on age and health may die hard, and routine government arguments abound. First, age frequently dovetails with aggravating factors like the long duration, scope, or complexity of a scam, or the defendant's high position in a company. However, unlike age and health, these factors are already reflected in the Guidelines, including the upward adjustments for cumulative “loss,” “sophisticated means,” “aggravating role” and “number of victims,” and the increased base offense levels for tax and money laundering violations.

Second, the Bureau of Prisons' operations are largely opaque, and the government often argues that the defense has failed to justify a variance. However, once the defense presents evidence of a defendant's specific 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. Martin, 363 F.3d at 50.

Third, an elderly convict arguably was “old enough to know better” than to break the law. H.L. Mencken may provide the best rejoinder to this: “The older I grow, the more I distrust the familiar doctrine that age brings wisdom.”

Evan A. Jenness ([email protected]) is a criminal defense attorney whose offices are in Santa Monica, CA.