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March 3, 2013

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

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March 3, 2013 at 12:22 PM | Permalink


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If the sentencing analysis were to become statutorily limited to public safety and incapacitation, this debate would end. The other thing that might end would be the devastating health costs to get an inmate through end of life care ($250,00 in the private sector, ten times more in the public sector).

If 123D becomes the law, there would be no dangerous criminals older than 18. They would all be deceased, and serious crime would have decreased by 90%. That means a reduction of 20 million FBI Index felonies a year for 50 years or a billion serious crimes. Say each crime takes out $10,000 from the economy (more like $100,000, counting real estate value losses), that would mean $10 trillion returned to the economy. That can never happen until the lawyer hierarchy protecting the criminal and the lawyer employment he generates is eradicated. Kill 15,000 lawyer internal traitors, make $10 trillion ($100 trillion counting real estate losses of 40% in a high crime area).

The horrible economic impact of a member of the lawyer hierarchy far exceeds that of a 9/11 terrorist. Take the internal enemy out with drones. They are making war on our nation. One insurmountable problem today? They have taken control of the three branches of government, and make 99% of policy decisions. Elected officials are hapless figureheads. Party affiliation and political philosophies make very little difference. They have infected our government like an HIV virus takes over the DNA of a cell. They reproduce their sicko, rent seeking cult doctrines via law school indoctrination. The law school is a potential vulnerable pressure point.

Posted by: Supremacy Claus | Mar 3, 2013 12:54:56 PM

A term of years sentence is not a death sentence.

That a defendant chooses to commit their crime late in life takes the full risk of forfeiting their freedom for their last years of life. The idea that just because you are old, you get a lesser sentence essentially suggests that an older person's remaining years are worth more than anyone else. That is absurd.

Posted by: David | Mar 3, 2013 6:42:46 PM

This scheme may encourage crime by the elderly, especially those with a pre-existing, uninsurable condition. Past a certain age, one becomes numb and no longer needs anymore than a simple cell, three meals, good medical care, and availablity of continual supervision, to prevent wandering away and getting lost in winter. One does need access to the internet, so a plea deal should include referral to a facility providing free wi-fi.

Posted by: Supremacy Claus | Mar 3, 2013 8:47:50 PM


It is a complicated question. On one hand, you are correct. Indeed, if anything a health-based argument should cut the other way. That it is better to keep younger people out of prison where there is still an opportunity for them to become productive citizens whereas elderly people are not normally as economically productive. In fact, most elderly people subside to a greater or lesser degree on state aid anyway so who cares if it happens in prison or via Social Security.

The difficulty with that line of thinking is it ignores the economic realities. The cost of prisoner care is not consistent throughout the lifespan but increases the older the prisoner gets. As a point in fact, older prisoners are far more expensive to take care of than younger ones. In other words, it costs more to punish an older prisoner than a younger prisoner for the same law-breaking activity. So in an era when budges are tight or being cut is locking up elderly people the most effective use of scarce resources?

So while it sounds absurd at first glance to suggest that an older person's remaining years are worth more than than a younger person's, viewed from the perspective of costs it actually is not absurd at all. It is a fact. Their years are more valuable; it costs more to care for them.

Posted by: Daniel | Mar 4, 2013 1:53:10 AM

Daniel. I don't think judges should be making that calculation in an individual case, if for no other reason than they are not qualified. Just because we are lawyers doesn't mean we know everything.

Regardless, the government is paying for their healthcare. The question is, from what account? Few will have their own, private, non subsidized health insurance.

Posted by: David | Mar 4, 2013 9:51:24 AM

@David: We already require judges to make such judgments for myriad reasons. There's abundant research that elderly defendants are more expensive to care for, and yet, considerably less likely to re-offend than younger ones. I see no reason why Congress could not take note of this in its enumeration of factors the sentencing judge is permitted to consider.

Posted by: Marc Shepherd | Mar 4, 2013 11:53:06 AM

In my very own idea, of course it is a factor. Can you sentence a person who is a cancer patient and needs to be confined in the hospital to serve a particular sanction to pay for what he had done?

Posted by: official website | Mar 12, 2013 5:11:41 AM

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