Old Age a Factor for Sentencing White Collar Defendants: Part I

Mauricio Cohen Assor was convicted on October 7 of hiding a $33 million hotel sale from taxation authorities. He is facing up to 11 years in prison at his December sentencing by U.S. District Judge William Zloch. An 11 year sentence is a long time for anyone to spend in a federal prison, but for Mr. Cohen Assor, at the age of 77, this could amount to a life sentence.

A large portion of defendants convicted of white collar crimes are in the later stages of life and are in a similar position as Mr. Cohen Assor. According to statistics compiled by the U.S. Sentencing Commission, almost half of all defendants sentenced in 2009 of tax offenses were older than 50. The numbers are also high for other white collar crimes including 28 percent of money laundering defendants, 22 percent of larceny defendants, and 20 percent of fraud defendants being over the age of 50. It makes one wonder; do these crimes deserve what amounts to a life sentence?

With so many older defendants being convicted in the Federal Court system, a downward departure from the sentencing guidelines because of a defendant’s age has been hard to obtain from a sentencing judge. According to sentencing commission statistics, only 2.6 of convicted defendants received a downward departure based on age in 2009.

Why has it been so rare for a court to consider a defendant’s age in sentencing? The federal sentencing guidelines have been in effect since 1987, and have been advisory and not mandatory since the Supreme Court’s 2005 ruling in the U.S. v. Booker case. However, statistics indicate that sentencing judges still strictly follow the guidelines.

In the next part of this post, we will discuss in more detail on the past state of the sentencing guidelines and a change in the sentencing guidelines that will have profound implications for older defendants like Mauricio Cohen Assor.