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

Posted on by Marcia Shein

In our last post, we discussed how federal courts have been reluctant to consider a defendant’s age when assigning sentences. Americans over the age of 50 comprise a large portion of defendants in white collar prosecutions. However, courts have been very reluctant to consider a defendant’s advanced age when making sentencing determinations and defendants like Mauricio Cohen Assor, age 77, are facing lengthy sentences that may result in dying in a prison hospital.

Why have courts been so reluctant to consider a defendant’s advanced age when determining a sentence? The past language of the sentencing guidelines caused courts to take a pessimistic view of using age as a sentencing factor. The previous language stated age was “not ordinarily relevant” when calculating a sentence. As a result, trial courts were hesitant to consider a defendant’s age in giving a downward departure, courts of appeal regularly upheld denying age-based downward departures, and granted age-based downward departures were overturned on appeal.

This month, the sentencing guidelines changed in an important way for older defendants. The new language from the sentencing guidelines manual states, “Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age… are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.” The guidelines also specifically state, “Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.”

The new language in the federal sentencing guidelines will give sentencing judges broader discretion to give a defendant an age-based downward departure. For older white collar defendants like Mauricio Cohen Assor, this offers greater hope that they will not receive a sentence that is disproportionate to their life spans and greater hope that they can spend the end of their lives with their families.

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