Sandusky Sentencing, Age, and a Reader Poll

Former Penn State defensive coordinator Jerry Sandusky was sentenced yesterday to 30 to 60 years in prison on 45 counts of sexually abusing boys. The New York Times has the story here. The sentencing judge could have imposed a much longer cumulative sentence, but said: “I’m not going to sentence you to centuries. It makes no sense for a 68-year-old man. This sentence will put you in prison for the rest of your life.”

Those remarks contrast sharply with the approach taken by Denny Chin, the judge who sentenced convicted Ponzi schemer Bernie Madoff, then age 71, to the maximum possible sentence of 150 years in prison. The Times story on the Madoff sentencing is here, and a long story in which Judge Chin discusses his approach to the case is here. In short, Judge Chin viewed the longer-than-life sentence as carrying symbolic weight.

North Carolina law allows a judge to consider the defendant’s age at sentencing. Under G.S. 15A-1340.16(e)(4), it is a mitigating factor if a defendant’s “age . . . at the time of the commission of the offense significantly reduced the defendant’s culpability.” In capital cases, G.S. 15A-2000(f)(7) provides that “[t]he age of the defendant at the time of the crime” may be a mitigating circumstance, and the case law is clear that the circumstance may apply to elderly defendants as well as young ones.

Note, however, that both of the cited provisions refer to the defendant’s age at the time of the crime, suggesting that age is relevant because it may affect an individual’s maturity or thought process and therefore his or her blameworthiness. By contrast, the judge in Sandusky’s case seems to have been concerned with Sandusky’s age at the time of sentencing. (I say that based mainly on the judge’s comment about Sandusky’s age at the sentencing hearing. Furthermore, Sandusky was much younger at the time of many of his crimes, and in any event, there is no suggestion that any of his crimes were influenced by age-induced impulsivity, dementia, or the like, so his age at the time of the crimes does not appear to be particularly relevant.)

I’m not aware of North Carolina cases addressing how a defendant’s advanced age at the time of sentencing, or his or her remaining life expectancy, should be considered by a judge imposing a sentence, though my anecdotal sense is that judges sometimes do impose more lenient sentences based on defendants’ ages. Under federal law, a defendant’s advanced age may be a basis for a more lenient sentence. See U.S.S.G. § 5H1.1 (so stating, and noting as an example that “[a]ge 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”).

One consideration that sometimes arises is that geriatric prisoners may incur large medical bills on taxpayers’ dimes. However, that concern may be addressed in part by the medical release provisions contained in G.S. 15A-1369 et seq. and the palliative care provisions in G.S. 148-4(8).

What do you think, readers? Assuming that a defendant is not experiencing age-related mental health problems that influence his or her culpability, should a defendant’s advanced age or limited life expectancy, have any bearing on the sentence imposed?

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