Are Elderly Criminals Punished Differently Than Younger Offenders?

cosby, elderly defendants — Bill Cosby leaves the courtroom after the verdict was announced in his sexual assault retrial on April 26, 2018 in Norristown, Pennsylvania. Mark Makela/Stringer/Getty Images

Bill Cosby was sentenced to three to 10 years in a state prison on Tuesday Sept. 25, after being convicted on three counts of aggravated indecent assault back in April. Cosby, who is 81 years old and legally blind, was taken from the courthouse in handcuffs. His bail was revoked. His lawyers had asked for house arrest because of his age and health.

The Cosby case raises a discomforting question. Should elderly offenders be treated more leniently by the courts than younger criminals, because they have less time left to live, and because their physical frailty might make it more difficult for them to survive a prison term?

For judges, it's a difficult call.

"Ten years for a 70-year-old is different from 10 years for a 40-year-old," explains Douglas A. Berman, a law professor at Ohio State University's Moritz College of Law and a nationally regarded expert on sentencing law. "There's a significant chance that a 70-year-old may not live through it." For someone such as Cosby, "functionally, even a shorter sentence can become the equivalent of life without parole."

While the rules vary from state to state, judges also often have considerable leeway to take a defendant's age into account, Berman says. The federal system only requires that a judge consider the history and characteristics of a defendant, and those vague boundaries allow jurists the option of extending mercy to geriatric offenders. At the state level, the requirements vary, but "there rarely are formal rules that say expressly that you can't think about age, or you have to do so. So it leads to a range of different judges weighing this factor, as well as other diverse factors at sentencing," says Berman.

The relatively few studies on the subject suggest that judges do often give older offenders a break. One study published in the Journals of Gerontology: Series B in 2000 found that in Pennsylvania courts, offenders in their 60s were 25 percent less likely to be sentenced to prison than those who were in their 20s, and their sentences were eight months shorter on average. Those who were in their 70s got an even sweeter deal — they were 30 percent less likely to end up behind bars than 20-somethings, and those who were incarcerated served 13 months less on average.

A Senior Citizen Discount?

More recently, a study by Arizona State University researchers, published in 2014 in the journal Criminal Justice Studies, similarly found that in the federal court system, judges gave older offenders a "senior citizen discount" when it came to jail time.

Berman said that sentencing elderly defendants raises challenging questions about the purpose of sentencing — in particular, whether the focus should be on punishment for the harm caused by an offender, or upon protecting society from further crime.

If protection is the most important factor, elderly criminals might seem to deserve a break, because research shows that they're far less likely to commit additional crimes. A December 2017 report by the U.S. Sentencing Commission, for example, found that over an eight year period, only 13.4 percent of offenders who were released from federal prisons at age 65 were eventually rearrested for other crimes. For offenders under the age 30, in contrast, 53 percent were arrested again.

But Cosby might not necessarily benefit from that reasoning. There's less certainty about whether sex offenders grow out of committing crimes as they age, Berman says.

Another important factor is the elderly defendant's history. A judge may have reservations about giving a lighter sentence to a person who committed crimes for years but wasn't caught and convicted until old age. In Cosby's case, for example, the judge allowed prosecutors to put on witnesses who accused Cosby of committing similar sex crimes as far back as 1982.

When judges are pondering sentences for elderly defendants, "There's a disinclination to give them the benefit of escaping justice for so long," Berman says.

But that may be balanced by another factor — the difficulty and expense of incarcerating older offenders, whose health care needs cost between four and eight times what younger prisoners require, according to the Pew Charitable Trusts.

"It really doesn't matter whether we're talking about the federal system or those of any state," Hank Fradella, a professor and associate director of the School of Criminology & Criminal Justice at Arizona State University and one of the authors of the 2014 study on federal sentencing, says in an email. "The fact of the matter is that it costs a lot of money to care for older prisoners who have health problems. Some systems (like the federal one) have specialized correctional facilities that, obviously, cost much more money to run than other types of correctional facilities. Even if states have special units to do the same, they are often cash-strapped and unable to provide the levels of care that seriously unhealthy inmates need."

"As a result, many states use compassionate release programs to discharge seriously ill offenders from their correctional systems," Fradella writes. "But that really doesn't help many inmates since they may not have anywhere else to go. Their social support system may be weak to nonexistent because they have been incarcerated."