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Boomers in the Dock

By Evan A. Jenness
November 25, 2008

Some baby boomers have come of age on the wrong side of the law, and the older prison population is burgeoning. Fortunately, Booker and its progeny have superseded the Sentencing Guidelines' strict limitations on leniency based on age and health. Although these factors are “not ordinarily” relevant under the Guidelines, courts must consider the “history and characteristics of the defendant” under 18 U.S.C. ' 3553, and variances may be based on old age and poor health. Gall v. United States, — U.S. —-, 128 S. Ct. 586, 601 (2007).

Although age and medical condition “do not approach what is required to justify a downward departure” under Guidelines, a 72-year-old convict's age nevertheless may support leniency. United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). Moreover, “old” for sentencing purposes is not necessarily old. A convict's age at 51 “can and should be considered.” United States v. White, 506 F.3d 635, 640 (8th Cir. 2007). Also see the citations to below-Guideline sentences for defendants over 40 based on reduced recidivism, which are collected in United States v. Ruiz, 2006 WL 1311982 at * 4 (S.D.N.Y. May 10, 2006) (unpublished).

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