Imagine two doctors who illegally sold opioids in exchange for cash. Both doctors sold roughly the same quantity of pills, had no prior criminal convictions, and accordingly faced the same sentencing guidelines range. The major difference was that one doctor was in his sixties and considerably older than the other doctor. The Federal Sentencing Guidelines provide that judges should consider a defendant's age only in atypical cases. Yet, this Article demonstrates that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime.

This Article gathers sentencing data for almost 130 doctors convicted in federal court of illegally selling opioids. These defendants all committed the same crime--drug dealing--and often sold similar quantities of drugs. Yet, the older defendants fared much better. When a guidelines sentence would have kept a defendant in prison past the age of sixty-five, judges sentenced below the guidelines in eighty-one percent of cases. By contrast, younger doctors received below-guideline sentences in only fifty-five percent of cases, which is consistent with sentencing data for all crimes. Older defendants not only received more frequent sentence reductions, but larger sentence reductions.

Most startling, this Article documents how some judges based their sentencing decisions not on the Federal Sentencing Guidelines, but instead, on the defendants' likely age of death. Judges appear to start with an age of release in mind--often in the defendant's mid-seventies--and work backward from there to compute the sentence. These judges seem focused on ensuring that older defendants will be released in time to live some of their remaining years outside of prison.

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29 Elder Law Journal 249-314 (2022)