Another Contributing Factor to Low Sentences -- Age (11/14/13)

This past week I participated on a panel for the California State Bar titled Hot Topics in Criminal Tax Matters.  The panelists were Robert Horwitz, Tom Moore (AUSA San Francisco), Richard Pietrofeso (IRS Laguna Niguel), Steven Toscher (Hochman, Salkin, Rettig, Toscher & Perez, P.C. Beverly Hills,) and myself.  One issue that came up was the general recognition that offshore account sentences seem light relative to nonoffshore account sentences.  I have previoiusly blogged on this subject.  See Sentencing Leniency for Offshore Tax Cheats (Federal Tax Crimes Blog 11/3/13), here, and  Lower Sentences For Offshore Tax Cheats - Role of 5K1 Departures (Federal Tax Crimes Blog 9/28/13), here.  One of the participants at the conference, Richard Pietrofeso suggested another contributing factor -- age.  A Tax Notes article of the panel discussion reports (Kristen A. Parillo, Government Views Offshore Account Crackdown as a Success Despite Few Jail Sentences, 2013 TNT 218-4 (11/12/13)):

Richard Pietrofeso, area counsel (Laguna Niguel), IRS Criminal Investigation division, surmised that the jail sentences have been low because many of the offshore account holders were elderly and some had accounts that traced back to the Holocaust.

His point was that the demographics of the population of the more egregious offshore offenders -- the ones who are prosecuted -- are probably skewed toward older defendants who have had the opportunity to accumulate more wealth and therefore have the larger offshore accounts.  When those defendants are prosecuted, a sentencing judge might well consider advanced age in sentencing, particularly with respect to departures under the Guidelines and variences under Booker.

The Sentencing Guidelines has a policy statement related to age:

§5H1.1.     Age (Policy Statement)
Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.  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.  Physical condition, which may be related to age, is addressed at §5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).

 According to my data in the spreadsheet (admittedly not complete as to age, but probably fairly representative), the average age at conviction for taxpayers is 70 years old, with 84 years old being the oldest.