Weighing Prison When the Convict is Over 80

By John Eligon and Benjamin Wiser, www.nytimes.com

October 10, 2009

In a case involving an 87-year-old man convicted of racketeering, a federal judge in Manhattan rejected a plea for leniency last year, giving the man a five-year sentence. The judge in this case had a special perspective: He was 84 himself.
But in another case this spring, an 85-year-old man who admitted providing sensitive military information to Israel was spared prison by a judge, who cited the man’s advanced age and said sending him to prison would “serve no purpose.”
In the 12 days they spent deciding the fate of Brooke Astor’s son, Anthony D. Marshall, the jurors said they did not make much of his age. But now that Mr. Marshall, who is 85 and had quadruple bypass surgery last year, has been found guilty of a variety of charges, his age can be expected to have some bearing on his sentence — though it almost certainly will not serve as a get-out-of-jail-free card.
Because he was convicted of first-degree grand larceny, which is a felony, Mr. Marshall faces at least a mandatory sentence of one year behind bars (the most would be 25 years). But given his age and his physical ailments — he missed several days of the trial because of his health — and various possible legal options, it seems reasonable to question how much time Mr. Marshall will spend as an inmate.
In Mr. Marshall’s case, Justice A. Kirke Bartley Jr. of State Supreme Court in Manhattan, who is scheduled to sentence Mr. Marshall on Dec. 8, has relatively little wiggle room to keep Mr. Marshall out of prison because of the state’s mandatory guidelines.
Mr. Marshall’s grim reality is nothing new; courts are regularly confronted with the recently convicted who are octogenarians, and who often have ailments associated with that age. 
But judges in New York have not been reluctant to impose real prison time on elderly defendants, like John J. Rigas, 80, who received a 15-year sentence, later reduced to 12, for his part in the Adelphia fraud case.
“Here’s why age should be considered,” said Gerald L. Shargel, a lawyer who represented Oscar S. Wyatt Jr., 83, who received a year and a day for violating the rules of the United Nations oil-for-food program. “It’s a pretty cruel end to a life if a person’s going to die in jail, when you don’t have a family member, a loved one, to hold your hand or see you through it,” he said.
For Justice Bartley to spare Mr. Marshall prison time, he most likely would have to throw out the jury’s verdict in the interest of justice, a step that judges almost never take.
Mr. Marshall’s lawyers are expected, at the very least, to ask Justice Bartley to allow their client to remain free until all appeals are exhausted. Beyond that, there is not much Mr. Marshall’s defense team can do other than hope that an appellate court finds in his favor.
“You can be sure that we’re looking into all the avenues that can be pursued,” said Kenneth E. Warner, one of Mr. Marshall’s lawyers.
Mr. Marshall’s best chance to avoid prison probably would have been a plea deal before trial, but there were never any serious negotiations.
As an inmate, Mr. Marshall may still be able to spend some nights in his own bed. If he receives the minimum sentence, he would be immediately eligible for the work release program, which allows inmates to spend a certain number of days each week out of prison so they can work, said Linda M. Foglia, a spokeswoman for the state’s Department of Correctional Services.
Mr. Marshall, who would most likely be placed in a minimum- or medium-security prison with barracks-style housing that holds up to 60 inmates, would be one of the oldest prisoners in New York: Fewer than 1.5 percent of the state’s inmates are older than 65, according to Ms. Foglia.
In the past, some judges have taken creative steps to spare an elderly defendant.
Leslie Crocker Snyder, a former State Supreme Court justice in Manhattan, said that in one of her cases, the Rockefeller drug laws required her to sentence a man in his 80s to 15 years to life for a low-level offense. So she asked the prosecutors if they would consent to vacating the verdict and allow the man plead guilty to a lesser charge for a shorter sentence. They did, she said. But that was a “highly unusual” move, said Ms. Snyder, who would not address the Astor case specifically.
John W. Moscow, a former prosecutor in the Manhattan district attorney’s office, said he decided against trying Clark Clifford, who was indicted in the B.C.C.I. case, because he was 86 and had had quadruple bypass surgery, and his doctors said he could not spend more than two hours a day in court. But Mr. Moscow said he would not feel sorry if Mr. Marshall had to serve some time.
“Tough,” Mr. Moscow said. “The law does not make an exception for him.”
Leonard F. Joy, the federal defender in New York, said that for the oldest defendants even a short prison term “may very well be a life sentence.”
“Of course, when you get to be that age, you ought to know better,” added Mr. Joy, who is 79.

The age issue arose in May when a federal judge in Manhattan was asked to spare an 85-year-old New Jersey man from going to prison. The defendant, Ben-Ami Kadish, hobbled into the courtroom and admitted providing classified United States military documents to an Israeli agent in the early 1980s. (He pleaded guilty to a lesser offense.) 
His lawyer, Jack T. Litman, cited Mr. Kadish’s poor health and other factors. “He is in the very twilight of his life, and to separate him from his wife even for a short period of time would be devastating to both of them,” Mr. Litman argued. 
The judge, William H. Pauley III, saying that prison “would serve no purpose,” fined Mr. Kadish $50,000.
In the case of Ciro Perrone, a captain in the Genovese crime family, the 87-year-old mobster confronted a judge not much younger than he was.
Mr. Perrone had been convicted in a racketeering case, and faced about six years in prison.
His lawyer asked for one year, citing Mr. Perrone’s age and health, and noting that Mr. Perrone’s wife had Alzheimer’s disease. In court papers, federal prosecutors in Manhattan called the proposed sentence “ludicrously lenient.”
The judge, Robert P. Patterson Jr., 84, imposed a five-year sentence. Then he addressed the defendant.
“Let me just say, Mr. Perrone, I’m not too young either,” the judge said. “And I have a wife who suffers from Alzheimer’s, so I know what you go through.”
But he said this type of crime was serious, and warranted a “significant enough sentence” to deter such conduct.
“Having said that,” Judge Patterson said, “I feel for you and I wish you the best.”.

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