The Case Against Leniency for Elderly Criminals

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No, seriously. Hear me out on this.

The big China law news this week involves reform of the Criminal Law, specifically the reduction in the number of crimes whose penalties include capital punishment. The Guardian article on the subject includes a handy list:

  • Smuggling antiquities
  • Smuggling precious metals
  • Smuggling rare animals and rare animal products
  • Smuggling ordinary goods and materials
  • Receipt fraud
  • Financial document fraud
  • Credit note fraud
  • Writing false VAT receipts for tax reimbursement
  • Selling forged VAT
  • Theft
  • Teaching criminal methods
  • Theft of ancient cultural relics
  • Theft of fossils

So no more capital punishment for those offenses if the drafts are accepted. I’m against the death penalty in general, but I’ll support any reform that reduces the number of eligible crimes.

I assume that some folks in the Central Government decided that all the international criticism wasn’t worth it, particularly since the deterrent “benefit” of killing criminals for white collar, and some other, offenses was impossible to prove. In other words, China was paying a PR penalty for this but not reaping any rewards.

This is marginally interesting (I’d be more excited if the death penalty was outlawed entirely), but there are other issues with the Criminal Law reform that I’d like to discuss. The one that has me puzzled involves old folks.

No Leniency for You, Granny

There are several proposed amendments to the law that provide leniency for offenses committed by people over the age of 75 or under the age of 18. I completely understand this with respect to minors, who are traditionally treated differently under the law because we assume that minors do not have the same mental capacity to understand the moral implications of their actions. Fair enough.

But this leniency for old folks stumps me. In the US, which has a very long capital appeals process, I can understand not applying the death penalty for an old dude who would probably kick it before his final appeal was heard anyway. But in China, we are talking a couple/few months from first hearing to enforcement of the sentence.

So the proposed amendments include no death penalty if over the age of 75 and leniency (reduced sentences) for other crimes. What’s the thinking here? If juveniles are being cut some slack because they don’t understand their actions, then for old, wise folks who should know better, we should come down on them with the full force of the law, right?

Seriously, is this some sort of Confucian, respect for our elders sort of thing, or am I missing a logical, jurisprudential argument here?

7 responses on “The Case Against Leniency for Elderly Criminals

  1. Natalie Barnes

    I suppose that over the age of 75, you run the risk that the oldie may suffer from dementia, alsheimers etc which could affect the behaviour and have gone undetected until the point of the crime. If you give them leniency, you perhaps reduce the need to go through endless medical tests (expensive if not time-consuming) to prove that they are “fit” enough to be killed. But yes, it seems a ridiculous idea.

    1. Stan Post author

      Yeah, that occurred to me as well. Doesn’t seem like the sort of “free pass” usually built in to the criminal justice system, though. Also, of course, incidence of dementia, etc. in folks over age 75 is probably not high enough to justify the policy on those grounds. But hey, at least it’s a reason based on something.

  2. Sam

    An important part of the proposed leniency for these older guys is to approve their probation and reduce their prison time as much as possible. Locking them up is quite expensive, I guess. Think about the medical expenses etc.

      1. Sam

        I agree. And because of the cheap health care they receive (or do not receive), 75+ guys are more likely to kick, then it gets expensive… and ugly. That’s the “etc” part.