Elderly Defendants

As the average life span increases, the population of elders involved in the court system grows. Thus, there has been some concern about how elders are treated when in court, in prison, and on death row.

Elders on Trial

Although research is limited, some studies have shown that elders are perceived to be less credible as witnesses, perhaps because the accuracy of their memory is in doubt. There is also scant research as to how elders are treated when they are defendants. Anecdotal evidence suggests that age may affect the decisions of some jurors and judges. In 2006, 89-year-old George Weller was on trial for driving his car through a farmers’ market and killing 10 people. The jury found him guilty of manslaughter, which was the most severe of their verdict options. Several members of the jury told the media that the jury had decided that the defendant’s age should not affect their verdict. The judge sentenced him to probation, noting that Weller’s frail health would pose difficulties for the prison system. Furthermore, the judge feared that Weller’s health would suffer if he was sent to prison. Thus, both jurors and the judge commented on the defendant’s age when discussing their decisions. In a second case, 86-year-old Edgar Killen was on trial in 2005 for killing three men in 1964. During voir dire, the prosecutor asked potential jurors whether the defendant’s age or health would affect their decisions. The jury rejected the murder charges and, instead, found the defendant guilty of manslaughter. The judge awarded Killen the maximum sentence of 60 years. In his official opinion, the judge recognized that the lengthy sentence was essentially a life sentence but noted that age is not a factor in sentencing. As these cases illustrate, age could be influential in determining the outcome of a trial in some cases. Research is needed to determine if age has a statistically significant effect on trial outcomes.

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Elders in Prisons

In recent years, the number of elderly prisoners has grown. This has led to concern that prisons are ill equipped to meet the special needs of elders, such as special dietary needs and those arising from physical limitations. Prisons have implemented a variety of solutions. Some prisons have released nonviolent elderly prisoners; others have released prisoners who are very ill and deemed to be at low risk of recidivating. Some prisons have developed programs that release prisoners with ankle bracelets that monitor their movement. Finally, some prisons have created separate geriatric units for elder prisoners. These units are tailored to the needs of the elderly. Most of these options are implemented because prisons are not physically or financially able to meet the needs of elder prisoners.

Elders on Death Row

The approximately 100 elders who are on death row present a different kind of challenge; in recent years, several court cases have challenged the constitutionality of executing elders. One case involved 76-year-old Clarence Allen, a wheelchair-bound death row prisoner, who suffered from many ailments, including blindness. Before his 2006 execution, he claimed that his execution would violate the Eighth Amendment prohibition on cruel and unusual punishment.

While the U.S. Supreme Court has determined that it is unconstitutional to execute juveniles, the mentally ill, and the mentally retarded, the Court has refused to consider cases concerning the execution of elders. The Court determined that these other groups do not have the mental capacity that makes someone deserving of the death penalty. For instance, psychological research has indicated that juveniles are immature and are sometimes unable to logically consider the outcomes of their actions. Similarly, the limited mental abilities of the mentally ill and the mentally retarded make the death penalty inappropriate for such prisoners. Most elders are not likely to receive the same leniency from the Court, unless they can show some mental deficit (e.g., Alzheimer’s disease or dementia) that would make their conditions similar to that of the mentally ill or mentally retarded.

In determining whether the death penalty violates the Eighth Amendment, courts often also consider whether such punishment violates the community’s “evolving standards of decency.” For example, the Supreme Court determined that the community was opposed to executing the mentally ill. It is difficult to determine the public’s opinion about the execution of the elderly because researchers have not studied this issue as thoroughly as they studied opinion about executing members of the other groups. There is anecdotal evidence that the public may not support execution of elders in some cases. Before 74-year-old James Hubbard was executed in 2004, his friends and community members started a petition asking the governor to convert his death sentence to life in prison. Hubbard suffered from cancer and dementia; he no longer understood why he was on death row awaiting execution. Thus, his supporters felt that he did not deserve to be put to death. Despite the public support for Hubbard, the courts and governor refused to stop the execution.

Psychologists have much to learn about how elders are treated in the legal system. Research is needed to determine how age affects verdicts and sentences, how prisons can best meet the needs of elder prisoners, how age-related mental problems affect the capacity to understand one’s situation, and whether the public supports the execution of elders.


  1. Bornstein, B. H. (1995). Memory processes in elderly eyewitnesses: What we know and what we don’t. Behavioral Sciences and the Law, 13, 337-348.
  2. Elgit, H. C. (2005). Ageism and the American Legal System. Gainseville: University Press of Florida.
  3. Gaydon, L. B., & Miller, M. K. (2007). Elders in the justice system: How the system treats elders in trials, during imprisonment, and on death row. Behavioral Sciences & the Law, 25(5), 677-699.
  4. Lemieux, C. M., Dyeson, T. B., & Castiglione, B. (2002). Revisiting the literature on prisoners who are older: Are we wiser? Prison Journal, 82, 440-458.

Return to the overview of Trial Consulting in Forensic Psychology.