The Expressive Value of Prosecuting Aged Defendants: A Rebuke of Ageism

A common normative justification for criminal trials is their expressive value. The prosecution of aged defendants, especially those with deteriorating health, seemingly presents new expressive challenges, where the value of judging and punishing past wrongs seems to conflict with sympathies for the elderly, the seeming futility of prosecuting individuals who are unlikely to serve much of a sentence if convicted, and the seeming cruelty of putting the frail/ill through lengthy and taxing trials. Drawing from philosophical literature on respect for persons and the morality of aged-based differential treatment, this paper argues that deciding not to prosecute would be a communicative disservice to the old-defendants, living victims and those left behind, and other aged individuals within a society-by treating the aged as less agentic or as if their past lives and past actions, admirable or detestable, should no longer be associated with them, nor praised or condemned.