An 85-year-old alcoholic regularly beats his disabled 62-year-old child to the point of her requiring hospitalization. A 77-year-old woman poisons to death her 81-year-old husband who is suffering from chronic pain. A 68-year-old nursing home resident sexually assaults another patient. An 81-year-old hermit shoots a bill collector from the gas company. These and other scenarios of geriatric crime will increase in frequency as technology keeps Americans living longer than ever.

The problems of the elderly are unique. Not surprisingly, therefore, the aged remain unincorporated into the justice system, where prisons are not designed for them, and the objectives of justice for the elderly defendant have never been clearly established. The time has come, for many reasons, to develop a research initiative to guide the courts beyond arbitrary decision making in cases of elderly defendants.

Whenever sentencing need not follow mandatory guidelines, the goals of prosecution and incarceration can be fluid. Rehabilitation, isolation, punishment, and deterrence are all evaluated with a different emphasis depending upon the actor and the crime. Sentencing and disposition standards that apply to the mentally ill, for example, when ethically applied, reflect the court's appreciation for isolation and, to a lesser degree, rehabilitation.

Some time ago, juvenile justice recognized the need to address the younger defendant with creative correctional alternatives that nonetheless adequately protect the public. We still wrestle with the disposition of young perpetrators of devilishly horrible acts. However, the prevalence of drug education and treatment programs and novel initiatives for first-time offenders demonstrates how far along the push is to transform the terrible adolescent into a salvageable adult.

If we can learn any lesson from the modern juvenile justice system, it is that distinguishing the elderly as being of a different criminal mind will raise fundamental issues of fairness. Though most professionals are willing to consider elderly defendants differently from the younger norm, creating excuses for crime is never good public policy.

What do we know about the conscience of the elderly? Their choice of victims? How about the illness of aging and the brain- are they equivalent to insanity? Does Alzheimer's affect the capacity to form intent? How about alcohol encephalopathy? How about mere senescence? Strictly applying the principles of moral and legal wrong ignores the fact that an aging mind is often even more unlike the younger adult mind than is the adolescent.

We know far too little about criminal recidivism in the population over 70. Which geriatric defendants really need to be isolated? From whom? Why or why not? What is the goal for correction of a person whose brain shows atrophy on a CT scan? What behavioral modification exists for those with diseases of aging? What punishment is adequate for an elderly person who needs to move around less than to maintain familiar surroundings? And how should corrections facilities be designed to accommodate the unique limitations of the elderly?

When prison separates someone from a nursing home, and disorients a patient with fragile cognition, when is that cruel and unusual? Does committing a crime, even a violent one, mandate that a geriatric perpetrator be placed in a nursing care facility involuntarily for the rest of his life? The 74-year-old physically ill defendant, who is given the most cursory of medical attention under today's managed care model, can expect this amount to a life sentence. And if he is unlucky enough not to die quickly, he faces separation from a life of independence that may last even longer than if he were a younger defendant. Is this an intervention of necessity? If so, what implications does this have for the death penalty in the elderly, and physician-assisted suicide?

The cases of Vincent Gigante, a convicted Mafioso well into his 70's, and real estate tycoon Harry Helmsley, whose younger wife was ultimately imprisoned, illustrate the uncertainty of disposition for the elder criminal. Gigante's case, which progressed through trial, particularly highlighted these issues. The geriatric elements of the case were obscured, however, by the spectacle of his having acted as the Genovese crime family boss for so many years. But Gigante, Helmsley and others signal that the time is now right for turning our attention to the elderly, whose behavior and biological, psychological, and social changes are distinctive.

The roots of the relationship between psychiatry and criminal law transcend the M'Naghten Rule and other standards. Psychiatric input can mitigate or aggravate responsibility. Sentencing and disposition are affected by behavioral science input. Now, let's learn what we need to learn in order to meaningfully guide the courts through the dawn of the elderly defendant.