We posted yesterday on how the law should deal with consumer scams directed at older people in light of evidence that older people are more susceptible to deception. After the post, Ted Mermin, consumer-law expert and head of the Public Good Law Center, pointed out that some states' consumer protection statutes authorize greater penalties against a perpetrator of consumer deception if the victim is 65 or older (e.g., California, Delaware, and Arkansas). And, stepping beyond consumer law, section 3A1.1(b) of the 2010 federal sentencing guidelines authorize a sentence enhancement "if the defendant knew or should have known that a victim of the offense was a vulnerable victim . . .." The Sentencing Commission's "application notes" go on to say that "'vulnerable victim' means a person . . . who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." (emphasis added) (Taken together, the guideline and application note are similar, though not identical, to section 3A1.1 of the 1987 Sentencing Guidelines.)
All of these provisions authorize greater penalties for people who harm older people. That may satisfy the goal of retribution -- in that we may prefer greater punishment for people who harm the vulnerable -- and it may even deter some deceptive conduct aimed at older people. But greater punishment doesn't address the question raised by the study discussed in yesterday's post: whether the underlying rules against deception should be different for older people because they are particularly susceptible to deception.