Today, I read that George Weller, the octogenarian who drove through a Santa Monica farmers’ market, killing ten and injuring seventy, will receive probation for his crimes.

Los Angeles County Superior Court Judge Michael Johnson made it clear that Weller deserved a harsh prison sentence after being convicted on 10 felony counts of vehicular manslaughter. But Johnson said that little would be served in sending the frail elderly man to jail.

“Today, Mr. Weller stands convicted of 10 serious felonies and he is asking for leniency in sentencing,” Johnson said. “Yet, he has never once expressed in court any remorse for his actions.

“I will never understand his stubborn and bullheaded refusal to accept responsibility to put this matter to rest for everyone, including himself,” Johnson said.

“George Weller clearly deserves a prison sentence. The devastation that he has caused and the indifference that he has displayed support no other conclusion,” the judge said.

“The fact that he deserves prison doesn’t mean he should get it,” the jurist noted. “I believe the courts need to be practical as well as principled and I don’t see any purpose in sending Mr. Weller to jail or prison. It wouldn’t do anybody any good.”

Personally, it strikes me that while each step in the argument is sound, the result is not; essentially it means that Weller gets away with it. But the case raises a bigger systemic question: how well-prepared is our criminal justice system to deal with a rise in the number of elderly criminals?

As Baby Boomers age, and as people who have spent most of their lives in prison are released and live longer, the number of elderly defendants in everything from white-collar crimes to murder will inevitably go up. I don’t know how often the argument that someone is essentially too old to be put in (or back in) prison is invoked, but eventually we’ll see cases of people who are in their 70s or 80s, are given probation on the grounds that they’ll be dead soon anyway, then live another twenty years. In a sense, our assumption that we can outsource justice to the Grim Reaper will no longer be as true as it once was.

What happens then? There’s at least one book on the subject, Ronald Aday’s Aging Prisoners: Crisis in American Corrections; I haven’t read it, but given the title, I assume this isn’t a future we’ve prepared well for.