Anti-aging researchers and their investors are beginning to make bold claims about the future of their field. Bank of America predicted that the market for anti-aging products will grow to $610 billion by 2025, roughly six times what the market is today. Citigroup listed anti-aging medicines among its top ten “disruptive innovations.” Interest in the field extends beyond mere words as well. Notably, Google’s anti-aging company Calico, with a boost from the drug company AbbVie, amassed a stunning $2.5 billion in funding by 2018. Researchers are saying that this explosion in the market will bring with it a flood of products that work to slow or reverse aging at a deep level. Aubrey De Grey, a leading voice in the field of anti-aging, has made the claim that the first person to live to 1,000 years has already been born. Notable inventor and futurist Ray Kurzweil is so optimistic about advances in the field that he began to take hundreds of pills per day to stay healthy long enough to reach “longevity escape velocity,” i.e., getting to the first “bridge” in the technology will continue to extend one’s life enough to allow them to get to the next big development, a process which could continue indefinitely.
The prospect of such change brings up some puzzling legal questions. One particularly challenging issue that will likely arise as this technology begins to develop is the legal framework around criminal justice in an age of agelessness, especially around issues in sentencing, punishment, and access to the technology.
The first question would be whether denying access to anti-aging treatments is cruel and unusual punishment prohibited by the 8th Amendment. It is not immediately clear whether anti-aging technology is a medical treatment for which there is an established right to have access to via the Supreme Court’s holding in Estelle v. Gamble. Although Estelle does refer to “evolving” standards of decency, its exact holding only creates a cause of action stemming out of “deliberate indifference to a prisoner’s serious illness or injury.” Generally, a prisoner must show, in part, that “that he had been suffering from a severe and obvious illness or injury at the time the medical treatment was not forthcoming.” Convincing a court that aging is a serious illness may be a difficult task early in the development of this field, especially considering that the FDA does not even consider aging to be a disease. The first therapies, which may only extend life by ten to twenty years, are more akin to being denied access to the healthiest available diet or a more active lifestyle. But a denial of the first therapy could present the hidden, but very speculative danger of dying before the next big break through and failing to hit longevity escape velocity. Crimes such as bank robbery, which don’t traditionally result in capital punishment but do lead to long sentences, could end up denying inmates decades of life which they could have achieved. Just saying no to prisoner’s requests for access may forestall difficult questions around sentencing and punishment, but it could end up being intolerably cruel.
If courts do grant prisoners access to these treatments, that also would present its own host of questions. One early fight could center around who will pay for the treatments. The benefits of the earliest forms of this technology would likely accrue to the richest members of our society. But if prisons and state governments were forced to pay for this treatment, it could raise fears about creating an incentive system to go to prison. This is not an unheard of phenomenon. So long as the potential gains in life expectancy can outweigh the time of the sentence, it would seem rational for some – especially those who already have a criminal record – to enter the system to get access to anti-aging technology.
As this technology develops, it could change the way that lawyers and judges conceptualize the fundamental goals of punishment (such as retribution, deterrence, rehabilitation, etc.). Balancing retributive goals for the most heinous crimes, some of which currently carry life sentences, may be a difficult problem. Denying prisoners access to anti-aging treatments in order to make their life sentences servable would be controversial measures that are arguably tantamount to a death penalty. Twenty-one states have already outlawed the death penalty and the tide against capital punishment has been growing. Indefinite sentences are also likely to be controversial. Some justice systems already recognize that there should be limits to the amount of time that a person should spend behind bars, such as Norway’s, which imposes a twenty-one-year maximum sentence. But difficulties may lie in setting that time amount without aging, and these technologies and their consequences may undercut goals of punishment beyond retribution, such as incapacitation, rehabilitation, and deterrence. Norway’s twenty-one year sentence limit represents roughly a quarter of the average Norwegian’s life. That sentence likely incapacitates the prisoner for a duration of time which typically would align with the peak age for crime, and therefore serves to age the prisoners out of crime. With slowed aging, a twenty-one year sentence becomes a much lighter sentence compared to lifespan and may not represent a period of time which ages prisoners past their peak age of crime. This concern would spready beyond Norway or that amount of time, it would undercut those goals of punishment in many systems, including our own.
Although thinking about this issue at this stage of the development of anti-aging technology may be putting the cart before the horse, the most optimistic projections about this technology present the possibility that the legal community could be blindsided by rapid developments in the field before the end of the first half of the century. One anti-aging researcher even stated that developments in this field will happen seven times faster than the development of flight in the 20th century. Given the tremendous risk of cruelty to certain populations, the law must be ready to respond rapidly to an evolving situation.
* Joseph Maher is an Associate Editor on the Michigan Technology Law Review.