ABA Journal


Sentencing/Post Conviction

Posner Advises Judges to Consider Cost of Imprisoning Elderly When Imposing a ‘Superlong Sentence’

Dec 20, 2012, 11:30 am CST


Does Judge Posner suggest that men aged 60 to 75 have no interest in sex? While my experience with sexual predators is zero I can assure him that many men (probably most) in their 80s and 90s are still interested. If not physically certainly in their minds!

Predators such as the above described individual (I will not call him a man) should receive a life sentence PERIOD. Throw away the key.

By DawnMat on 2012 12 20, 4:40 pm CST

I'll be Debbie Downer and argue that between the multi-decade gap in work history, criminal record, and plain old age discrimination it's VERY unlikely that a prisoner released in his mid-70's will obtain enough work to meaningfully contribute to the tax base. He'd be entitled to full Medicare and Social Security, and quite likely also entitled to Medicaid, Food Stamps and housing assistance, among other programs.

On the other hand, adjusting to life on the outside after several decades behind bars might be significantly less comfortable for the inmate for the above reasons, and thus perhaps fitting. Managing the technological and social changes that have occurred in the decades since the person was locked up, plus the loss of family, friends and other connections would be also daunting.

By Esq. on 2012 12 20, 5:01 pm CST

I too am sickened by the seemingly incurable sickness that drives people to sexually assault children.
However, everything has a cost and resources are limited. If we "throw away the key" we are also throwing away opportunities to spend those resources more wisely. If children are the priority the money is better spent on schools, community development programs and parent education to prevent these heinous crimes.
This is not merely theoretical, the empirical evidence of the long term resource drain can be found throughout our country. Nowhere more profoundly than in my State, California, where poorly thought out laws such as "three strikes" and "mandatory sentences" have bankrupted the state, drained money from schools and shown no meaningful reduction in crime rates.

By Erick Victor Munoz on 2012 12 20, 5:51 pm CST

These massive costs of giving criminals everything for free have been created by overgentrified judges in the first place. It is little wonder that we are losing competitive ground to societies that purge themselves of such wrongdoers immediately following the convictions.

By B. McLeod on 2012 12 20, 7:02 pm CST

@3. I agree our resources could be better spent. My preference would be to drop them on a deserted island and let them fend for themselves but we have become too civilized to repeat Devil's Island. California's three strikes has been carried too far, using minor infractions to exact revenge. Some think that mandatory sentences deter criminals. True--if the mandatory sentence is life w/o or that deserted island.
@4. Agreed. For example we the people paying for a sex change operation for a convicted murderer and $700M to his lawyer who successfully argued for it..

By DawnMat on 2012 12 20, 8:26 pm CST

Lock them up and throw away the key! Pay for it with higher gasoline taxes. I propose a new $1/gallon federal tax on motor fuel. It's worth it to keep scum off the streets.

By Curtis on 2012 12 20, 8:40 pm CST

The Gillette Torvik Blog points out that Judge Posner has been making this argument since, at least, 1987.

By Mike on 2012 12 20, 9:14 pm CST

There should be no walker or wheelchair patients in any prison

You should visit a prison before you criticize Judge Posner

I have seen it, it is no way to treat old people, regardless of their past crimes

Compassionate release should be expanded and should be able to be initiated by the family of the inmate in federal cases

Every State should have a compassionate release program that can be initiated by the family

By Andrew Ottaway on 2012 12 21, 12:02 pm CST

Andrew- Judge Posner is not recommending compassionate release. His stance -- whatever you think of it -- is based purely on his ideology. He is of the law and economics school, and his is a pure economic analysis. Even if economics equals or trumps justice, I think given the age of the criminal upon possible release, and the crime here, his logic is somewhat flawed.

By donniem23 on 2012 12 21, 12:14 pm CST

My comments are based on my ideology.

Old people should be released to their family

There are many old dopers who need to die at home, if they have a home somewhere

Justice should trump neverending confinement

By andrew ottaway on 2012 12 21, 12:24 pm CST

#4 please send me the name of the overgentrified judges that you personally have practiced before in your career

I have not met any, but I have only been practicing poverty since 1985

In 25 years I have not had the pleasure of meeting a judge who coddles prisoners

By andrew ottaway on 2012 12 21, 12:27 pm CST

I don't find Posner's reasoning all that persuasive in these circumstances. The fact is that an individual convicted of a sex crime against a child is someone that we KNOW is a risk to children. I am not sure that the victims of the 1.1 percent of the perpetrators between 70 and 75 would feel less victimized by the fact that taxpayers saved some money. The economics of incarceration should have no place in the sentencing of these types of offenders.

By Amy on 2012 12 21, 1:45 pm CST

Perverts, ponzi schemers, murderers, and other psychotic criminals need to be taken out of society. Some need punishment by loss of freedom, others are animals who must be segregated from the rest of us... FOREVER. The costs to society to let these individuals loose exceeds the financial costs of keeping them caged. I respectfully suggest the esteemed professor spend some quality time in a max security prison with the inmates-- he may soon see the light.

By Goldcoaster on 2012 12 21, 2:02 pm CST

Couldn't there be some middle ground, like a thirty year executed sentence followed by 20 years of closely supervised parol?

By IndyCanary on 2012 12 21, 2:07 pm CST

Yes, by all means. We should throw away the key on anyone and everyone.

It's funny how in this country we talk about prison being for rehabilitation, yet it is handled as retribution, and treated as such. That is all Posner is arguing. The rehabilitative effects will have long worn off by the time the full sentence is imposed, and is only serving for retribution after a certain point. Yes, this guy is complete scum, but he is still a human being, and must be treated as such. Calls for killing them, dropping them on deserted islands, etc. only goes to show that you are no better than them. The mark of a civil society is one that treats everyone with dignity, regardless of what they have done. You can't take the moral high ground when you are talking about killing someone in the name of justice. You just get dragged down to their level.

Are there ways to handle these situations where someone is incurable and not able to integrate back into society? Certainly, but a half century behind bars, which I can assure you will not be easy for a murderer, much less a child abuser, is not the answer.

By Wouldn't You Like To Know on 2012 12 21, 2:44 pm CST

The recidivism rate for sex offenders is directly correlated to whether or not the perpetrator used violence or threat of violence to accomplish a rape. Recidivism for sex offenders has nothing to do with age. It has to do with method and motivation. Remember the phrase "dirty old man"? It exists for a reason. The drop-off in recidivism rates in the elderly only happens if there was no violence to accomplish sexual assault. Judge Posner is either willfully ignorant of that scientific fact, or worse. I challenge the right Honorable Judge to read a few studies on the best predictors of recidivism rates amongst sex offenders--before voicing what amounts to his brazen ignorance. Get educated Judge.

By Connie Hartmann on 2012 12 21, 3:36 pm CST

Is Judge Posner advocating age discrimination?

By SH on 2012 12 21, 3:44 pm CST

@10. We are not talking about dopers. They can been weaned off the dope (usually). Child predators -- not yet.
@15. We are not throwing the key away on "anyone and everyone." Only those whose acts are so vile we lack the means of rehabilitation or redemption or cure. These people have given up their right to mingle with society and right now there are two ways to prevent that. Incarceration or death. And yes, we are seeking revenge in these cases since we don't have any way to "fix" them.

By DawnMat on 2012 12 21, 3:50 pm CST

This article demonstrates to me that we are far too kind to our prisoners.

By Brian on 2012 12 21, 4:09 pm CST

And I believe that the primary purpose of prison should be punishment, not rehabilitation.

By Brian on 2012 12 21, 4:12 pm CST

#19 - Wish we could drop you into Menard CC for a day so you could come back and report the entire list of egregious kindnesses that you witnessed.

By Curtis on 2012 12 21, 4:23 pm CST

@ #10: "Justice should trump neverending confinement"

If there is no death penalty (in many states) and we eliminate life behind bars as a penalty, how do we as a society provide adequate punishment for the most egregiously heinous crimes?

By Esq. on 2012 12 21, 4:59 pm CST

I think the 45 year old man who rapes children is a bad case example. A 75 year old man can overpower a small child through fear and intimidation as well as physical force.

A better example in my opinion would be a 45 year old violent robbery / murder 2 convict. Not very likely he's going to be keeping that up at the age of 75 or 80.

By Bah Humbug on 2012 12 21, 5:24 pm CST

"But a freed prisoner may also get a job and contribute to those programs through payroll taxes."

Yes, there is such an incredibly high demand in the workforce for elderly ex-convicts.

By faddking on 2012 12 21, 5:39 pm CST

This discussion, from start to finish, falls apart becuase you haven't seperated the purposes of incarceration, and then applied the facts to meeting the purpose. Posner did, too.

1. Punishment: A life sentence, whether actual or practical, is the second-worst punishment (some say worst) so letting them out early does not meet the purpose of a life sentence. But call a spade a spade: 40 years to a 20 year old is not the same punishment to a 60 year old.

2. Deterrent; fits hand in glove with punishment.

3. Rehabiliation: seldom works for any but the less serious/low sentence crimes; not working for sex crimes.

4. Removal danger from society: i think this is where he was headed. You lock up a thief so he won't steal. So why not release him when he's too old, or infirm, to steal? An embezzler can do it all his life; the car thief has a shorter professional life. So let them out when they are harmless and save us some money.

here's the problem: An old child molester can do a whole lot of harm to a child without the "ultimate" molestation. That we need to protect our children from. But I'd let the car thief out when he's too old to drive.

Maybe the solution is in the $70,000 a year. We may need that to keep the 25 year old behind bars, but we can secure the 70 (and 90!) year old a whole lot cheaper: a single 6' picket fence is cheaper than a series of 20' electrified chain links with guard towers!

By Hadley V. Baxendale on 2012 12 21, 6:05 pm CST

@#8: Yes, and thank you for your comments. We do need more possibilities for compassionate release.

By lee on 2012 12 22, 5:48 pm CST

This may be a poor example, but Judge Posner has a point. Keeping 70 year old's locked up is not a good use of resources when that person is unlikely to be a danger to society. This particular individual because of the nature of his crime may be the exception as is a Bernie Madoff who was elderly when he committed his crimes and therefore must be imprisoned as an example to others. But a person who is imprisoned in his 20's or 30's who is convicted of an offense other than wilful murder should not just have his sentence piled on to the point that his old age is spent in prison. If a person ceases to be a threat then he/she should be let out.

By George Sly on 2012 12 22, 6:51 pm CST

Offer them a pistol with a single round. A win-win solution.

By B. McLeod on 2012 12 22, 8:28 pm CST

@connie hartman: recidivism for sex offenders is directly related to whether or not they used force or were violent? That's ridiculous and I would love to see your support for such an argument. But, more importantly, if you are correct, then most sex offenders who prey on children should be paroled early because they rarely if ever use violence. Instead, these offenders befriend the child and Ingratiate themselves with the child and, sometimes, with the child's family. Think Jerry Sandusky and catholic priests.

By Fnlawyer on 2012 12 24, 1:40 am CST

I have only read this article and not Posner's opinion itself, but the statistic the judge is reportedly focusing on is absolutely the wrong one to look at. The important question is not what percentage of offenders are age 70-75 but rather what percentage of prior offenders re-offend between ages 70-75, i.e., the recidivism rate. That may, in turn, depend on the age at which the earlier offense(s) were committed, rather than simply the person's age at the time of release.

For example, if it turned out that 80% of prior offenders re-offend sometime after age 70, then that would probably be of greater interest than what portion of the overall population of sex offenders they consistute. Likewise, if it turns out that prior offenders offend after age 70 at a frequency similar to that of the rest of the general population, then locking them up past age 70 has no preventative value. (Or at least no more than locking up 70 year olds from the general public at random, a practice that few would probably defend for its preventative value.)

Posner's main point, though, that the risk a person poses should be weighed against the cost to society of addressing the risk, is sound. For $70,000 a year times 100 ($7 million), you could probably find other steps to take that would prevent more than one instance of child abuse.

By not given on 2012 12 26, 7:09 pm CST

Not Given,
The opinion is free to the public:
Although I found your comment thoughtful, especially the part about locking up 70-year-olds at random. Certainly would prevent some crime.

By Curtis on 2012 12 26, 7:21 pm CST

Without getting into the larger philosophical debate about the role of punishment in our society, I don't think economics and the costs to society are always a necessary factor. The point is justice...justice to the victim. If the crime mandates the sentence, then the perpetrator should do that time. If I'm the victim (or the parent of the 11 year old) then I'm not worried about Posner's calculations.

By SME on 2012 12 27, 3:58 pm CST

One of the goals of the criminal justice system is to maintain civility in society. Take the thief for example. Yes, one point of locking up the thief is to keep him/her from stealing again. However this is a much more profound reason. If the thief steals from the victim, the victim first impulse may be to seek some sort of revenge against the thief for the transgression. However this is not necessary since the victim can trust the criminal justice system to appropriately punish the thief, making such "self help" unnecessary. If this function of the criminal justice system were disrupted then the resort to self help would cause society to descent into varying states in lawlessness.

By SME on 2012 12 27, 4:03 pm CST

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