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Sentencing/Post Conviction

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

Posted Dec 20, 2012 6:30 AM CDT
By Debra Cassens Weiss

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Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals has some advice for judges tempted to substitute “a superlong sentence for a merely very long sentence.”

Consider the costs, Posner says in an opinion concurring in the dismissal of an appeal filed on behalf of a 46-year-old child pornography defendant. The Illinois man was sentenced to 50 years in prison for photographing his sexual assaults on a girl who was age 11 when the abuse began; his lawyer withdrew after deciding there was no ground to attack the sentence.

Posner chose the case to air his views on sentencing though the defendant is "a highly unsympathetic character," the Wall Street Journal Law Blog (sub. req.) reports.

“I write separately merely to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences,” Posner wrote. “If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though ‘only’ 89 or 90 if he receives the maximum good-time credits.”

Posner cites an estimate that the costs of imprisoning an elderly inmate ranges from $60,000 to $70,000 a year. That’s not a net cost, Posner says, since a freed prisoner will likely receive Medicare and maybe Medicaid benefits for medical care. But a freed prisoner may also get a job and contribute to those programs through payroll taxes.

“Suppose the defendant had been sentenced not to 50 years in prison but to 30 years. He would then be 76 years old when released (slightly younger if he had earned the maximum good-time credits). How likely would he be to commit further crimes at that age?” Not likely according to Posner, who cites statistics that only 1.1 percent of perpetrators of crimes against children are between 70 and 75 years old, and only 1.3 percent are between 60 and 69.

“I am merely suggesting,” Posner says, “that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge’s sentencing decision.”

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