Thursday, December 20, 2012

Posner on punishment

Mr. Torvik may have a different memory but I am pretty sure that the very first Torts class we had went like this.  We were assigned to read the Case of the Thorns (or Hulle v. Orynge 1466. Y.B.M. 6 Edw. IV, folio 7, placitum 18 for citation freaks). After taking roll,  our professor asked us to identify the "procedural posture of the issue for decision."  He simply went around the room asking that over and over.  It was like the Paper Chase.   People were eventually reduced to blurting out random words and someone, probably Mr. Torvik, finally said a demurrer.  Sometimes, maybe often, the procedural posture is not the most interesting thing about a decision. 

Consider yesterday's decision in U.S. v. Craig out of the Seventh Circuit.  The procedural posture is a motion by the defendant/appellant's attorney to withdraw as counsel on an appeal of a criminal sentence because counsel had determined that the appeal was frivolous.  The motion was granted because it appears that the trail court judge accurately followed the United States Sentencing Guidelines when he sentenced a producer of child pornography to 50 years in prison. 

But check out the concurrence by Richard Posner (and check out our other coverage of Judge Posner here.)  Judge Posner writes a 5-page concurrence "to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences."  The defendant in Craig was 46 at the time of his sentencing.  Thus, a 50-year sentence is all probability life sentence (even if he earns the maximum good-time credits, the defendant would be either 89 or 90 at the time of his release). 

Judge Posner notes that in 50 years 96 might be middle-aged rather than "elderly, but on the basis of existing medical knowledge we must assume that in all likelihood the defendant will be dead before his prison term expires." 

Judge Posner points out that the average cost of imprisoning someone in federal prison is between $25,000 and $30,000 per year.  However, the estimated cost for elderly prisoners is more than twice that; perhaps as much as $70,000 per year.  Of course, old people are likely to be on Medicare and maybe Medicaid so there would be an expense on the government if the elderly prisoner were free.  On the other hand, Judge Posner notes, that society also loses the value of what the prisoner might lawfully have earned if free.

Judge Posner writes that the "social costs of imprisonment should in principle be compared with the benefits of imprisonment to society.  The main societal benefits are deterrence and incapacitation.  So, a sentencing judge should "consider the incremental deterrent and incapacitative effect of a very long sentence compared to a somewhat shorter one."  The defendant was convicted of vile, monstrous might be a better word, crime.  However, Judge Posner suggests that having sentenced the defendant to life imprisonment, "The implications for costs, incapacitation, and deterrence create grounds for questioning the length of the sentence."

Prisoners are incapacitated so they cannot commit more crimes. Judge Posner questions whether a 50-year sentence is stops the defendant from committing more crimes than a 30 year sentence.  Judge Posner notes that "1.1 percent of perpetrators of all forms of crimes against children are between the ages of 70 and 75."  The judge asks, how "many more can there be who are older than 75?"  Some might say tell that to the 1.1. percent who were victims.  Judge Posner does not talk about them. 

On the same point, while considering whether the defendant could have been released at 76, the 73-year-old judge writes that "capacity and desire to engage in sexual activity diminish in old age."  No citation appears next to this sentence so the reader can be forgiven for thinking that this is too much information from Judge Posner. 

With respect to the deterrent effect, Judge Posner doubts that a 50-year sentence deters more people than a 30-year sentence.  In discussing this, Judge Posner assumes that the defendant (and all criminals) consider the "expected punishment cost" minus the "benefit he would derive, in satisfaction of his sadistic sexual urges, from committing these crimes."  This is an interesting assumption.  I assume that criminals simply do no think they are going to be caught.  What do you think Mr. Torvik, do lawbreakers perform the equation suggested by Judge Posner?

Judge Posner does correctly note that the defendant (and I assume most other criminals) probably had no idea what his punishment would be.  As the judge notes, the Justice Department does not publicize punishment levels.  I agree with the judge about that and  wonder why there is not more publicity about the sentences for various crimes.  Perhaps because the Justice Department make the same assumption I do, no one thinks they will get caught breaking the law.  Comedian Norm MacDonald has a bit about another aspect of being sentenced to prison that may not be publicized enough.

The flaw in Judge Posner's thinking, and he acknowledges it at the end of his concurrence, is that there is value to punishing crime.  Judge Posner admits he cannot think of a way to value that.  The defendant in this case repeatedly assaulted a girl between the ages of 11 and 14.  Maybe the first 30 years were for the deterrent/incapaciation factors Judge Posner describes and the last 20 were for punishment.  Some people, maybe even most people, would say that some who commits the type of crime Mr. Craig did, deserves life in prison.  Of course, just like criminals are generally unaware of the length of the possible sentences they face, most people have no idea what the cost is of incarcerating the elderly. 

What do you think Mr. Torvik, is 50 years too much for this defendant?  Should people be let out of prison at 75 (or some other number) just because it is expensive to incarcerate the elderly?

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