Torvik on Gillette on Posner on Punishment

Great post, Mr. Gillette. I find it cosmically amusing that you started out your post talking about the first case we read in law school, because I read about this Posner concurrence earlier today and it reminded me of the first thing I remember reading about in Crim Law—a case that involved whether to impose sentences that keep people imprisoned into the senescence. For whatever reason, the case always stuck with me. With the issue in the news I thought, "I should look into that and do a post about it."

Well, I just pulled out my old Criminal Law textbook and found the case (with the help of my Crim Law "outline," which, yes I still have). The case is U.S. v. Jackson, 835 F.2d 1195 (7th Cir. 1987). Incredibly, the memorable part of that case is a concurrence by—you guessed it!—none other than Judge Posner:

There is little doubt that if [Defendant] were released tomorrow he would commit a bank robbery, perhaps on the same day. But it is extremely unlikely that if he were released 25 or 30 years from now (he is 35 years old) he would resume his career as a bank robber. We know that criminal careers taper off with age, although with the aging of the population and the improvements in the health of the aged the fraction of crimes committed by the elderly is rising. Crimes that involve a risk of physical injury to the criminal are especially a young man's game. In 1986 more than 62 percent of all persons arrested for robbery (any sort of robbery — I can find no breakdown by type of robbery) were below the age of 25, and only 3.4 percent were 60 years old or older. The only age group that accounted for a smaller percentage of arrests for robbery than persons 60 to 64, or 65 and older, were children below the age of 10 — and, remarkably, there were almost as many arrests in that group as there were of persons in the 65 and over group (199 versus 209). Bank robbery in particular, I suspect, is a young man's crime. A bank robber must be willing to confront armed guards and able to make a quick getaway. To suppose that if Jackson is fortunate enough to live on in prison into his seventies or eighties it would still be necessary to detain him lest he resume his life of crime after almost a lifetime in prison is too speculative to warrant imprisoning him until he dies of old age. The probation officer who conducted the presentence investigation of Jackson and compiled a meticulous 16-page single-spaced presentence report covering every facet of Jackson's history, personality, and criminal activity recommended a 10-year sentence. This may well be too short, but it is some indication that imprisonment for the rest of Jackson's life is too long if the only concern is with the crimes he might commit if he were ever released. 

The remaining possibility is that this savage sentence is proper pour encourager les autres. Indeed, deterrence is the surest ground for punishment, since retributive norms are so unsettled and since incapacitation may, by removing one offender from the pool of offenders, simply make a career in crime more attractive to someone else, who is balanced on the razor's edge between criminal and legitimate activity and who now faces reduced competition in the crime "market." Thus, even if one were sure that Jackson would be as harmless as a mouse in the last 10, or 15, or 20 years of his life, his sentence might be justified if the example of it were likely to deter other people, similarly situated, from committing such crimes. This is possible, but speculative; it was not mentioned by the district judge. 

We should ask how many 35 year olds would rob a bank if they knew that if they were caught it would mean 20 years in prison with no possibility of parole (the sentence I would have given Jackson if I had been the sentencing judge), compared to the number who would do so if it would mean life in prison. Probably very few would be deterred by the incremental sentence. Bank robbery is a crime of acquisition, not of passion; the only gains are financial — and are slight (in 1986 the average "take" from a bank robbery was $2,664. The net gains, when the expected cost of punishment is figured in, must be very small indeed. Clearance rates for bank robbery are very high; of all bank robberies investigated by the FBI during 1978 and 1979 (and virtually all bank robberies are reported and therefore investigated), 69 percent had been cleared by arrest by 1982.  Conviction rates are high (90 percent in federal prosecutions for bank robbery) and average punishments severe (more than 13 years for federal defendants). It's a losers' game at best. Persons who would go ahead and rob a bank in the face of my hypothetical 20-year sentence are unlikely to be deterred by tightening the punishment screws still further. A civilized society locks up such people until age makes them harmless but it does not keep them in prison until they die.

(citations omitted).

I have to say that Posner's reasoning struck me as profound when I read it in law school, and I am still persuaded by it. It is true that punishment serves other purposes, at least theoretically, than deterrence, but 20 years in jail is plenty for those purposes as well.

So, to answer your question, Mr. Gillette, I do think 50 years is probably too much for the defendant in Craig because I agree with Posner that sentencing people to rot away in prison long after they pose any real danger to society (and indeed while they could contribute to society) is perverse, counter-productive, immoral, and uncivilized.

That said, the most remarkable thing about Posner's concurrence in this week's Craig decision is that he is still on the bench, 25 years after Jackson, making the exact same arguments on the exact same issues. That has to get boring.