Judge Posner On The Costs And Benefits Of Imprisoning The Elderly

I am not a criminal lawyer and I have no experience, education or meaningful understanding about the sentencing of convicted criminals. So I am not in a position to critique this recent concurring opinion by Judge Richard Posner of the Seventh Circuit Court of Appeals, except to say that it clearly reveals his “law and economics” approach to all things legal.  Posner can turn any problem–including sentencing–into a cost/benefit analysis.

The case involved an appeal by a convicted child pornographer, aged 46, who was sentenced to 30 years on one count, followed by 20-year concurrent sentences on each of three remaining counts, to run consecutively with the 30-year sentence, for a total effective sentence of 50 years. Thus, the defendant will be 96 before he is released (assuming he lives that long and setting aside good time credits, which would only reduce his sentence by about six years).  His appeal was dismissed as frivolous.

Judge Posner wrote a concurring opinion in which he urged trial judges, in their sentencing decisions, to consider the marginal costs and marginal benefits of imprisoning the elderly.  After observing that an elderly prisoner costs the prison system an estimated $60,000 to $70,000 per year (compared to an estimated $25,000 to $30,000 for the average prisoner), Judge Posner wrote:

The social costs of imprisonment should in principle be compared with the social benefits of imprisonment to society, consistening mainly of deterrence and incapacitation.  A sentencing judge should therefore consider the incremental deterrent effects of a very long sentence compared to a somewhat shorter one.

. . .

Sentencing judges should try to be realistic about the incremental deterrent effect of extremely long sentences.

. . .

I am merely suggesting 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 long sentence, should figure in a judge’s sentencing decision.