WisBar News: Judge Posner Comments on De facto Life Sentences, Noting Costs of Incarceration:

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    Judge Posner Comments on De facto Life Sentences, Noting Costs of Incarceration

    Joe Forward
    Legal Writer

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    David Craig was sentenced to 50 years in prison, a de facto life sentence. In a concurring opinion, Judge Richard Posner reminded judges to carefully consider whether to impose such sentences.

    Judge Posner Comments on De facto 
Life Sentences, Noting Costs of Incarceration Dec. 18, 2012 – Convicted on four counts of producing child pornography, David Craig was sentenced to 50 years in prison. Since Craig was 46 when sentenced, he will likely die in prison, a de facto life sentence.

    On appeal, the U.S. Court of Appeals for the Seventh Circuit upheld the sentence in U.S. v. Craig, No. 12-1262 (Dec. 18, 2012), noting the maximum statutory sentence on the charge was 30 years, but the judge was entitled to impose a consecutive sentence for multiple counts.

    However, Judge Richard Posner wrote a concurring opinion “to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences,” noting that Craig will likely die in prison.

    He said that it costs the federal government between $25,000 and $30,000 per year to house a federal prisoner, and an estimated $60,000 to $70,000 for elderly prisoners because of medical expenses. Perhaps they would receive Medicare or Medicaid if freed.

    “But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes – which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free …,” Judge Posner wrote.

    Judge Posner also questioned the likelihood that Craig would commit further crimes at the age of 76 if released after 30 years instead of 50, noting that less than three percent of all men arrested for sex offenses last year were age 65 and older. He cited statistics that just over one percent of perpetrators committing crimes against children are between 70 and 75.

    “How many can there be who are older than 75,” asked Judge Posner, also questioning the deterrent effect of imposing longer 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 very long sentence, should figure in the judge’s sentencing decision.”

    Joe Forward is the legal writer for the State Bar of Wisconsin.