De Facto Life Sentences Contemplated in the 7th

     CHICAGO (CN) – An otherwise run-of-the-mill sentencing appeal became a forum for 7th Circuit Judge Richard Posner to air his views on de facto life sentences.
     For three years, David Craig had repeatedly sexually assaulted a child who was friends with his daughter. In addition to photographing his abuse, Craig also threatened to kill the girl if she did not email him additional photos in sexually explicit positions. The victim was 11-years-old when the abuse began.
     Craig eventually pleaded guilty in Illinois to four counts of producing child pornography.
     Though the guidelines recommended a life sentence, the statutory maximum for each count was 30 years. U.S. District Judge J. Phil Gilbert ordered a total of 50 years imprisonment: 30 years on one count to run consecutively with 20-year concurrent sentences on the remaining three counts.
     Since Craig was 46 when convicted, he will be 96 when released.
     “On the basis of existing medical knowledge we must assume that in all likelihood the defendant will be dead before his prison term expires,” Posner wrote.
     The 7th Circuit affirmed Craig’s sentence Tuesday, but Posner penned 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.”
     Judges should consider the economic costs of imprisonment, he argued, pointing out that an elderly prisoner costs the government between $60,000 and $70,000 a year.
     “That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses,” Posner wrote. “But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes.”
     Moreover, though sex offenders have a higher likelihood of recidivism than most criminals, Posner pointed out that “capacity and desire to engage in sexual activity diminish in old age.”
     Since the Justice Department “does little to publicize punishment levels for the various federal crimes,” it is also unlikely that Craig contemplated his sentence when committing the crime.
     Because the deterrent effect is likely minimal, a 30-year sentence may have been just as effective in this case.
     Though weighing such considerations admittedly involves guesswork, Posner concluded, “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.”

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