Old Timer Loses Bid to Reduce Gun Sentence

CHICAGO (CN) - Exploring the proper impact of age and life expectancy on sentencing decisions, the 7th Circuit affirmed a 6 1/2-year prison sentence given to a 70-year-old man convicted of illegal firearm possession.

Illinois resident Louis Johnson's sentence came from the bottom of the guidelines range for possession of a firearm by an unlawful user of a controlled substance.

Pointing out that black 70-year-old men have a life expectancy of 12.4 years, Johnson argued that his age should have factored into a below-guidelines sentence.

But the 7th Circuit rejected the appeal Monday, noting that the sentence will not exceed Johnson's life expectancy even without including time off for good behavior.

Judge Richard Posner, who has authored a book on the political and social issues related to the elderly, used Johnson's appeal as an opportunity to discuss what impacts age and life expectancy should have on sentencing.

Though the sentencing guidelines instruct judges to consider age when deciding to depart downward if the defendant is elderly and infirm, "this general rule must have exceptions," Posner noted.

"The 70-year-old criminal is a rara avis, and by engaging in criminal activity at such an age provides evidence that he may be one of the few oldsters who will continue to engage in criminal activity until they drop," Posner wrote for the court's three-judge panel.

Rara avis is Latin for "rare bird."

Johnson, who admitted to hosting crack and marijuana-fueled parties at his home as well as buying and selling guns, may be one such man, according to the court.

Preventing a convict from committing further crimes and deterring other criminals also support a harsher sentence, the panel found

"Suppose there were a rule that a person who commits a crime after his seventieth birthday can be sentenced to no more than six months in prison, lest he die there," Posner wrote. "Then those oldsters who like the defendant in our case do not terminate their criminal careers upon reaching that milestone will have only a weak disincentive to commit further crime."

Age and life expectancy are only two of the many factors a sentencing judge should consider, according to the decision. Posner also advised judges to consider whether a defendant's age could result in a de facto life sentence if the statute under which he was convicted only allows a jury to authorize a life sentence.

"This is not such a case," the ruling states. "The defendant's age and physical condition do not make his sentence a de facto life sentence. And if it did, it would just be one more consideration that the judge might be asked to weigh in determining the sentence, properly so if the prospect of dying in prison is thought to make a sentence of otherwise appropriate length harsher."

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