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June 13, 2015

Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"

The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....

The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.

June 13, 2015 at 02:45 PM | Permalink


Judge Posner performed a very good service in highlighting the issues about elderly prisoners as a result of extremely long sentences, even if they are within the guidelines. I think many would benefit from some recognition of the costs associated with long-term incarceration when there is substantially less chance that the defendant will be violent or dangerous if released. The medical expenses borne by the prison system for these elderly patients are another concern.

Posted by: Elaine Mittleman | Jun 13, 2015 4:39:47 PM

An easy fix •


Ship them to Cape York Peninsula, Australia and hire the locals to chaperone the bad guys •

Posted by: Docile Jim Brady in Oregon | Jun 13, 2015 9:04:18 PM

people who deal in large quantities of heroin lead to the deaths of many and the misery of even more.

The sentence is just.

Posted by: federalist | Jun 13, 2015 9:04:18 PM

How old is Judge Posner?

Posted by: Liberty1st | Jun 14, 2015 1:13:23 PM


You are a simpleton, if not a moron. Judge Posner is a brilliant jurist, with a lot of apt things to say about diminishing returns to very long sentences and other principles highly relevant to rational sentence. Your response is essentially "heroin dealers are bad so they deserve what they get." You do not join issue or have anything interesting to say in response to one of the most legal legal thinkers of his generation, rather you offer dated nostrums. Why bother?

Posted by: Mark | Jun 14, 2015 11:44:58 PM

The reason for the high cost of imprisonment is because prisons and jails have an obligation to provide a level of care to prisoners. Of course many prison health care systems are under strain and offer lousy care such as in California which has been subject to litigation and remains a problem despite thousands per prisoner spent.

However, in the elderly such problems become more evident and one can't assume the obvious what you can't see in a healthier but lurking disease in a younger person. It would be easy to just let folks die rather than give them care, but then that makes the prison a DP prison. Of course conservatives have no issue with medicaid recipients being denied transplants under jan brewer, but then talk about abortion and against the right to die by the terminally ill. Conservatives of course then talk about false death panels, but the conservative philosophy must allow granny to die if he or she can't afford their health care and they make a bad financial or investment decision.

If that isn't realistic then, it must be rethought of.

Posted by: Alex | Jun 15, 2015 4:07:18 AM

I'm not sure what RP thinks will happen here. He's affirmed the judgment, but says the district court may want to reexamine the prison term and supervised release conditions. The procedure for the latter is clear. But how would the district court have jurisdiction to revise the prison term after an affirmed judgement?

Posted by: tom | Jun 15, 2015 1:16:08 PM

tom, I agree with you. Posner slipped up here. As far as I know, absent a reversal or vacation of he sentence, the district court has no jurisdiction to act now. the defense lawyer should ask the court of appeals to reconsider its opinion (problem is that the court would probably do so and delete all the dictum!).

Posted by: Michael R. Levine | Jun 15, 2015 7:50:26 PM

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