Judge Posner’s Interesting Concurrence in U.S. v. Craig

Shortly before the Christmas holiday, Judge Richard Posner, the influential Reagan appointee on the Seventh Circuit Court of Appeals, made waves with an interesting concurrence in a case styled United States v. Craig. The case itself was relatively simple and decided per curiam. A 46-year-old offender was sentenced to a term that would keep him incarcerated until the age of 96. The sentence comported with the U.S. Sentencing Guidelines, and there was no basis for appeal. The three-judge panel swiftly dismissed the appeal and granted the lawyer’s Anders motion to withdraw as counsel. As the Wall Street Journal noted, the defendant is “a highly unsympathetic character.” (The facts of the case can be read here.)

Nevertheless, Justice Posner took the opportunity to write a concurring opinion urging judges to consider the cost of incarceration when imposing “superlong” rather than “merely very long” sentences on defendants:

“The social costs of imprisonment should in principle be compared  with the benefits of imprisonment  to the society, consisting mainly of deterrence and incapacitation. A sentencing judge  should therefore consider the incremental deterrent and incapacitative effects of  a very long sentence compared to a somewhat shorter one. An impressive body of economic research (summarized and extended in David S. Abrams,  “The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration,” forthcoming in  Iowa Law Review) finds for example that forgoing imprisonment as punishment of criminals whose crimes  inflict little harm may  save more in costs of imprisonment  than  the  cost  in increased crime that it creates. Ours is not a “little crime” case, and not even the defendant suggests that probation would be an  appropriate punishment. But it is  a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence.”

Posner also questioned the effectiveness of “superlong” sentences as deterrents:

“Sentencing judges should try to be  realistic  about the  incremental deterrent  effect  of extremely long sentences. Even unsophisticated persons  tend to discount future  costs  and benefits. Most people prefer to receive a dollar today than a dollar a year from now, even if that future dollar is certain, and likewise they prefer to pay a dollar a  year from now than today. If you face  a 50 year sentence rather than a 25 year sentence for some crime you’re thinking of committing, you consider it heavier punishment but probably not  twice as heavy; every year added to the prospective  sentence has a lesser deterrent  effect  than the preceding year of the sentence because it is added on at the end.”

Professor Eugene Volokh highlighted the case on his influential blog, and noting that while he was “inclined to think that there’s a very strong retributive case for life imprisonment for this particular defendant,” he “agree[s] with Judge Posner that there are real costs to such sentences, and they should indeed generally be saved for situations where there is a powerful imperative for maximum retribution.” The full opinion can be read here.

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