But does anyone stop to think about the social costs of keeping elderly prisoners behind bars?
US District Judge Richard Posner has thought about. And the notion troubled him enough that it was the subject of a concurring opinion in U.S. v. Craig, No. 12-1262 (7th Cir. 2012).
Mr. Craig plead guilty to four counts of producing child pornography. He photographed his sexual assaults of a preteen girl and then threatened to kill her if she didn't provide him more pictures of herself. Based on the sentencing guidelines (and I thought those were but advisory these days), he could have been sentenced to life on each count. But, because he had no prior convictions, the most he could be sentenced to was 30 years per count. The trial court decided to sentence him to 30 years on one count and concurrent sentences of 20 years each on the other three counts. He then stacked the sentences and Mr. Craig headed off to prison for 50 years.
At the time of his sentencing Mr. Craig was 46 years old. Judge Posner pointed out that if he served out his sentence, Mr. Craig would be a guest of the state until he was 96 years old. As you may or may not be aware of, elderly folks tend to have more serious medical conditions than younger people. These conditions require more treatment, more medication and more expense in general. And if Mr. Craig remains in prison, someone has to foot the bill for his medical care.
Judge Posner suggested that it would be more economical for Mr. Craig to be released at some point so that he could seek employment and make contributions to the Medicare system. Should that happen, he would be paying for at least a portion of the care he receives - like anyone else covered by Medicare. But, if we're going to continue to lock people up beyond the point that they are a threat to anyone, then we are all going to pay the cost of those draconian sentences.
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.
Yes, there are some people out there that should be locked up until they breathe their final breath, but those folks are few and far between. We are living longer now than ever before and there is no reason not to expect that trend to continue into the future. So long as the cost of health care continues to increase for elderly people, we are going to find new funding mechanisms for Medicare (as well as revamping Social Security when we reach the point that there aren't enough workers paying FICA taxes to support those receiving Social Security benefits).
With our longer lifespans we see more incidences of cancer as well as heart disease. These are costly conditions to treat and if we insist on locking people up until they are carted out in a pine box then we are the ones who are going to have to pay for it.
I doubt most judges give the matter a second thought for they will be long off the bench before the bill comes and, besides, no one will remember who put that inmate behind bars until his dying days. At least Judge Posner has given us something to think about.
Not to mention that they're aren't too many 70, 80 and 90 year olds out there committing crimes anyway.