Age and Sentencing -- On the Rara Avis (7/11/12)

One of the issues presented in sentencing of older defendants is whether a sentence stated in years can effectively be a life sentence.  Judge Posner of the Seventh Circuit authored an interesting discussion of this issue in United States v. Johnson, 685 F.3d 660 (7th Cir. 2012), here,

The defendant was 70 years old at sentencing for counts of convictions for controlled substances and possession of an unregistered firearm.  On appeal, the defendant's lawyer filed an Anders brief, "seeking leave to withdraw on the ground that he can't find a colorable ground for an appeal."  Judge Posner found one issue that he wanted to discuss:

The only possible such ground is the judge's decision not to give a below-guidelines sentence despite the defendant's age, a question discussed at length at the sentencing hearing, where his lawyer argued that the defendant should get a shorter sentence than 78 months (six and a half years) because he is (or rather was, at sentencing) 70 years old (he is now 71) and so might die before he was released from prison. The judge consulted the Census Bureau's life-expectancy table and found that the life expectancy of a black male aged 70 is 12.4 years. So even without any time off for good behavior, which would reduce his time served by a maximum of 10 months and thus to 5 years and 8 months, the defendant's sentence does not exceed his life expectancy.

Under the facts, therefore, there was no indication that the sentencing nominated in years would in fact be a life sentence.  But, the facts did suggest to Judge Posner "two questions: the bearing of old age on sentencing, and the bearing of life expectancy on sentencing."
From this springboard, Judge Posner  noted the demographics (most citations omitted):

The propensity to engage in criminal activity declines with age, and is, on average, sharply lower for persons over 70 — although persons 65 and older are 13 percent of the population, they account for only seven tenths of one percent of arrests.  There is both an aging effect and a selection effect: the cost of acquiring criminal skills increases with age, and career criminals, who already possess such skills, are likely to retire from crime before reaching old age because repeated crimes bring increasingly heavy sentences. Id. at 132-33. Persons convicted of a crime committed when they are 70 or older are thus unlikely to commit further crimes even if released after a short term of imprisonment.  

And so the Sentencing Guidelines state that "age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration." U.S.S.G. § 5H1.1 (Age Policy Statement). But this general rule must have exceptions. 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. This may well be the case of our defendant, as the district judge explained in a thoughtful sentencing statement.

Judge Posner then notes characteristics of this defendant's lifestyle that indicates he is such a rara avis who might well commit further crimes despite his age and posits the following hypothetical:

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. 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—especially if the probability of apprehension of and conviction for the crimes  [*6] in which he habitually engages is low. For the expected cost of punishment is a function of the likelihood of being punished as well as of the severity of the punishment if imposed.

From which he concludes:

This discussion should make clear that the sentence imposed by the district judge was reasonable and that the defendant's current lawyer was quite right to disclaim the existence of a colorable ground for challenging the appeal.

Wanting to say more on the subject, Judge Posner proceeds to talk about life expectancy and its effect on sentencing (some citations omitted):

Life-expectancy tables lump together large numbers of people who have only a few things in common, such as, in this case, age, race, and sex. The set of black men aged 70 to 74, estimated by the Census Bureau to have included 345,000 men in 2010 actually contains a range of life expectancies. Some of these men will die within the year; some will live to 100 or even a few years beyond that; the rest will die in between the extremes. All it means to say that the defendant when he was 70 had a life expectancy of 12.4 years is that the average person in the heterogeneous group to which he belongs (black 70-year-old men) can be expected to live 12.4 more years, implying that approximately half will die sooner and the other half later. (It would be exactly half if 12.4 were the median rather than average age of death of members of the group.) It doesn't mean that the defendant will not die in prison; he very well may; the probability that he will die before he is released can be calculated, either from statistics concerning the experience of his group, or, with greater accuracy, from more refined statistics that would narrow the group to black 70-year-olds whose physical condition is similar to the defendant's. But even the most refined statistical calculation of his life expectancy will leave considerable residual uncertainty. 

We have wrestled in previous cases with the question whether life expectancy statistics should figure in sentencing for offenses for which Congress has not authorized a life sentence. Our court has concluded, as have other courts, that a sentence which although it is a term of years is likely or even certain to be a de facto life sentence because of the defendant's age is improper if the statute under which he was convicted provides that only a jury can authorize a life sentence (18 U.S.C. § 34, applicable to certain drug offenses). This is not such a case. 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.

I have left out many of the citations that Judge Posner included in his text.  By rumor, reputation and some statistical data, Judge Posner does not include footnotes in his opinions.  When he needs citations, therefore, they are in the text and sometimes (at least for me) interrupts the reading of the text.  Where I think that happens here (as in the case of string citations and web references), I often omit the citations when I quote Judge Posner.  Readers wanting the citations can go to the opinion linked above.

Finally, I note that, in the offshore account sentencings that have captured the attention of this blog over the past few years, the sentences have been relatively light -- certainly lighter in almost every case that the "advisory" Sentencing Guidelines range.  However, some of them might have presented this issue had there been significant sentences otherwise indicated.  For example, according to my data, the oldest defendant at sentencing in these cases was 84.  Also, it is hard to imagine that persons sentenced for tax crimes (short of the Al Capone types) would commit similar crimes after they are released (if they are released).

Addendum 7/12/12:  Judge Posner made a splash recently with an interview on NPR  Nina Tottenberg, Federal Judge Richard Posner: The GOP Has Made Me Less Conservative (NPR 7/5/12), here.  A key quote:  "I've become less conservative since the Republican Party started becoming goofy."

Also, discussing the leaks, apparently from the conservative side of the Supreme Court, designed to discredit Chief Justice Roberts over his action in the health care case, Judge Posner said (as quoted in the NPR article]:

"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."

The audio of this except is on the NPR article cited above.

As I hope most readers of this blog will already know, Judge Posner is no left wing crazy looking for cheap shots at the GOP.  He is one of them.  He is also among the best, the brightest and the most thoughtful the GOP has.  See Wikipedia entry here.  (But, of course, these attributes may not be in the ascendancy in the GOP, except when wrapped in overt partisanship (pick the Supreme Court judge who fits that bill).)

By the way, I always include Judge Posner decisions in my courses on tax procedure and tax crimes because he, generally at least (certainly in the cases I choose), is able to state legal concepts in a straight-forward, reasoned way.  I like him for reasons having nothing to do with his politics and everything to do with his judging.  But, as illustrated in the discussion of the Johnson case, he sometimes goes beyond the minimum necessary to decide the case.