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Posner Ponders: Does the Punishment Fit the Criminal?

By Robyn Hagan Cain | Last updated on

David Michael Craig sounds like a terrible, horrible, no-good, very bad person.

Let's qualify that. Craig pleaded guilty to four counts of producing child pornography. He produced those images by photographing his repeated sexual assaults on a friend of his daughter's. He obtained additional images of her by threatening to kill her unless she photographed herself in sexually explicit poses and emailed him the images.

The abuses began when she was 11 years old and continued until she was 14.

An appropriate punishment for Craig would violate the Eighth Amendment, so the district judge in this case demonstrated relative restraint in sentencing Craig to 50 years. Craig got a 30-year maximum on one count and concurrent sentences of 20 years on each of the remaining three counts. The judge ordered that the 20-year sentences be served consecutively to the 30-year sentence.

As a result of this Guidelines-sanction sentence, Craig -- who was 46 when he was sentenced -- could be in prison until he's 96.

The Seventh Circuit Court of Appeals, in a per curiam opinion, agreed that the sentence was within the judge's authority. But Judge Richard Posner wrote separately to "remind the district judges of [the] circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences" and to suggest that "the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge's sentencing decision."

Judge Posner questions whether the length and cost of the sentence can be reconciled with the benefits of Craig's imprisonment to society; specifically, whether society benefits from Craig serving the 20-year sentences consecutively to, rather than concurrently with, the 30-year sentence.

If Craig served 30 years, he would be 76 when released. Statistically, septuagenarians are unlikely to commit sex offenses or crimes against children, so Posner suggests that incapacitation isn't that important for a 76-year-old. He also doubts whether the 20-year difference between the two sentences would serve as a deterrent.

What do you think? Does a de facto life sentence fit the crime? Should a 46-year-old get less prison time than 20-year-old? Let us know your take on Facebook or Google+.

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