Deterrence has nothing to do with it.

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers removal (incapacitation) and deterrence. Keeping a danger off the streets, and giving others cause to think twice before committing the same crime.

As for removal/incapacitation, he sees little benefit to justify the extra 20 years. He acknowledges that sex offenders are more likely than most to reoffend, as their crimes are “compulsive rather than opportunistic.” (An excellent way of putting it.) But after the first 30 years have been served, this defendant will be in his 70s. Not exactly a demographic that commits sex offenses, no matter what their proclivities may have been in the days of their fecundity. For age gelds a man without hope of reprieve. Keeping a dangerous person off the streets isn’t a reason to keep him in until his 90s.

As for deterrence, he rightly points out the absurdity of thinking that a potential offender will change his mind knowing that he could get 50 years, but would have gone ahead and committed the crime knowing it would only get him 30. (To which we might add that hardly anybody knows what sentences the law prescribes, save for lawyers, judges and the occasional career criminal. It is the threat of some punishment, and not its form or extent, that deters people in real life.)

So far, so good. But that’s where Posner leaves it. And in so doing, he omitted any discussion of what’s really going on. If he wants to change things, he’s going to have to address the actual sources of such sentences.


There are other purposes of punishment: rehabilitation, retribution, and retaliation. Rehabilitation isn’t really at issue here, and nobody in possession of the facts can believe that imprisonment “cures” anything. And retaliation — the mere striking back at those who have struck us — is too emotional and visceral to address with any intellectual prose.

But retribution can be addressed with reason. And it is precisely what is going on in this sentence — indeed, in most sentences.

The judge gave Craig 50 years because that is what he thought these crimes were “worth.” Their equivalent harm. It’s the old “eye for an eye” way of thinking, and it’s what most judges and lawyers and even defendants are thinking about when considering an appropriate sentence.

If recidivism was the concern, the sentence could have been 15 or 20 years, long enough for the sexual urges to be weakened by time to the point where they’d be disregarded, if even still extant. If deterrence was the concern, there would be some effort to publicize the severity of the sentence to the general population, rather than the anonymous obscurity in which this and almost all other sentences exist. If rehabilitation was the concern, there would be some effort to defuse or overcome the underlying urges, which ain’t gonna happen.

The only concern is what this guy deserves. It has nothing to do with any cost-benefit analysis. Society’s burden is irrelevant. Society’s gain is irrelevant. The only factor is hurting this guy as much as he hurt society and his victim. Period.

But this is not an emotional concern. It is strictly rational, believe it or not. It requires some intellectual balancing of the respective harms. That’s a pretty deep philosophical conundrum in any case. Little wonder judges tend to think of sentencing as the hardest part of their job. (It’s also the one time where they are a player, rather than a referee.)

And Posner doesn’t like this sentence, not because it was economically irrational, but because he thinks it was too damn high. He wishes it had been more reasonable. He uses his economic analysis to show where a reasonable sentence might lie, but he wouldn’t be doing so if he thought it was what the crime was worth.

He’s one of a growing number of judges who believe that child porn sentencing is too harsh. If he wants to affect how judges make those decisions, however, he needs to address the real concern — not by providing cost-benefit analyses of deterrence and incapacitation, but by providing guidance to the thorny question of how much incarceration balances out a given harm.

It’s a task for rational minds, sure. But not for economics.

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