United States v. David Craig , 703 F.3d 1001 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1262
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID M ICHAEL C RAIG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:11-cr-40066—JPG-1—J. Phil Gilbert, Judge.
S UBMITTED N OVEMBER 7, 2012—D ECIDED D ECEMBER 18, 2012
Before P OSNER, FLAUM, and K ANNE, Circuit Judges.
P ER C URIAM. The defendant pleaded guilty to four
counts of producing child pornography. 18 U.S.C.
§ 2251(a). He produced them by photographing his re-
peated sexual assaults on a girl who was a friend of his
daughters and sometimes slept over at his house.
He obtained additional pornographic images of her by
threatening to kill her unless she photographed herself
in sexually explicit poses and emailed him the images.
2 No. 12-1262
The abuses began when she was 11 years old and contin-
ued until she was 14.
Because his total offense level was 43, his guidelines
sentence for each count was life. U.S.S.G. ch. 5, pt. A
(Sentencing Table). But the judge could not impose that
sentence because the statutory maximum sentence for
each count of conviction was 30 years. 18 U.S.C. § 2251(e).
(It would have been longer had the defendant had
previous convictions, but he didn’t.) The judge sen-
tenced him to the 30-year maximum on one count and to
concurrent sentences of 20 years on each of the
remaining three counts, but he ordered that the set of 20-
year sentences be served consecutively to the 30-year
sentence, making the total sentence 50 years. The judge
was entitled to do this. E.g., United States v. Russell, 662
F.3d 831, 852-53 (7th Cir. 2011); United States v. Thompson,
523 F.3d 806, 814 (7th Cir. 2008); United States v. Sarras, 575
F.3d 1191, 1220-21 (11th Cir. 2009); United States v. Betcher,
534 F.3d 820, 827-28 (8th Cir. 2008). Indeed, the guidelines
tell the judge to sentence consecutively when necessary
to bring the total sentence into the guidelines range,
even though the sentence would exceed the statutory
maximum sentence for any count of which the defendant
was convicted, U.S.S.G. § 5G1.2(d), though as the guide-
lines are no longer mandatory the judge doesn’t have
to sentence consecutively in that circumstance.
But the judge did sentence consecutively in this case
as recommended by the guidelines and as a result the
defendant, 46 years old when he was sentenced, will
serve 50 years in prison should he live to the age of 96.
No. 12-1262 3
His lawyer has scoured the record without success for
some ground for attacking the sentence, a guidelines
sentence and therefore presumed on appeal to be rea-
sonable. Compelling mitigating factors ignored by
the judge have not been shown. The lawyer has filed
an Anders motion to withdraw as counsel on the ground
that the appeal is frivolous; we grant the motion and
dismiss the appeal.
P OSNER, Circuit Judge, concurring. I write separately
merely to remind the district judges of this circuit of the
importance of careful consideration of the wisdom of
imposing de facto life sentences. If the defendant in
this case does not die in the next 50 years he will be
96 years old when released (though “only” 89 or 90 if he
receives the maximum good-time credits that he would
earn if his behavior in prison proves to be exemplary). See
18 U.S.C. § 3624(b); Barber v. Thomas, 130 S. Ct. 2499(2010); U.S. Dept. of Justice, “Legal Resource Guide to
the Federal Bureau of Prisons” 13-14 (2008), www.
bop.gov/news/PDFs/legal_guide.pdf; Rob Ruth, “Cal-
culating Federal Good Time Credit: How the BOP Turns
54 Days Into 47,” CJA News Blog (Dec. 29, 2010),
http://madisonattorney.com /cjablog/?p=95; Families
Against Mandatory Minimums, “Frequently Asked
4 No. 12-1262
Questions about Federal Good Tim e Credit,”
www.famm.org/Repository/Files/FINAL_Good_Time_
FAQs_10.21.08%5B1%5D.pdf. (All websites cited in
this opinion were visited on Dec. 3, 2012.) Maybe 50 years
from now 96 will be middle-aged rather than elderly,
but on the basis of existing medical knowledge we
must assume that in all likelihood the defendant will
be dead before his prison term expires.
Federal imprisonment is expensive to the govern-
ment; the average expense of maintaining a federal pris-
oner for a year is between $25,000 and $30,000, Notice,
Bureau of Prisons, 76 Fed. Reg. 57081 (Sept. 15, 2011),
w w w .g p o .g o v / f d s y s / p k g / F R - 2 0 1 1 - 0 9 -1 5 / p d f / 2 0 1 1 -
23618.pdf, and the expense rises steeply with the prisoner's
age because the medical component of a prisoner’s expense
will rise with his age, especially if he is still alive in his 70s
(not to mention his 80s or 90s). It has been estimated that
an elderly prisoner costs the prison system between
$60,000 and $70,000 a year. Kelly Porcella, Note, “The Past
Coming Back to Haunt Them: The Prosecution and Sen-
tencing of Once Deadly But Now Elderly Criminals,” 81 St.
John’s L. Rev. 369, 383 (2007).
That is not a net social cost, because if free these
elderly prisoners would in all likelihood receive
Medicare and maybe Medicaid benefits to cover their
medical expenses. But if freed before they became
elderly, and employed, they would have contributed to
the Medicare and Medicaid programs through payroll
taxes—which is a reminder of an additional social cost
of imprisonment: the loss of whatever income the
No. 12-1262 5
prisoner might lawfully have earned had he been free,
income reflecting his contribution to society through
lawful employment.
The social costs of imprisonment should in principle
be compared with the benefits of imprisonment to the
society, consisting mainly of deterrence and incapacita-
tion. 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 ap-
propriate punishment. But it is a lifetime imprisonment
case, and the implications for cost, incapacitation, and
deterrence create grounds for questioning that length
of sentence.
For suppose the defendant had been sentenced not to 50
years in prison but to 30 years. He would then be 76 years
old when released (slightly younger if he had earned the
maximum good-time credits). How likely would he be to
commit further crimes at that age? As we noted in United
States v. Johnson, 685 F.3d 660, 661 (7th Cir. 2012), although
persons 65 and older are 13 percent of the population, they
accounted for only seven-tenths of one percent of arrests in
6 No. 12-1262
2010. Last year 1,451 men ages 65 and older were arrested
for sex offenses (excluding forcible rape and prostitution),
which was less than 3 percent of the total number arrests
of male sex offenders that year. FBI, Uniform Crime Reports:
Crime in the United States 2011, www.fbi.gov/about-
u s / c jis /u c r /c r im e -in - th e -u .s /2 0 1 1/ cr im e -in - th e -u . s . -
2011/tables/table-39. Only 1.1 percent of perpetrators of
all forms of crimes against children are between 70 and
75 years old and 1.3 percent between 60 and 69. U.S.
Dep’t of Health & Human Services, Children’s Bureau,
“Child Maltreatment 2010” 76 (2010),
http://archive.acf.hhs.gov/programs/cb/pubs/
cm10/cm10.pdf. How many can there be who are older
than 75?
It is true that sex offenders are more likely to recidivate
than other criminals, Virginia M. Kendall and T. Markus
Funk, Child Exploitation and Trafficking: Examining the
Global Challenges and U.S. Responses 310 (2012), because
their criminal behavior is for the most part compulsive
rather than opportunistic. But capacity and desire to
engage in sexual activity diminish in old age. Moreover,
when released, a sexual criminal is subject to registra-
tion and notification requirements that reduce access
to potential victims. Id. at 320.
As for the benefits of a lifetime sentence in deterring
other sex criminals, how likely is it that if told that
if apprehended and convicted he would be sentenced to
50 years in prison the defendant would not have com-
mitted the crimes for which he’s been convicted, but if
told he faced a sentence of “only” 30 years he would
No. 12-1262 7
have gone ahead and committed them? That he would
have deemed the expected punishment cost (roughly, the
cost of being imprisoned for 30 years times the probability
of being apprehended and convicted) less than the benefit
he would derive, in satisfaction of his sadistic sexual urges,
from committing these crimes? (There is no indication that
he has a propensity to commit other crimes.) Probably he
had no idea what his punishment was likely to be if he was
caught, for the Justice Department does little to publicize
punishment levels for the various federal crimes.
Sentencing judges should try to be realistic about
the incremental deterrent effect of extremely long sen-
tences. 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.
Sentencing judges are not required to engage in cost-
benefit analyses of optimal sentencing severity with
discounting to present value. Such analyses would
involve enormous guesswork because of the difficulty
of assessing key variables, including one variable that
I haven’t even mentioned, because I can’t imagine how it
could be quantified in even the roughest way—the retribu-
8 No. 12-1262
tive value of criminal punishment. By that I mean the
effect of punishment in assuaging the indignation that
serious crime arouses and in providing a form of nonfinan-
cial compensation to the victims.
But virtually all sentencing, within the usually broad
statutory ranges—the minimum sentence that the judge
could have imposed in this case, by making the sentences
on all four counts run concurrently, as he could have
done, would have been 15 years, 18 U.S.C. § 2251(e), and
the maximum sentence, by making them all run consecu-
tively, as he could also have done, would have been
120 years—involves guesswork. I am merely suggesting
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.
12-18-12