There needs to be considered the cost of imprisonment to the government, which is not trivial. The U.S. prison population is enormous by world standards -- about 1 percent of the nation's entire
population -- and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs. If the deterrent or in capacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste.
The Bureau of Prisons reports that 17.5 percent of the federal prisons population is over the age if 50, 2.7% between 61 and 65, and 2.2% older than 65. [Federal Bureau of Prisons, Inmate Statistics: Inmate
Age]. "Aging prisoners," is defined as prisoners 50 years or older, cost the federal prison system 8 percent more than younger prisoners, and these excess costs, mainly medical, rise with age. [Office of the
Inspector General, U.S. Dept. of Justice, "The Impact of an Aging Population on the Federal Bureau of Prisons," May 2015]. The Inspector General's study also finds that only 8 percent of inmates aged 60 to
64 who were released between 2006 and 2010 were rearrested for new crimes within three years, compared to 19 percent who were 50 to 54 years old. Neither the Justice Department, the petitioner's lawyer, nor the probation department evinced
awareness in this case of the problem of the elderly prison inmate. Some judges, however, have drawn attention to the problem in their opinions. [See e.g., United States v Johnson, 685 F.3d 660, 661-62 (7th Cir. 2012); United States v Buillon, 466 F.3d 574, 577 (7th Cir. 2006); United States v Howard, 773 F.3d 519, 532-33 (4th Cir. 2014); United States v Payton, 754 F.3d 375, 378-79 (6th Cir. 2014); United States v
Craig, 703 F.3d 1001, 1002-04 (7th Cir. 2012)(Concurring opinion). Especially in the light of the COVID- 19 pandemic it is time that we all became more aware of it, and the effects it has on the public as a
whole.
There is much that federal sentencing judges are required to consider on a sentence to impose -- maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory
provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendant, and other at sentencing hearings. But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge's primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from
committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released; general deterrence (the effect of the sentence in deterring other persons from
committing crimes); and specific deterrence (it's effect in deterring the defendant from committing
crimes after he's released).
A sentence long enough to keep the petitioner in prison until he enters the age range at which the type of criminal activity for which the defendant is being sentenced have a high discount rate; far beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers. There will be cases in which the heinousness of the defendant's crime or other factors argue compellingly for a sentence longer in order to achieve the goals served by incapacitation and general and specific deterrence, but in the run of the mine cases consideration of those goals is likely to argue for a relatively lenient sentence.
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