Posner on Punishment

In back-to-back dissents last week, Richard Posner, 7th Circuit judge and America’s most-cited legal scholar, questioned the legality and wisdom of the sentences imposed on two defendants, Norvell Moore and McKinley Kelly. In Kelly v. Brown (2017 WL 1026121), the 7th Circuit declined to review the 110-year sentence Kelly is serving for two murders he committed when he was 16 years old. Under Miller v. Alabama, 132 S. Ct. 2455 (2012), mandatory life without parole for a juvenile convicted of murder is unconstitutional. Before sentencing a juvenile to life without parole for murder, a judge must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Kelly’s life-equivalent sentence complied with Miller, the court said, because the sentencing judge considered his age as a mitigating factor.

Posner would have allowed Kelly to pursue his Miller claim in the district court because the sentencing judge made only a single statement about Kelly’s age. “So cursory a statement does not evidence the deliberate reflection on Kelly’s character that would be necessary to conclude that he is ‘irretrievably depraved’ and his ‘rehabilitation is impossible.’ ” Posner cited statistics to show that Kelly, who won’t be eligible for parole until he is 70, will have effectively served a life sentence before then—the average life expectancy for juveniles sentenced to life is 50.5 years. He also cited a 2015 DOJ study demonstrating “that more than 90 percent of juvenile offenders grow out of such antisocial behavior by young adulthood and do not re‐offend after their first contact with a court—and that regardless of the sanction imposed on the child.”

Posner’s dissent in Kelly may not be noteworthy except for its publication the day after United States v. Moore (2017 WL 1018345). To frame Posner’s dissent in Moore, it’s not necessary to set the full procedural scene, which is complicated. So to make this as brief as I can: For stealing a BMW after showing the driver he was armed, Moore was charged in federal court with carjacking, using or carrying a firearm during and in relation to a crime of violence, and possession of a firearm following a felony conviction (Moore had three prior felony convictions for robbery). A jury found Moore guilty of the felon-in-possession and using-or-carrying charges, and a judge sentenced Moore to 240 months’ imprisonment (consecutive 120-month terms on each of the counts). Moore successfully appealed and at a second trial was acquitted of everything but the felon-in-possession count. A different judge sentenced Moore to 240 months—twice the 120-month term the judge has imposed for that conviction following the first trial. The 7th Circuit affirmed the sentence.

In dissent Posner argued that the retrial judge could sentence Moore to 120 months and no more. Here are a few takeaways from Judge Posner’s opinion, which urges judges to rethink the big picture of sentencing:

  • Posner suggests that a “problem with the government’s reliance on the robberies to push up the defendant’s sentence was that he’d been punished for those robberies—on what principle was he to be repunished for them?” This is an odd suggestion. It’s well-established and almost axiomatic that a defendant’s criminal history is appropriate for a judge to consider during sentencing. From habitual offender statutes to the Federal Sentencing Guidelines, which calculates an offender’s recommended sentence by reference to two axes, one of which quantifies an offender’s criminal history, the law makes an offender’s record a leading consideration at sentencing. It’s not that an offender is being repunished for past crimes—something that would violate the double jeopardy clause—but that he can be punished more severely for the present offense because he has shown that a more lenient sentence won’t adequately deter him from future crime and his past history demonstrates a high risk of reoffending, meaning he’s a danger to the community. First-time offenders aren’t treated the same as repeat offenders—and shouldn’t be.
  • Posner incongruously follows the above point by writing that a “defendant’s criminal history can of course be a relevant consideration at sentencing,” but casts doubt on whether it was important here. Again, odd. It’s reasonable to question whether a drug conviction has much bearing upon an offender’s sentencing for, say, assault or tax evasion, but Moore was previously convicted of three robberies and his present charges arose of out an alleged carjacking.

[O]ne of [Pfaff’s] concerns is the high discount rates of typical violent offenders, though he doesn’t use the phrase “high discount rates” but instead says that “those contemplating crime often don’t know how long sentences are, or even that sentences have gotten longer. More important, those who are most likely to engage in violence and antisocial behavior tend to be very present-minded. They don’t think a lot about tomorrow. What really deters them, if anything does, is the risk of getting caught in the first place: policing and arrests, not prison sentences.”

 Many violent offenders, moreover, age out of crime, often as early as their mid- to late-twenties—“by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started ‘aging out’ of crime, violent behavior in particular. … A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.” Among other alternatives to prison for dealing with violent criminals, Pfaff mentions “hot-spot policing,” which “identifies … high-crime blocks and significantly increases patrols and community involvement there [and] has produced significant results.”

 I read Pfaff’s Wall Street Journal article when it was published (somehow, because when I attempted to reread it now I can’t get around the WSJ paywall) and appreciated his recasting of the “mass incarceration” debate. While there is broad support for reducing prison terms and promoting alternatives to incarceration for drug offenders, society hasn’t had this discussion: Should we do the same for violent offenders? By inserting his influential name into the mix, Posner may jump-start that discussion among judges and attorneys.


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