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September 8, 2011

"Cost as a Sentencing Factor: A Theoretical Inquiry"

The title of this post is the title of this great-sounding new paper from Professor Chad Flanders available via SSRN.  Here is the abstract:

In sentencing offenders, should judges take into account the different costs of possible punishments?  In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year).  Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.

This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing.  Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences.  Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.

September 8, 2011 at 05:52 PM | Permalink


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$17,000. $7000.

How about $7?

For a fifteen minute caning. The guilty person would never forget it. Others similarly situated would put that experience into their cost-benefit analyis before committing other crimes.

Is caning cruel, compared to prison, or even probation?

Find out by asking the defendant his preference. Judges have never experienced any of those, and are unqualified to answer that question.

Posted by: Supremacy Claus | Sep 9, 2011 3:47:34 PM

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