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May 1, 2008

Deep thoughts about cost-benefit analysis in federal sentencing

The Ninth Circuit issued an interesting little sentencing decision today in US v. Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008) (available here). Here is how the decision starts and a key passage:

In this opinion, we hold that the district court correctly concluded that the cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. §§ 3553(a) and 3582(a)....

Neither of the provisions relied on by Tapia-Romero require or allow sentencing courts to consider the cost to society of imprisoning a defendant.  And our review of the remaining provisions of § 3553(a) leads us to the same conclusion — § 3553(a) neither requires, nor allows, a court to consider the cost of imprisonment in determining the appropriate length of a defendant's term of imprisonment.

Though I think the Ninth Circuit panel is on solid ground when it asserts that the text of 3553(a) plainly does not require a district court to consider at sentencing the cost to society of imprisoning a defendant, I question whether it is accurate to read these provisions to prohibit the consideration of these costs.  Indeed, some provisions of 3553(a) arguable support some cost-benefit analysis at sentencing:

1.  The central mandate of 3553(a) calls for the court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."  This phrasing demanding the avoidance of unnecessary punishment suggests that some type of incarceration cost-benefit analysis is appropriate, if not encouraged, under 3553(a).

2.  A subsection of 3553(a)(2)(A) speaks of considering the need for sentences to "promote respect for the law" and section 3553(a)(7) speaks of considering the need for sentences to "the need to provide restitution to any victims of the offense."   Though I do not think these provisions demand consideration of incarceration costs, I can think of settings in which such costs might be validly relevant to a sentencing judge's effort to craft an effective sentence in a particular case.

Putting the Tapia-Romero in some broader context, I cannot help but speculate whether this ruling creates new question about considering family "costs" at sentencing through departures (or variances) for family circumstances.  As I detailed in this 2001 FSR article, titled "Addressing Why: Developing Principled Rationales for Family-Based Departures," the precise statutory basis for considering third-party harms or costs in light of the provisions of 3553(a) has never been perfectly clear.  If the Ninth Circuit now reads 3553(a) to prohibit the consideration of incarceration costs to the government at sentencing, can't parties now assert that it also prohibits the consideration of certain other third-party costs not directly related to the offense.

Finally, the decision in Tapia-Romero reminds me yet again how disappointing it is that the law and economics movement has never seriously turned its attention to mass incarcerations.  Whatever else one thinks about long prison terms, they rarely seem to be cost-effective (and often do not even appear to be cost-defensible).  Any yet I rarely see any hard-core efforts by hard-core lawyer-economists to do a hard-cost cost/benefit analysis of lengthy terms of incarceration.

May 1, 2008 at 02:34 PM | Permalink


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Federal Sentencing at the Ninth Circuit: Douglas Berman at Sentencing Law and Policy posted his thoughts on today's Ninth Circuit sentencing decision in Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008). Berman's commentary questions whether the Ninth ... [Read More]

Tracked on May 2, 2008 8:09:14 PM


I've seen some analysis from law and economics types on the inefficiency of incarceration for drug crimes.

This opinion is disappointing. And I don't buy the plain language argument; clearly when deciding whether to impose a fine the cost of incarceration is a factor the court needs to consider, but that doesn't mean that it cannot consider cost of incarceration in determining adequate deterrence and sufficient (but not greater than necessary) sentences.

Posted by: Alec | May 1, 2008 3:50:06 PM

Are we talking about the cost of merely keeping someone locked up, or are we talking about medical costs too? If a defendant will require $100,000 worth of pills a month to stay alive, and the taxpayers will have to foot the bill if in custody, surely that is a factor that should be considered.

However, the mere cost of keeping someone behind bars is constant from inmate to inmate and varies only by security level - it costs more to keep someone in a supermax than to keep them in a minimum security prison camp. But that means cost is proportional to severity of the crime (or dangerousness of the defendant). That being the case, that fact probably should not be considered by the sentencing body as it would benefit/credit more dangerous defendants... but it should be KNOWN by the sentencing body. In other words, if it will cost $40,000 per year to keep a defendant incarcerated, the judge should know that and the jury should be told that. As taxpayers, we should be able to make an informed decision about incarceration taking into account the cost thereof.

I would argue that implicit in the always-ignored parsimony provision is a finding and recognition that taxpayers should not have to pay for any more incarceration costs than are necessary. Both the taxpayer and the defendant should benefit from the parsimony provision. A sentence longer than necessary is both unfair to the defendant and unfair to the taxpayer.

Of course, most taxpayers are more than happy to give the government their hard-earned money to lock up other people.

Posted by: bruce | May 1, 2008 4:33:02 PM

I am a criminal justice student, I challenge the effectiveness both of cost and fairness, to young people serving life without chance of parole, because the law state as your brothers keeper you shall serve the same sentence. How do you justify keeping a person who has no criminal record. The conspiracy laws as well as the war on drugs, should keep this country paying well into the days of their grand-children for the same inmate. It is like adopting a child from a third-world country, the face changes but the problem never seems to go away.

Posted by: Gigi Warburton-Stephens | May 1, 2008 6:59:42 PM

Why, then, do the PSRs discuss the different costs of sentencing, be it incarceration, half way house, or supervision? Moreover, the statute does require the district court to consider the kinds of sentences available (18 USC 3553(a)). If cost isn't a factor in these two considerations, what is?

Posted by: Joy Bertrand | May 2, 2008 12:11:19 AM

Security classification uses objective criteria and subjective data and is based on the assumption that there is space with the appropriate security level to put the prisoner. The safe failure mode is to increase the security level and that is commonly done and the result is the maximum security beds often are all in use. Once the maximum security beds are saturated compromises have to be made. The inmates should be periodically reclassified but if they are doing well where they are that step is likely to be skipped.

Elderly lifers do not need to be held in a maximum security cell block but if they have been there a long time that is where all of their friends are and they don't want to move. Eventually they will be moved if they require 24 X 7 nursing care and providing that inside a prison is very expensive.

Minimum security is frequently used for probation violators (who should not be in prison) and I think the taxpayers would be better off if they were supervised more rigorously by community based correction (CBC). I suspect that in a typical Department. of Corrections the prisons have more clout than CBC and educational and reentry programs and as a consequence prisons have the highest funding priority.

Posted by: John Neff | May 2, 2008 10:05:03 AM

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