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September 16, 2010

"Should a Judge Consider the Cost of a Sentence?"

The title of this post is the headline of this effective new piece at ABC News discussing Missouri's fascinating new sentencing tool providing "case-by-case invoices" of punishment costs to judges at the time they make sentencing decisions (details here).  Here are excerpts from the ABC News piece:

When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.

The information is part of an offense summary culled from statistics kept by the state's Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend....

The program was unveiled last month by the Missouri Sentencing Advisory Commission (MOSAC) as a tool to help judges determine the best chances for reducing recidivism with cost-effective punishments.

A judge or lawyer is able to enter specific information on the MOSAC website, such as an offender's prior criminal history, the crime committed, his education and employment status. The computer then uses statistics from other actual sentences to process the information.

For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.

However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent. Missouri Supreme Court Judge Michael Wolff, chairman of the state's sentencing commission, said the new tool considers cost, but focuses on recidivism....

Judge Wolff asked, "Why not ask the question of how much this is going to cost?" But there are critics of the program.

Jennifer Joyce, the prosecuting attorney in the city of St. Louis, said, "It's ultimately cheaper to prosecute no one."  She isn't opposed to the information being available for judges and taxpayers, or to the concept of alternative sentencing, but she is concerned that sentencing decisions will be made on an economic basis.

 "Strictly speaking, economics is irrelevant to the decision that the judge makes, which is about public safety," she said. "If we are going to use economics as a basis to making these decisions, then we have to consider the economics of the victim and the community."

Judge Gary Oxenhandler, who sits on the 13th Judicial Circuit and has used the new tool, disagreed with her conclusion. He said cost is only one of many factors a judge should consider, including the threats to the community and the impact on the victim. "I want as much information as I can get," he said.

"Any place a judge can obtain information, that is an important source.  The prosecution has its goals, the defense has its goals.  Our job is to come up with the right amalgam that is going to best serve all these interests between protection of the public and punishment for the offender."

Helpfully, everyone can see an example of the data reports on recidivism and costs on the last two pages of the latest Smart Sentencing bulletin from the Missouri Sentencing Advisory Commission. I encourage everyone to check out the specifics of what Missouri is doing for its sentencing judges and to think about whether and how sentencing judges (and litigants) in all systems ought be get the benefits of all this helpful data.

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September 16, 2010 at 10:44 AM | Permalink


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Excellent idea...Lets see if I give you 10 yrs it will cost $260,000, if I give 6 yrs drops to $156,000, thats is being responsible....If you can't get it done in 6 VS 10, you never will...The government thinks they can predict recidivism...

They convict some who are innocent. ...

OK, Judges need it as info to balance cost and public safety...Instead of what the Feds do...Look it up in a table, lets see level 23 and cat 4, your sentence is xyz months...So many Federal judges are still mechanical and dish out guideline sentences, with little regard for cost.

Posted by: Abe | Sep 16, 2010 3:07:03 PM

Again I would like to point out that no one can say with reasonable certainty what an offender's risk of recidivism will be in three years, let alone ten or twenty; risk changes. All decision-makers should be required to take a basic course in statistics. The system should be structured so that risk is reevaluated periodically. On the other hand, accountability does not change; therefore it should be fixed at the outset.

As for assuring that judges understand the cost of their decisions, I proposed something like this in a comment on this blog some time ago. I still think it is a good idea. Surely sentences are unreasonable if they are not cost-effective.

Posted by: Tom McGee | Sep 16, 2010 4:22:26 PM

Well said Tom.

Posted by: Abe | Sep 16, 2010 4:58:03 PM

Tom: Since you seem to accept that accountability can (and should) be fixed at the outset, what is the value for accountability of a crime, e.g. rape, murder, Ponzi scheme where the victims lost their life savings? Does is it make a difference that some victims of such crimes are from different walks of life such as victims who are lifelong criminals themselves or who can easily afford what was stolen from them. Is the accountability the same, different? How do you determine the cost-effectiveness of accountability which is separated from risk of recidivism?

Posted by: David Boyd | Sep 16, 2010 9:02:20 PM

This is totally fascinating. Any one want to hazard a guess about how it impact sentences?

Posted by: dm | Sep 16, 2010 9:12:31 PM

This is repetitive left wing, lying propaganda. So repetitive rebuttal with some interruption from reality is warranted.

1) Over 95% of charges are resolved with a plea bargain. The crime in the plea may be completely fictional, or remotely related to what actually happened. So a guy rapes and stabs a girl 10 times. She is too terrorized to testify. The offer is for criminal trespass. So only the original charge has any validity. The defense bar will scream, not adjudicated, and unjust, unfounded, not proven, so on. I understand the Procedural Due Process rights problems. However, we care about past victims and future victims.

2) By the time we are talking about expensive incarceration, the defendant has failed to respond to all other measures, and from age 3. So the track record is established. That is a reliable predictor of future busy crime. There is no choice left, so the cost is merely a nuisance harassment of the judge by the pro-criminal left.

3) If the defendant is typical, the charged crime represents the tiniest fraction of the total crimes committed. If the criminal is committing a major felony a week, the charged crime may be only one of non-prosecuted 100 crimes, with the crime meter still whirring as the judge is speaking. If one priced each crime as an intentional tort, and cost it at only $10,000, the direct cost of the criminal is $500,000. Any punishment cost below that, especially invested in incapacitation must be balanced against this direct cost. The judge should try to get the list of all the crimes, all immune from prosecution if voluntarily reported by the defendant. The indirect cost include the impact on the victims' families, real estate values, the cost of greater mistrust, the lost opportunities from distraction by fear in school, work, and other settings.

Posted by: Supremacy Claus | Sep 16, 2010 11:12:19 PM

Tough question. We hold offenders accountable for their criminal offenses in order to affirm and reaffirm social norms that play a role in sustaining social order. Without these norms, social order slips away. How valuable are they to a society? I believe the answer is a question of public policy. That is one of the reasons why guidelines are essential. The need for accountability reaches further than the victim. It touches all of us.

The question about risk is easier. How much risk is acceptable? This is also a policy question. Its like buying insurance.

Posted by: Tom McGee | Sep 16, 2010 11:20:23 PM

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