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January 23, 2013

Talk in Vermont of requiring judges to consider directly costs of sentence

This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State.  Here are highlights:

As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time.  Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions.  But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.

“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”

Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.

Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing.  “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.

He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are.  But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.

“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”

Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said.  “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...

Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing.  In every case, Valerio said, they have “roundly been … shot down.”

Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation.  “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.

January 23, 2013 at 09:16 AM | Permalink


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The judiciary is not particularly well situated to make this type of cost/benefit analysis. Indeed, among the three branches, the judiciary is uniquely ill-situated for this task. The task is best performed by the legislature and executive because they have the specific fact-finding expertise and staff at their disposal to study the matter.

If the Vermont legislature believes that incarceration rates or costs are too high, that legislature has it at their option to reduce the number of crimes, reduce the current felonies to misdemeanors and to reduce the punishment for relevant offenses, among other options. If the executive believes that incarceration rates or costs are too high, the executive has it at her option to pardon or give clemency as they see fit without review, as far as I know, of the other two branches. The Vermont legislature is trying, and failing, to deal with the disconnect between the public's desire for more and more crimes and longer and longer sentences with the public's equal desire for less government spending by passing the buck. The public can have one or the other but not both, and the place to decide is not in courtrooms; the appropriate place is in the applicable legislative committees and the legislature on the whole.

Posted by: C60 | Jan 23, 2013 10:19:21 AM

If you are satisfied with intuitive decision-making, then cost is not an issue. Go with your gut. But if you demand reasoned decision-making, then a cost-benefit analysis has to be a consideration. How could it be otherwise?

Now most sentencing decisions are intuitive. Cognitive scientists refer to this mode of thought as System I. A great deal of research has shown that decisions of this kind are biased. This proposal in Vermont should be applauded. It is an effort to change the paradigm by shifting to System II, a reasoned approach to sentencing. What is the plan for accomplishing various objectives? What strategies and tactics are needed to accomplish those objectives? What is the evidence to show that they will be cost-effective?

Posted by: Tom McGee | Jan 23, 2013 1:54:46 PM

State Judges should consider cost to some degree....After all they represent the people and unlike Federal Judges, the states are accountable to the people they serve...I think states have been working had to get there local economies going, reduce excess costs and are doing a good job trying to par down excessive sentences... Good work.

The feds on the other hand are so worried if they've satisfied 3553 they can't wait to dish out still seemingly guideline sentences... Oh well, just watch the fieasco on TV, these guys are smart, but ever so ineffective...They are drunk on debt and spending cuts just don't seem to be there..

Well heres to our good Judge Jack Camp, who still has his atty license and is sitting home collecting his federal pension after doing cocaine with a hooker and got caught with a loaded gun in the front seat...( not a one time thing, was a drugee, actually presided over cases while he was doing drugs, but no harm was done, his decisions were all great, so says the federal investigative group) No gun bump, as he didn't use it in the coarse of his crime.. His felony drug charge got reduced down to a misdemeanor so he still has his license as well...

How many clients do you know that had drugs and a gun on them, (loaded and a round in the chamber) and escaped a felony gun bump, by the Feds...Waiting....Waiting....

Posted by: MidWestGuy | Jan 23, 2013 1:59:27 PM

Two points. First, defendants should be required to bear more of the costs. They created the problem; they can contribute something to help getting it fixed. Second, rehabilitative services, while I'm all for them as a supplement to incarceration, also have costs, and those need to be factored in as well.

Posted by: Bill Otis | Jan 23, 2013 2:58:01 PM

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