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January 9, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 at 04:12 PM | Permalink


judges don’t want to know how much a prison term will cost

Posted by: Asta J Jepsen | Jan 10, 2020 5:25:58 AM

I propose, "Your Honor, I am saddened to report that the defendant's sixth foray into serious felony crime has resulted in the continued abuse of our precious tax dollars. Because the defendant has failed to conform his behavior to the rather simple requirement of restraining himself from further crimes of violence, he has caused the public to bear an expense it should not have to bear. That expense is $(whatever the number is for the case). But make no mistake, the reason for this abuse of the public purse is the defendant. It is not the fault of the courts, the prosecution, the prison system, his many victims, the public, or defense counsel, it is the defendant's fault. So yes your honor, I ask you to recognize that the defendant's continued unwillingness to conform his behavior has caused the expenditure of those precious funds. I wish it were different, but it is not."

As for the argument that court's should consider costs, there is also the question of offsetting costs. For the period of defendant's incarceration, he is not drawing upon the myriad of other publicly funded programs thus saving those costs. He is additionally deterred from committing further crimes, thus saving publicly funded costs of police, fire, and medical depending on the types of crimes committed. Of course, these calculations cannot be easily made in an individual case, but they are actual costs and they do offset the prison costs.

The reality of this move is nothing more than an attempt to shift the topic from the defendant's conduct to something else with the goal of reducing accountability and punishment for crime. The advocates know that is a harder sell to the public directly, so they use this method as a proxy.

Posted by: David | Jan 10, 2020 9:54:47 AM

When we start talking about the cost of incarceration, I worry that we are giving support to those who want to essentially privatize law enforcement. It is difficult to quantify the "non-economic" costs of reducing crime (people feeling safe in their homes and on the streets) or all of the economic costs that can't be attributed to a single defendant (buying more secure doors, windows, and locks, paying for a home security system, etc.).

If law enforcement and the justice system aren't providing safety and security, then the only alternative is self-help. And, of course, the self-help will take two forms -- the wealthier will opt for gated communities that keep the criminals out with private security forces; the poor will have to live with the danger and resort to self-defense in a Wild West-type environment (a trend we are seeing in many states with expanded castle doctrines and stand your ground laws).

Posted by: tmm | Jan 10, 2020 10:52:59 AM

David, I am not sure if you are arguing for completing ignoring cost issues or doing a better calculation of costs. Moreover, drug, property and public disorder (e.g., drunk driving) are the most common offenses at sentencing, not violent crimes. Would you be against judges having cost data on, say, prison stays versus treatment programs for drug offenses?

I agree fully with the sentiment that it is hard to calculate all the costs of crime. But same goes for calculating all the costs of prison time -- e.g., lost productivity, harms/costs to family members of those incarcerated, etc. But I think the challenges here should not preclude efforts to inform key decision-makers about those costs that can be calculated.

Posted by: Doug B. | Jan 10, 2020 2:01:41 PM

I'm arguing against it because at bottom, the reason for the calculation is not anything other than to somehow suggest that incarceration is not worth it. Let that argument stand on its own and be honest about it to the public. I discuss the rest, because if you are going to talk about costs to the government (you mention costs to defendant's family which is not a cost to the government), you need to look at government savings as well. As an aside, lost productivity assumes real productivity to begin with, a very aggressive assumption for many, indeed most, serious offenders.

As far as your remark about most offenses not being serious crimes, I agree, and the cost of incarceration for those low levels offenses is similarly low as the custody time is often quite minimal to non-existent. But consequences for DUIs for example, including jail time, while expensive, is a strong deterrent for most of the public.

I will say that I would not be opposed to knowing the cost of prison compared to drug treatment. That being said, the question assumes a high degree of causation between drug abuser and criminality (which may be true) and a high degree of success in drug treatment (which in my experience is not true). Indeed, in my experience the programs that try to measure success, do say that they succeed but not because they stop drug abuse and therefore associated crime, but because they get to define what is measured as success. Crime doesn't go away just because you don't call it a crime anymore. The fact is here in CA, the government, whether it be the legislature, CDCR, counties, and probation departments have rewritten what counts as recidivism, or even worse, simply stopped supervising or enforcing the law at all and then touting the lower "recidivism" numbers. In my county, the progressive DA's Office simply has begun to stop prosecuting people for whole classes of offenses, thus lowering the recidivism numbers for those offenders who previously would have been considered to have recidivated. If this was done in the corporate world, they call that cooking the books.

Posted by: David | Jan 11, 2020 4:11:24 PM

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