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Commentary: The cost of justice

This article first appeared in the St. Louis Beacon, Sept. 17, 2010 - Every year in my first-year criminal law class, I have my students consider a sample "Sentencing Assessment Report" provided by the Missouri Commission on Sentencing. The report describes the facts and the nature of the crime -- in this case, a loser who turns online predator -- some mitigating circumstances, and a recommended sentence. I ask my students in class to play judge and assign an appropriate sentence.

My students debate whether the offender deserves jail time or probation, whether he's a good candidate for rehabilitation, and how many years is enough for someone who seduces children online. What the students don't consider, because it isn't part of the sentencing report, is how much each punishment would cost. But this is going to change, and one thing my students will be debating next time I teach criminal law will be whether the cost of a punishment should matter as judges make their decision.

According to a recent Post-Dispatch article, initial reaction is mixed. A prosecutor quoted in the story worried that judges might not sentence offenders to prison time because alternatives would be cheaper. A defense attorney seemed to endorse the reform for the same reason -- once judges see the cost of prison, they might see probation as more appealing.

Of course, finding the exact cost of any punishment is going to be hard. Some seemingly less punitive sentences, such as drug treatment, may cost more money compared to prison time alone. And although the sentencing reports will include information on recidivism rates for each crime, these aren't calculated into the cost of punishment itself. The price tag will only reflect how much, say, drug treatment will cost right now -- it won't reflect the savings gained from successful drug treatment, treatment that manages to keep the offender from more jail time in the future.

The more important issue is whether this is the kind of information judges should have in sentencing an offender. Should the question of which punishment is appropriate for this offender, for this crime, turn on how costly the punishment is?

Whether you find yourself more sympathetic to the prosecution or the defense, such judicial bean-counting is worrisome. Sentences should be based on the severity of the crime and on the characteristics of the individual offender. They shouldn't be based on the savings to the state. Putting price tags on sentencing assessment reports invites judges to misconstrue what their role is.

The question of cutting costs is properly given over to legislators, who are in a better position to make decisions about sentences in the aggregate -- about what kinds of punishments the state can afford and the appropriate sentencing range for each crime. By giving the judges a role in reducing costs, legislators can avoid tough choices about building more prisons or reducing sentences for nonviolent offenses. Instead, they can blame judges for not choosing the cheaper sentence.

The motivation for putting cost in the sentencing assessment reports is probably benign. It was likely meant to show how truly cost-effective punishments other than prison can be. But if this is a good idea, it is a good idea that the legislature should hear and heed.

As it stands, judges get the worst of both worlds. If they base their punishment on cost, they will be basing their sentence on something that should be irrelevant to sentencing. But if they don't take cost into account, they risk the ire of citizens and legislatures for spending money the state doesn't have. It would be better not to put judges in that position in the first place.

Chad Flanders teaches criminal law at Saint Louis University School of Law. 

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