NY TIMES September 18, 2010
Missouri Tells Judges Cost of Sentences
By MONICA DAVEY
Missouri law to outline the costs of various penalties
ST. LOUIS — When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.
For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.
Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.
The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.
But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.
“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.
The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison.
“There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”
Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation.
“This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”
The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.
Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.
Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.
Judge Michael A. Wolff of the State Supreme Court, chairman of the sentencing commission, said judges had been asking for such data. By last month, Judge Wolff said, the computer algorithm was up and running, and the commission made note of it to the legal community in its August newsletter, “Smart Sentencing.”
The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.
Judge Wolff said that some judges might never look at the price tags (though they are available to anyone, and some defense lawyers have begun mentioning them) and that judges ultimately did whatever they wished (within statutory limits) on sentences. Missouri’s sentencing commission makes recommendations only. And as Judge Wolff sees it, sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer.
“This is just more information,” Judge Wolff said. Fewer than half the states have sentencing commissions like Missouri’s. In many cases, the commissions grew out of concerns, starting in the late 1970s, about racial and geographic disparities in sentences.
Now, however, the groups find themselves also weighing fiscal issues, like everyone else. Consider the theme of a meeting of the national association of sentencing commissions in August: “Sound Sentencing Policy: Balancing Justice and Dollars.”
Leaders of several commissions in other states said they had yet to consider a plan like Missouri’s. Some voiced concern about the ramifications, the methodology — even the price tag of calculating sentencing price tags.
Lots of states measure the costs of imprisonment and of new criminal laws, but on a generic scale. Many states, for instance, calculate the average cost of housing a prisoner, but that is rarely mentioned with down-to-the-dollar figures for a specific person as a judge picks a sentence.
To some, the concept sounds crass, and carries the prospect of unwanted consequences. Might a decision between life in prison and a death sentence be decided some day by price comparison? (Absolutely not, Missouri officials say, and besides, the computer model does not attempt to compute the cost of capital punishment.) Could the costs of various sentences become so widely known as to affect the decisions of jurors?
Numerous legal experts on sentencing issues said Missouri’s new policy made sense. Economic considerations play roles in all sorts of legal decisions, Rachel E. Barkow, a law professor at New York University, said, so why not let judges understand the cost of their choices?
Douglas A. Berman, a law professor at The Ohio State University, said: “One of the flaws in the operation of our criminal justice system is not only the failure to be attentive to cost but an arrogance that somehow you can never put a price on justice. Long missing has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost.”
Others, like Paul Cassell, a law professor at the University of Utah, argue that Missouri’s plan counts certain costs but fails to measure others — the societal price, for instance, if someone not incarcerated commits another crime.
“No one can put a price tag on being a victim,” said Scott Burns, executive director of the National District Attorneys Association.
Still, money worries loom. This year, in an annual address, even the chief justice of Missouri’s Supreme Court, William Ray Price Jr., warned that the system would be threatened if budget cuts persisted.
“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders,” he said.
Mr. McCulloch, the prosecutor, said the state’s prisons were filled with anything but harmless people. “You show me the college kid with a perfect record and a dime bag of weed who has been sent to prison, and I’ll get him out,” he said. “Find me him.”
When Missouri lawmakers meet next year, Mr. McCulloch says that he expects he and others may push to abolish the sentencing commission.