Should a Judge Consider the Cost of a Sentence?

Sept. 16, 2010 — -- 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.

"I feel very strongly that Missouri is pioneering an important and valuable revolution in sentencing procedure," wrote Ohio State University professor Douglas A. Berman on his Sentencing Law and Policy blog.

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.

"If it is a particularly heinous crime," he said, "then cost is irrelevant. But if you have a crime that involves the sentence of either a period of community supervision or a period of jail, the question is which sentence will make him less likely to re-offend. Oftentimes, the sentence that will produce the greater risk of recidivism is the most costly sentence."

The information is available to the judges as a tool, but they are free to disregard it.

"Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet," Berman said, "I think it is critical [especially in these lean budget times] to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options."

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. "

Berman hoped that at a time when economic resources are tight and prisons are overcrowded, the idea will spread to other state and federal courts.