Post by Randall Ryder
In most criminal cases, the case can be divided into two parts: deciding liability and deciding the penalty. Sentencing guidelines provide judges with recommend guidelines (or some cases, mandatory sentences). The guidelines also give judges discretion in modifying sentences for each defendant. Judges in Missouri, however, are now given information on how much a particular punishment will cost. Is that a good thing? The practice has started a fiery debate among prosecutors and defense attorneys.
Defense attorneys argue that this is a great idea, because it should help judges consider other alternatives to prison. This posits, of course, that judges are predetermined to consider prison the preferred sentence and adverse to alternatives. In theory, defense attorneys hope that when a judge learns that prison sentence may cost a state perhaps six times more than probation, the judge will seriously consider probation.
Prosecutors, on the other hand, argue that this will simply reduce sentences to a "mathematical formula" and judges may simply choose an option because it is the cheapest one. Prosecutors argue that this option should be irrelevant to sentencing and fails to adequately consider the impact on society. In particular, the risk that a judge may choose a cheaper option and overlook the danger that a particular defendant poses to society at large.
So what do judges think? At least one prominent judge, Gary Oxenhandler, the presiding judge of the 13th Circuit, seems to think it is a good idea. Oxenhandler notes that judges consider a number of issues when deciding on a sentence and this is just one of many considerations, saying that " . . . it is almost foolish not to look at it." Another judge notes that in violent crime cases, a judge would not even consider the cost, even if they know what the cost is.
Although the economy appears to have turned around, that does not instantly fix the budget crunch in states around the country. In many respects, the effects of the financial downturn will be felt for years to come. Perhaps the consideration is part of a larger policy shift towards alternatives to incarceration. In California, for example, voters will decide this fall whether to make marijuana use legal within certain parameters. This suggests that at least state is shifting its use of using criminal justice resources for a more narrowly targeted group of crimes.
What do you think, should judges know how much sentences cost?