Cost as a sentencing factor: Missouri's experiment.

• Author: Flanders, Chad

1. Introduction

   In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for sentencing judges also should include the costs of various possible sentences. (1) Thus, for example, the pre-sentencing report for a person charged with second degree robbery would include not only the severity of the crime (in this case, "medium") and the prior conviction history of the offender, but also something resembling the following:

   Mitigating Sentence: Probation-5 years probation [at] $1364 per year. Total cost = $6770 Presumptive Sentence: Community Structured Sentence-5 years enhanced probation [at] $1792 per year. Total Cost = $8960 Aggravating Sentence: Prison-5-years prison [term] assuming expected actual time served of 62% = 3.1 years in prison [at] $16,823 per year + remaining sentence of 1.9 years on parole [at] $1354. ... Total Cost = $54,724[.] (2) In other words, the report would present the judge with various types of sentences and the price tag associated with each sentence. The proposed reform would make-and seems intended to make-the cost of each sentence a salient factor for the judge to consider.

   The reform was controversial, making local and national headlines. (3) Supporters of the inclusion of cost figures claimed that it was an important cost-cutting move, and, at worst, just another piece of information for the judge to consider. (4) Critics of the measure argued that sentencing was not about cost but about deciding what sentence was appropriate for the particular offender. (5) The allocation of social resources, they reasoned, was a job for the legislature, not something that judges should be worrying about. (6) Specifically, critics raised concerns about how to accurately and adequately calculate the social cost of putting an offender in prison and whether judges also should take into account the costs of crimes that those offenders put on probation, rather than imprisoned, might commit. (7) It might be cheaper to put someone on probation rather than imprison him, but if the person on probation goes on to commit a crime, there is certainly a cost to that. (8)

   The debate over the inclusion of cost figures in sentencing reports is part of the larger question of what factors are appropriate for a judge to consider when sentencing. (9) Should a judge include considerations of the social cost of certain forms of punishment when deciding a sentence, or does that mean the sentence is no longer tailored to the individualized facts of the crime and the criminal? The question of including sentence cost also raises an issue central to modern retributivist theory: to what extent can the criminal justice system and the various parties in it consider societal consequences in determining a sentence? (10) Should the right punishment be given to the offender, even if important social programs remain unfunded? (11)

   Indeed, the decision to include cost as a salient sentencing factor rubs against the retributivist intuition that judges should decide sentences based solely on the crime committed and the conduct of the offender.12 The intuition sometimes has a corollary: while judges are restricted in whether they can consider cost, legislatures are not.13 Indeed, legislatures should consider the costs of various sentences when passing sentencing legislation.

   This Article probes this intuition and offers a qualified defense of it. That is, the Article defends the critics of the Missouri sentencing reform. Part II spells out the intuition in more detail and attempts to give it a theoretical basis. The Missouri reform opponents' position reflects H. L. A. Hart's famous theory of punishment (and also a similar theory John Rawls present ed (14)), which proposed a division of labor between judges and the legislature. (15) Under this theory, consequences justify punishment on the institutional level, but the particular facts of a given case dictate the individual's punishment. Only the legislature, which is responsible for the institution of punishment as a whole, is empowered to consider the costs of sentences. Judges, by contrast, should consider only the punishment the offender deserves based on his particular crime. Hart's theory made punishment as an institution subject to consequentialist considerations, but in the individualized distribution of punishment, he was a retributivist. (16)

   Part III puts this picture to the test. If it is wrong for judges to include societal cost as a sentencing factor, what makes it appropriate, even necessary, for legislatures to consider cost? Are legislatures who make aggregate decisions about sentencing based on cost considerations also guilty of making sentences unjust? Alternatively, if consequentialist theories justify punishment as a whole, why is it wrong for judges to take into account those same consequentialist considerations when sentencing an individual offender? The problem with two-level theories, such as Hart's, is that they need to show how the two levels will not bleed or collapse into each other. If consequentialism is appropriate in some circumstances, we need to know why it is appropriate only in those circumstances, so that judges are prevented from considering any consequences when they sentence. Similarly, if judges are retributivists when they punish, forsaking concern with the overall consequences of their sentences, we need to know why legislatures also should not ignore consequences when they determine sentencing levels in the aggregate. These challenges are difficult to meet and require further delineation of the two-level theory.

   Part IV returns to the question of considering cost as a sentencing factor. If the distinction between the legislature and the judiciary's roles is not as clear-cut as the two-tiered theory suggests, then what remains of the intuition that judges should not consider cost as a sentencing factor? The obvious reasons might rest more on pragmatism than on principle. (17) For the usual reasons, consequences dealing with general considerations of social policy are better off for the legislature to decide. Indeed, the risk is that the public might blame judges for not cutting costs, when in reality the legislature should be the main force driving cost control. (18)

   But this Article argues that there also is the more principled consideration of consistency or uniformity that figures in the decision to disfavor factoring in consequences when it comes to judicial sentencing. (19) A decision to sentence based on cost is less likely to be uniform across judges than, say, the nature of the offense. Moreover, it is a lack of uniformity that is more likely to be morally arbitrary than other considerations. But this reasoning only shows that a sentence's cost should not have determinative weight, not that it should have no weight. There is only a strong argument against making cost an especially salient sentencing factor, which is what the Missouri Sentencing Commission reform does.

   This argument is avowedly theoretical and normative. That is, this Article tries to determine what judges ought to do, not what they in fact do. Judges and attorneys may argue cost at sentencing hearings, and many of them do. (20) That does not mean that they should be debating cost or basing sentencing decisions on it. I also am not concerned about whether, pragmatically, letting judges figure cost into their decisions might be a good thing overall, because it might lead to lower sentences. (21) I put these concerns to one side, important as they may be as a practical matter. (22) Instead, the Article questions: Ideally, what should sentencing look like? My answer is simple: Cost should be, at most, a marginal consideration in sentencing and should not be something that judges are urged to consider as a primary sentencing factor.

2. Justifying the Intuitive Picture

   1. Whether Judges Should Consider Cost in Sentencing

      The idea that judges should not consider cost in sentencing rests on the powerful, brute intuition that it is simply wrong for judges to base sentence length upon cost. Judges should sentence in spite of cost considerations, the intuition goes; they should not sentence because of cost considerations. (23) Even if a long term prison term is very expensive, the judge should give it to an offender if the offender deserves it.

      Phrasing the intuition this way puts it as pro-prosecution, and this is how the argument against judges considering cost naturally presents itself. Jail time is expensive, as the Missouri Sentencing Commission shows, (24) and if judges take into account cost, then they might lower sentences because they cost too much. It is hard to imagine that a judge will increase a sentence in order to spend more money. Rather, a judge, knowing the cost of a longer sentence, would only be impelled to impose a longer sentence in spite of the greater cost of that sentence. So the intuition that cost is an irrelevant factor naturally suggests that it would be wrong for a judge to decrease someone's sentence or to give that person a different type of punishment than was appropriate because it would cost the state too much money. (25)

      But if cost is an inappropriate factor to consider in sentencing, what factors are appropriate for judges to weigh? Here the sense is that what matters most of all is the crime that the offender has committed. (26) Subject to the limitations the legislature places on permissible sentences, the judge should look primarily at the offender's crime and to facts about it, e.g., was it done in an especially gruesome way, was it done with a weapon, etc.? The legislature may make some of these considerations salient, and appropriately so. For example, the legislature may allow a greater sentence imposed if a robber was armed. But the focus should be on what the crime was and matching the sentence in a way that it is particularized...