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A Laudable Formula, But It's Missing Some Variables

Sep 20, 2010
By .
Law, Politics & Current Events

Missouri to Judges:  Do you have any idea what it costs to put these people in jail?

Judges to Missouri: Actually, we didn't.

When judges here [St. Louis] 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.

This may seem a crass question, but why shouldn't the cost of imprisonment be one factor, of many, that judges weigh in their sentences?  It's not as though a second degree murderer is going to get probation, but it is nice to know that a judge might have to think about what it costs to lock up a small time user or seller of marijuana.  After all, someone has to pay for a judge's largesse in handing out active time to non-violent offenders such as drug users.  And the people paying are not judges.  Nor are they the prosecutors who are having absolute conniptions over Missouri's consideration of cost in sentencing.

[C]ritics — 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.

With all respect due to the honorable Robert P. McCulloch, Mr. McCulloch has not earned an honest dollar since he took over the office of state's attorney for St. Louis County.  I define an "honest dollar" as one voluntarily transferred, by its owner, to another in return for goods or services of perceived value.  All of the dollars Mr. McCulloch earns are involuntarily transferred, by people who fear, for good reason, that if they do not pay taxes they will be imprisoned by someone like Robert P. McCulloch.

I suspect that if the St. Louis County prosecutor's office had to hold a pledge drive, or a bake sale, or a car wash, to pay its bills, Mr. McCulloch's salary would be far lower.  He might have to take an honest job to supplement his pay.

Judges, and prosecutors, do not generate wealth.  They merely subsist on involuntarily transferred wealth generated by others, as do police, prison guards, wardens, public defenders, social workers, probation officers, legislators, and all of the other traditional "stakeholders" in the criminal justice system.

So why shouldn't they consider what it costs others to lock up an offender, versus supervised release?  For that matter, doesn't Robert P. McCulloch, as a public servant charged with husbanding the resources of the citizens of Missouri, make that decision every day?  Do St. Louis county prosecutors go balls to the wall every time some jerk is accused of driving 79 in a 55, or letting a passenger hold an open container of beer, insisting on jail time for petty crimes and misdemeanors?  Of course not.  They husband their own resources, their precious time, because they don't want to try cases until midnight 7 days a week, or to let murderers go because they were busy throwing the book at a 19 year old who tried to get into a bar with a fake ID.

No, the objection to Missouri's novel system is that it's a rabbit hole, and prosecutors know exactly how far down that rabbit hole goes.   If judges are allowed to consider the cost of a prison sentence, the public may as well.  The public should as well.  The public, in post-industrial St. Louis County, might consider exactly what it costs to run the state's version of the war on drugs, and to prosecute other victimless crimes.  God only knows where that could lead.  It could lead to a lot of St. Louis County prosecutors losing their jobs, as St. Louis County voters consider whether their money is better spent on improving the county's abysmal schools than on prisons.

And if judges are to consider the cost of imprisonment, they might be encouraged, openly, to consider other societal costs that they already consider covertly when they're doing their jobs properly.  Like the cost to society of taking a father away from his children for several years over a non-violent offense.   Or whether a dishonest police officer or other public servant costs society more than a dishonest taxpayer (who holds an honest job as I've defined it above).  Horrors!

If we go all the way down the rabbit hole, we could see judges given some actual discretion in sentencing, as opposed to mandatory minimums, structured sentencing, and other appealable guidelines.   It would be just like the 1970s, dope fiends running around in the streets of St. Louis raping white women with only Dirty Harry, the Warriors, and Charles Bronson (whatever the name of his character was), standing between America and anarchy.  And then, as the Russians invade the east coast, the Chinese invade the west coast, and the Cubans invade the south coast, and the Canadians invade the north coast, only the Wolverines! will fight to stave off communism.

Or not.  Maybe, if judges are required to at least think about costs of sentencing, St. Louis County will actually be safer and better governed, with prison time (that is to say, someone's honest dollars) being channeled from victimless crimes to truly violent offenders.

Via Jeffrey Miron, who has a sense of humor rather like my own.

Last 5 posts by Patrick Non-White

15 Comments
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15 Comments

  1. SeanD  •  Sep 20, 2010 @6:15 pm

    A bit further down the rabbit hole lies the idea of holding judges accountable (especially in areas where they are elected) by researching and publishing (preferably on billboards) just how much Judge So-and-So has cost the taxpayers for, say, imprisoning drug users over a specified period of time. It requires a lot of time and familiarity in reviewing criminal records but it could be done. Are you listening George Soros?

  2. Patrick  •  Sep 20, 2010 @6:35 pm

    Yeah, if the public knew what Judges nicknamed "Maximum" cost them each year…

    They'd vote to defund group housing for the mentally retarded.

  3. PLW  •  Sep 20, 2010 @6:42 pm

    Certainly, someone needs to think about those costs, but I'm not sure judges are the right people. It's the legislature's job is to make these sorts of trade-offs when writing laws, and the judge's job is to matches specific cases to the appropriate statutes. There might be conditions for which it's better to allow discretion at both levels, but it's certainly not optimal, in general.

  4. SeanD  •  Sep 20, 2010 @7:15 pm

    Patrick:

    That's why you gotta pick your poison. My favorite is marijuana, er, the costs of imprisoning / prosecuting marijuana users. It'll be interesting to see if Prop 19 passes out here in CA whether people in the rest of the country will give more thought to these costs. You are on point though with respect to the costs people will bear to feel safe.

  5. Steve  •  Sep 20, 2010 @8:44 pm

    I'm not too crazy about the idea of judges attempting a cost/benefit analysis at each sentencing, especially since I'm consistently rolling my eyes whenever I read a court opinion in which the author attempts any kind of economic analysis. I'd like to see the cost taken into account, but as PLW above says, I'd rather see these decisions made by legislatures than by individual judges.

    I think it makes a lot of sense for non-violent offenders to be sentenced to community service–the more serious the offense, the more hours you put in. Steal a car? Hey, if you can be locked up for years on end for that offense, there should be no objection (on 8th Amendment grounds or otherwise) to requiring 20 hours of community service per week for an equal number of years. I'd like to see more programs that can put this source of labor to productive use.
    Incarceration should be largely reserved for those who pose a serious immediate threat to society and those who fail to comply with the terms of alternative sentences.

  6. VRaverna  •  Sep 20, 2010 @10:23 pm

    Maybe you should outsourced your prison to third world countries. $504600 for 30 years prison? You can pay the expense for a family of 4 for 100 years in Indonesia with that amount. To house a prison for 30 years cost less than $50000.

    So anyone want to start an outsourcing prison business in Indonesia? State of Missouri can pay $100000 to house each inmate for 30 years and after substracting the expense, you make over $50000 per inmate. :)

  7. KipEsquire  •  Sep 21, 2010 @6:24 am

    While we're at it, let's make the judicial powers of remititur and additur plenary, so judges are free to consider the "economic impact" of civil verdicts on the parties regardless of what the law might actually say on the subject.

  8. Grandy  •  Sep 21, 2010 @6:41 am

    Would Posner support this?

  9. John  •  Sep 21, 2010 @7:56 am

    I think it would be sufficiently useful if media reports on trials included the cost analysis. Something along the lines of "Joe Blow was convicted of pot possession and sentenced to 7 years in jail, at a cost to you, the taxpayer, of $X thousand/year." A bold journalist might even note, "that $X/yr represents 110% of what city/county/state spends on middle school textbooks annually."

    Never gonna happen, though…

  10. Imaginary Lawyer  •  Sep 21, 2010 @10:54 am

    PLW has the right of it – these are calculations that shouldn't be left to judges. Besides, rather than letting drug users off lightly at the end of the process because of cost, don't we want to stop prosecuting them in the first place?

    We also shouldn't have any illusions that judges under such a program would only hesitate to apply a cost/benefit analysis to harmless pot smokers. It's really not a stretch of the imagination to see a reactionary judge seizing on "cost to the taxpayers" as an excuse to give a slap on the wrist when it fits his or her political views. Oh, Mr. Policeman beat up an arrestee? Well, we don't want to waste good taxpayer dollars locking up this fine law enforcement officer.

  11. Ken  •  Sep 21, 2010 @4:48 pm

    These decisions are best left to the jury since in the end society bears these costs, and the jury is our representative in the criminal justice system.

  12. Patrick  •  Sep 21, 2010 @6:37 pm

    Jurors don't determine the sentence in the federal system, nor in most states Ken.

  13. Vice Magnet  •  Sep 21, 2010 @9:45 pm

    In some ways this reminds me of college instructors adopting textbooks for students with no or little consideration as to the cost of said materials. It's easy to spend someone else's money.

  14. John  •  Sep 22, 2010 @7:47 am

    @Vice Magnet: Really? How about those profs who sell their own textbooks, amazingly updated every year just enough to change the pagination? Can't use last year's book because all the page cites would be wrong. There goes another $300…

  15. John David Galt  •  Sep 25, 2010 @11:18 pm

    Like the idea of forcing restaurants to show calorie counts on menus, this is a one-sided band-aid solution because it tells only one side of the story.

    I'd be in favor if the same law also required judges be informed how much this particular criminal (if known), or an average instance of the same crime, has cost victims and/or the public purse; what fraction of crimes of this type ever get "closed" by convicting someone; and the probability that the convict will re-offend after release (based on the type of offense(s) and figured separately for different possible sentences, if the data are available).

    This inspires me to propose what I think is a much more worthwhile labeling idea:

    California's enabling law for voter initiatives requires each proposed measure to be submitted to the Legislative Analyst, who tries to predict what it will cost (or save) taxpayers if enacted. The answer is then required to appear on petitions for the measure, and on the ballot if the measure makes the ballot. I propose that this requirement be extended to every bill in Congress and state legislatures, and that the analysis appear on the legislator's website (along with the bill) during at least a one week "cooling off period" before they're allowed to vote on the measure. And if a bill is amended even slightly, a new analysis and posting period would be required.