Are Costs a Unique (and Uniquely Problematic) Kind of Sentencing Data?
Author(s): Douglas A. Berman
Reviewed work(s):
Source: Federal Sentencing Reporter, Vol. 24, No. 3 (February 2012), pp. 159-160
Published by: University of California Press on behalf of the Vera Institute of Justice
Stable URL: http://www.jstor.org/stable/10.1525/fsr.2012.24.3.159 .
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EDITOR’S
O b ser v a tio n s
Are Costs a Unique (and Uniquely Problematic)
Kind of Sentencing Data?
DOUGLAS A. BERMAN
Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law
The results of sentencing decision-making by judges are often the subject of close scrutiny and
extended debate. Public policy discussion and academic literature often explore whether and when
sentencing outcomes are just, are fair, and achieve various punishment purposes. But it is far less
common to see careful examination and systematic assessment of sentencing inputs. Perhaps due
to a rough consensus that sentencing judges need to consider information about both an offender’s
conduct and his character, controversies concerning the front end of the sentencing process tend to
focus mostly on how much weight should be given to particular sentencing factors rather than to
whether certain factors are proper for consideration at sentencing at all.
Thanks to an innovative program developed by the Missouri Sentencing Advisory Commission,
however, a debate over whether sentencing judges should consider the financial costs of a sentence
recently spilled onto the pages of the New York Times. In a lengthy front-page article headlined
“Missouri Tells Judges Cost of Sentences,” the Times provided this brief description of the Missouri
innovation and the kind of controversy it has engendered:
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.1
Thanks to the inspiration and organizational efforts of Professor Chad Flanders, the Federal Sentencing
Reporter is able to publish in this issue a set of original articles discussing the potential pros and
cons of Missouri’s innovative decision to make available to trial judges information about the
economic costs of various punishment options at the time of sentencing. Excitingly, Professor
Flanders was able to get former Chief Justice of the Missouri Supreme Court, Michael A. Wolff, to
author the lead article in this series. His piece provides context concerning the operation of
Missouri’s sentencing system and explains in detail just how and why the state began providing
Federal Sentencing Reporter, Vol. 24, No. 3, pp. 159–160, ISSN 1053-9867 electronic ISSN 1533-8363.
©2012 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press’s Rights and Permissions website,
http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2012.24.3.159.
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information about cost to its sentencing judges. Professor Flanders, along with Professors Lynn
Branham and Ryan Scott, follow with thoughtful commentary and some criticisms concerning not
only what Missouri is doing, but also broader issues as to what factors ought to influence sentencing
and which institutional players ought to focus on the fiscal consequences of particular sentencing
policies and practices.
FSR is not only grateful to Professor Flanders for putting together a terrific mini-symposium
on a cutting-edge state sentencing development, but it is also pleased to publish in this same issue a
distinct set of materials concerning federal sentencing outcomes. Specifically, in this issue appears
(1) part of a significant new report from the U.S. Sentencing Commission on the application mandatory
minimum sentencing, along with an original commentary by Paul Hofer concerning this report,
and (2) an important policy speech delivered recently by Assistant Attorney General Lanny Breuer
expressing concerns about recent federal sentencing developments, along with a response to that
speech from a group of federal defenders.
Tellingly, the Sentencing Commission’s report and the other materials commenting on federal
sentencing practices and outcomes present distinct and diverse perspectives on what even the most
basic federal sentencing data may tell us (and may not tell us) about the virtues and vices of the modern federal sentencing system. In this way, the Commission’s report, and the diverse reactions and
commentary that all the Commission’s data regularly generate, highlight that all forms of sentencing
data, and not just information about sentencing costs, can be interpreted and utilized by various sentencing actors in various ways.
As the title of this brief Editor’s Observation is intended to suggest, reviewing reports and debates
over federal sentencing data in the wake of the commentaries concerning Missouri’s innovative
program to provide cost data to judges raises broader questions about how sentencing judges and all
other sentencing actors can and should be expected to filter and assess competing data that necessarily
raise obvious (and sometimes-not-so-obvious) normative issues about punishment purposes and
the inevitable trade-offs between valid and competing public policy issues implicated in all criminal
justice debates. Whether there are systemwide concerns about economic costs of different sentencing
options or unwarranted sentencing disparities, or case-specific questions about whether a particular
offender is likely to be deterred or rehabilitated by a particular punishment, a wide array of legal and
political actors will always encounter and need to process a wide array of information from a wide
array of sources about different potential sentencing options and outcomes.
These issues concerning when and how sentencing actors receive and process sentencing
information demand broader reflection in part because, in response to continuing high rates of
recidivism despite high rates of incarceration, many lawmakers, sentencing commissions, and
judges have started paying greater attention to new social science research concerning whether and
how different forms of punishment for different types of offenses and offenders impact recidivism
rates. These trends have accelerated in the last few years as budgetary concerns in many jurisdictions
have prompted policymakers to seek to limit or reduce the considerable costs associated with incarceration; lawmakers and public-policy groups around the nation have been investigating and adopting
sentencing and corrections reforms that can efficiently and effectively divert or release offenders
from prison without resulting in an adverse impact on public safety. In some form, nearly every
state in the nation has adopted, or at least been seriously considering how to incorporate, evidencebased research and alternatives to imprisonment into their sentencing policies and practices.
For understandable reasons, it is hard to be seriously opposed to, or even skeptical about, modern
movement toward these “evidence-based” sentencing policies and practices. But the materials in this
issue provide an important reminder that even references and appeals to “data” or “evidence” come
freighted in the sentencing setting with deep philosophical concerns and intricate normative questions about potential trade-offs between those competing public policy issues always implicated in all
criminal justice debates. While the provision of cost information to sentencing judges in Missouri
serves as the latest locus for these debates in the states, and while the application of mandatory minimums and concerns about unwarranted disparities serve as enduring subjects of debate in the
federal system, these matters are just a piece of the even bigger puzzle concerning how legal and
political actors can best process all the data necessarily brought into the sentencing equation.
Note
1
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Monica Davey, Missouri Tells Judges Cost of Sentences, N.Y. Times, Sept. 18, 2010, at A1, available at http://
www.nytimes.com/2010/09/19/us/19judges.html
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