Thursday, December 8, 2011
Lynn S. Branham (Saint Louis University - School of Law) has posted Follow the Leader: The Advisability and Propriety of Considering Cost and Recidivism Data at Sentencing (Federal Sentencing Reporter, 2012) on SSRN. Here is the abstract:
The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.
This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options they are mulling over and their effects, in terms of recidivism reduction, is not only appropriate, but laudable. First, judges already engage in cost-benefit assessments, though typically crude ones, when imposing sentences. Second, judges should engage in cost-benefit assessments as part of the sentencing decision-making process. Third, it is advisable and efficient for the financial costs and recidivism risks of various sentencing options to be calculated by experts who then transmit this information to a sentencing judge. Fourth, the consideration by judges of the costs and risks of the varied sanctions that they could impose on a defendant comports with, and indeed furthers, sentencing objectives, including retribution. Fifth, judges’ consideration, at the time of sentencing, of reliable data about the financial costs and recidivism risks of various sentencing alternatives does not usurp legislative prerogatives. And sixth, the open dissemination of information to judges about the financial costs and recidivism risks of differing sentencing options in a case will bring more transparency and accountability into the sentencing process.