Tuesday, December 6, 2011
Chad Flanders (Saint Louis University - School of Law) has posted Cost and Sentencing: Some Pragmatic and Institutional Doubts (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) Will judges use cost as a factor in a consistent and uniform way? and (3) Are judges in the best position to make cost decisions in sentencing, or should this be left to the legislature?
The motivation for including cost in sentencing is in one way inarguable: sentences should at some level be determined by taking into account all the relevant information, and should be done in a way that is the most cost effective. But it is a separate question which institution – the legislature, the executive, or the judiciary -- should be making decisions about cost. There are difficulties in getting legislatures to act in ways that are cost effective, especially when dealing with punishment. Still, things are starting to change, and we might hope that sentencing reform from the top down will happen, and happen sooner rather than later. Sentencing commissions should push them to take this responsibility, and not, as is the case with giving judges the power to decide sentencing decisions, give them a way to shirk their responsibility.