In Missouri, judges now calculate cost of punishment

ST. LOUIS — When judges in St. Louis sentence 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 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. 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 in Missouri 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 in legal circles. It has been lauded nationally by a disparate group of defense attorneys and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternative sentences to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly and 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 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.

"There is no average case," McCulloch said. "Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right."

Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into some numerical equation.

"This is one of a thousand things we look at, about the tip of a dog's tail, it's such a small thing," said Judge Gary Oxenhandler, a presiding judge in the 13th Judicial Circuit Court and a member of the state's sentencing commission. "But it is almost foolish not to look at it. We live in a what's-it-going-to-cost society now."

Budget woes

The shift comes at a dire time for criminal-justice budgets around the country and as states try to navigate conflicting, politically charged demands: Keep people safe and cut costs. Michigan has closed some prisons and prison camps. Arizona considered putting its entire prison system under private control. California is searching for ways to shrink its prison population.

Legal scholars predict policies similar to the one in Missouri may soon emerge in other states.

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with the cost information on individual cases.

Judge Michael Wolff of the State Supreme Court, chairman of the sentencing commission, said judges had been asking for such data. By last month, Wolff said, the computer algorithm was up and running, and the commission made note of it to the legal community in its August newsletter, "Smart Sentencing."

The concept is simple: Fill in an offender's conviction code, criminal history and other background, and the program spits out a range of possible sentences, statistical information about the likelihood of Missouri criminals with similar profiles to commit more crimes, and, most controversially, the various options' price tags.

Leaders of several commissions in other states said they had yet to consider a plan like Missouri's. Some voiced concern about the ramifications, the methodology, even the price tag of calculating sentencing price tags.

"My first question was: 'How can they possibly do that?' " said Lynda Flynt, executive director of the Alabama Sentencing Commission. "With a life sentence, how would you measure how many days that person would spend? You don't know when or if he is going to be paroled. You don't know his medical condition, and you don't know when he's going to die."

Legal experts weigh in

Lots of states measure the cost of imprisonment, but on a generic scale. Many states, for instance, calculate the average cost of housing a prisoner for a day, but that is rarely mentioned with down-to-the-dollar figures for a specific person in the moments before a judge picks a sentence.

To some, the concept sounds crass and carries the prospect of unwanted consequences. Might a decision between life in prison and a death sentence someday be decided by price comparison? No, Missouri officials say, and the computer model does not attempt to compute the cost of capital punishment. Could the costs of various sentences become so widely known as to affect the decisions of jurors?

Numerous legal experts on sentencing said Missouri's new policy made sense. Economic considerations play roles in all sorts of legal decisions, Rachel Barkow, a law professor at New York University said, so why not let judges understand the cost of their choices?

Douglas Berman, a law professor at The Ohio State University, said: "One of the flaws in the operation of our criminal-justice system is not only the failure to be attentive to cost but an arrogance that somehow you can never put a price on justice. Long missing has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost."

Others, like Paul Cassell, a law professor at the University of Utah, said Missouri's plan counts only certain costs and fails to calculate others, the societal cost, for instance, if someone not incarcerated commits another crime.

"No one can put a price tag on being a victim," said Scott Burns, executive director of the National District Attorneys Association.