Malo periculosam, libertatem quam quietam servitutem.



September 2010



Should Judges Consider Costs?

Written by , Posted in The Courts, Criminal Justice & Tort

The New York Times describes how Missouri judges now have additional information to consider while making decisions:

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.

Noted libertarian economist Jeffrey Miron asks: “When a judge is on the fence about alternative punishments, why not choose the less expensive one?”

For me, the answer to that question likely depends on how those costs are measured. Do they include the different recidivism rates, and thus the different residual costs, that accompany different punishments? Based on the article it seem like that’s probably considered.  What about the economic costs should businesses and residents be driven away by policy that is too lax on criminals? That seems trickier to measure in such a way, but perhaps it can be modeled.

I’m all for giving judges as much information as possible, but jurisdictions should be careful about not using the availability of such information as an excuse to let judges handle decisions about the allocation of social resources that might best be left to the legislature. Ultimately, it should be up to the representatives elected by the people to determine where precious resources are best spent.  That said, if they think giving judges this information will maximize the utility of those funds they have allocated to law and order, than it might be a worthwhile experiment after all.

  • Sarah Anathea

    In Ethics, we don't ask "Is it worth the costs to give OJ a fair trial?" but rather, we have a duty to give all citizens a fair trial, and to presume them innocent until proven guilty. It is interesting to see a contrary Utilitarian (not Deontological) ethics being applied to JUSTICE in the administration of Criminal Justice. But this precedent was already set in the fines and penalty given to the automobile manufacturers of the cars /trucks with the "exploding gastanks." These defective cars and trucks injured people so badly that huge injustices were done, and huge settlements could have resulted. The courts, as I remember, (about ten years ago) awarded the "punishment" with a better RESULT, costing LESS and having greater BENEFIT (Utility!), namely, those AUTO SAFETY ADS that GM ran on television. These ads were required, but did more good, it was thought, than a sensationally high fine or criminal penalties.

  • sarah Anathea

    Overall, preventing more accidents of all kinds had higher utility than punishing the makers of the exploding gas tanks which did represent a small minority of traffic deaths. But applying COSTS to the criminal law is scary if it REPLACES justice or fairness and the due process of law. However, that is not the case here: Judges say they use "costs" in ADDITION to "a thousand other factors." Therefore, as an Ethicist, I have no trouble with this policy as it is. It does open a frightening door in which the State can act in its bests interests instead of in the interests of impartial, neutral justice, universally available to all.