Aside from the question of what enters a judge’s mind when she imposes a sentence of 17 years as opposed to 16 (or 15, or 14, or whatever), we assume there’s some rational basis for making such odd and fine distinctions with another person’s life. Via Doug Berman , the State of Missouri has chosen a different path that infuses sentencing decisions with a healthy dose of reason. From ABC News :
When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.
The information is part of an offense summary culled from statistics kept by the state’s Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend.
While it appears that the program, called MOSAC, is directed at making judges aware that there is a discrete cost to their decisions, it provides a statistical recidivism rate to go along with the price tag. While it’s unclear whether the rate of recidivism is generic, or has the capacity to take significant individual factors into consideration, it certainly beats judges sentencing based solely on their own experience or anecdotes to address the specific deterrence prong of sentencing.
From a societal perspective, it’s somewhat amazing that judges have been imposing sentences without a hard understanding of the cost of their decisions. It’s not that judges don’t realize that putting someone in prison has a cost, or is expensive, but that they lack the information necessary to have a meaningful appreciation of just how expensive a particular sentence is. When the sentence is somewhat whimsical, such as a 16 year sentence as opposed to a 19 year sentence, as if the latter will accomplish something the former won’t, the cost difference matters.
This is how MOSAC purports to work:
For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.
However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent.
What’s rather astounding, and counter intuitive, is that the lengthier the sentence, the higher the likelihood of recidivism. Yes, this is a blunt instrument for ascertaining recidivism, but it also flies against the “common wisdom” that the longer the sentence, the better the lesson learned. To the contrary, the longer the sentence, the less likely a defendant will ever be able to reintegrate into society as a law-abiding member. Try telling that to a hanging judge.
This is not to say that sentences should be based exclusively on public finance. Clearly, there are times when the cost of a sentence is irrelevant, but this information, unlike the pre-Booker sentencing guidelines, doesn’t constrain a judge but merely informs.
The information is available to the judges as a tool, but they are free to disregard it.
“Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet,” [Doug] Berman said, “I think it is critical [especially in these lean budget times] to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options.”
Considering the fact that judges have been making sentencing decisions without any hard consideration of the cost, and thus without any real thought to cost/benefit, the availability of this information for use in injecting a rational basis, as well as a price tag, to decisions which have too often been utter fancy seems like a no-brainer. It does no harm to individualized sentencing based upon the legitimate applicable sentencing factors, but compels judges to squarely face the cost of their “feelings” about what sentence is needed in any particular case.
Reason and information in sentencing. What a concept.
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Professor William Miller from the University of Michigan Law School just gave a fascinating lecture (at St. Thomas University School of Law: go Bobcats!) on the meaning of an “eye for an eye”. I certainly cannot do it justice here, but essentially he seemed to infer the payment of an eye was not a factor of revenge but instead an economic factor in which two people who had become uneven are made even again.
Within that premise, it isn’t surprising that a longer prison sentence wouldn’t necessarily “teach” a better lesson because the system would be tipping the scales past even and back into an uneven position thereby creating a situation where a person might try to become even again by committing more crimes.
Like I said, I cannot do it justice but if I can get my hands on the tape, I’ll try to pass the lecture along.
I’m having a hard time understanding the underlying concept that an “eye for an eye” is merely an economic exchange rather than some sense of rough justice, but I would be interesting in learning more. Not that I necessarily want to read a law review article on it, but the cliff notes version would be appreciated.
“What’s rather astounding, and counter intuitive, is that the lengthier the sentence, the higher the likelihood of recidivism.”
That seems extremely reasonable to me, so long as you understand that correlation is not causation. Assuming judges are not idiots, the inmates with long sentences for offense a likely committed a worse version of that offense than those that got off with shorter sentences.
You are absolutely right about distinguishing correlation from causation, an important point. That said, though, I note that the distinction between (for example) a three and five year sentence doesn’t reflect a “worse version of that offense” but nothing more than a harsher sentence. Wider disparities, like three years to 10 years is a different story.
For an individual, that may be true, but for the data the recidivism rates are based on, that’s absolutely not true.
The data is not controlled, and the details of each case definitely go into each sentence.
The class of people with a 3 year sentence is likely not the same as the class of people with a 5 year sentence. We have no reason to believe that upping everyone with 3 year sentences to 5 year sentences would cause them to repeat at the same rate as the 5 year sentence group.
The cost estimates are useful, but the recidivism rates are not.
I disagree with your distinction between 3vs5 and 3vs10.
Each group of people with a specific sentence fits into a curve of sentences that are too lenient, just right, and too harsh. Some people with 5 year sentences likely deserved less punishment than some people with 3 year sentences, but I’d be surprised if the nonoverlapping area was not significant. The overlapping area might have a 25% recidivism rate, but the lower tail of the 3 year sentences only has a 10% rate while the upper tail of the 5 year sentences has a 40% rate.
Does dropping 2 years off someone’s sentence change anything about the recidivism rate? We don’t know, and unless we’re willing to sentence people randomly in the possible range for their charges, we’ll never know.
I was always told that “an eye for an eye” was to avoid “more than an eye for an eye.”
I can certainly see how it can be phrased as an economic exchange but I think it’s more an early example of proportionality in punishment.
There’s also not such a clear connection between doing serious crimes and more re-offending. It’s rare that someone kills more than one person but someone might break the speed limit every week. Generally the more serious the offence you commit the more unusual the offence will be and, therefore, the more unusual it will be that you will do it again.
Unfortuantely, I can only respond anecdotally, which isn’t really the point here. However, as Scott notes above, if you take someone who was otherwise doing alright and was tied in and accountable to society and take him away from his job and family and place him in housing with a bunch of criminals for several years on top of brandishing him with a scarlet letter of felon that will likely dim his work prospects significantly, its a reasonable hypothesis that that person will be more likely to reoffend than the person who is allowed to continue doing the good things they are doing while being watched closely by probation. Does anyone know of a study that specifically addresses this and accounts for the correlation issue?
It’s very rare that someone has more than one killing in him. Most people, once they let that killing out, aren’t a danger to anyone.
Unless someone walks on their lawn again.
John Mortimer said that he preferred dealing with murderers to divorcees – a murderer generally had just one person he really hated and they weren’t annoying him any more.
While I agree with the overall idea (especially concerning probation vs prison), the rates themselves are still useless.
Also, there’s the question of deterrence. If the punishment for a certain crime is lightened, might people be less inclined to avoid committing it?