Sep
19

Approaching Reality In The "Show Me" State

I am not yet prepared to say I want to live in Missouri, but I sure might prefer practicing law there. That's because in Missouri, judges now are considering the cost of incarcerating a defendant. This morning's New York Times reports that judges now consult a statewide database to estimate the economic cost of the various sentencing options for a defendant convicted of a crime.

According to the Times, a judge might learn that imprisoning a man convicted of a endangering the welfare of a child for three years would cost the state $37,000, a number that seems unrealistically low as the average cost to imprison a man is $30,000 per year in my home state, Connecticut. Putting the man on probation for the same period might cost only $6,770.

Shouldn't judges have this kind of information?

We intone in somber tones at sentencing that a defendant must take responsibility for his or her actions. Yet the criminal justice is too often schizophrenic: Lawmakers define crimes and mandate sentences without stepping foot in a courtroom or meeting an actual defendant; judges follow one-size-fits-all rules with a sickening sense that something less than justice is done. Prosecutors defend their charging decisions by noting that they are obliged to fit the vagaries of our conduct into the boxes created by others: they are just doing their job. And all players pass the costs of this along to taxpayers, who often as not merely want blood and vengeance because they've been whipped into a moral frenzy by media intent on telling the raciest and most shocking stories it can find.

Throughout this maddening process, no one really counts the cost.

Missouri is taking a step in the right direction, but it's new cost-based sentencing policy doesn't go far enough. Why not let jurors know the cost of a year in prison and the prison time to which a defendant is exposed if convicted? Hiding these larger truths from jurors prevents them making a reasoned moral response to the acts they are considering. Sure, someone might have broken the law, but does the community of those who will actually pay the cost of incarceration think the prosecution is worth the expense?

Critics of the Missouri plan think the state has not gone far enough. The cost-based model places too great an emphasis on mere economic cost; it does not count the social cost of failing to mete out significant punishment. What about the cost to victims of failing to prosecute with vigor? To that later argument I have but two words: William Petit. He is the surviving victim of a horrific home invasion in Cheshire, Connecticut, that left his wife and two daughters dead. The defendants have offered to plead guilty, but Dr. Petit, a physician, wants them dead. So the state seeks death at a cost many times that of simply incarcerating the men for the rest of their lives. I say let the men plead; if Dr. Petit still wants a public trial to show case his sorrow then let him sue civilly. No point, you say? The men are judgment proof? You've proven my point: Why is Connecticut bank-rolling this wasteful psychodrama? There is a reason Dr. Petit has the services of a public relations firm: he needs to keep us whipped up enough to do his killing for him.

I am in favor of a broad calculation of the social utility of punishment. Among those costs should be an assessment of the impact on the imprisoned person's family: the children left behind, the home-foreclosed upon, the spouse who is punished every bit as much as the person locked away. These folks are victims, too.

The United States imprisons a larger percentage of its population and for longer terms of imprisonment than any other Western democracy. We're doing something wrong here in the land of the free. A good way to fight over-criminalization is with a checkbook. Let the fact finders in the criminal justice systems -- juries at the time a decision of guilt or innocence is made, and judges at the time of sentencing -- know the cost of what they are doing. Odds are when these folks realize that they're wasting not just the lives of strangers but their own money, there will be fewer prosecutions and shorter sentences. I suspect we won't notice any great change in the quality of our lives when that happens.





Comments (2)
Posted on September 19, 2010 at 11:33 am by Windypundit
If you're going to do a broad-based social utility...
If you're going to do a broad-based social utility benefit-cost analysis, you have to remember that everybody counts, and everybody counts equally. The prosecutors want to include the victims, and you want to include the imprisoned person's family, but you're both leaving out someone who pays a very high price: The imprisoned person himself. People might say that he doesn't count because he caused the problem, but that just shows how easy it is to skew the analysis of social policy by deciding that some people don't matter. Everybody matters.

Posted on September 19, 2010 at 7:58 am by Anonymous
Thank you for some sanity, Mr. Pattis. I have a lo...
Thank you for some sanity, Mr. Pattis. I have a loved one awaiting a trial in a state other than Missouri. I can only hope and pray someone in that state wakes up and realizes what you're saying here is true. SO TRUE!
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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