In the 1980s, Americans reacted to a rising crime rate by demanding tougher law enforcement.
Federal, state and city governments passed longer sentences for some crimes.
In some states, three-strike laws made life sentences compulsory for repeat offenders. The nation also intensified its war on drugs with prison and jail time for many first-time offenders.
According to a June report by the Center for Economic Policy and Research, tougher sentencing laws have resulted in the U.S. imprisoning a higher percentage of its population than any other country. Between 1980 and 2008, imprisonments increased by 240 percent. U.S. jails and prisons hold 2.3 million inmates.
The high imprisonment rate causes overcrowding in prisons and jails and costly expenses for inmate care. Federal, state, and local governments spend $78 billion a year keeping criminals locked up.
The state of Missouri believes it found a solution to the problem by using cost-benefit analyses. Before a judge passes sentence on a nonviolent offender, the judge considers the cost of imprisoning the offender compared with placing the offender on probation.
A recent New York Times study compared imprisonment and probation costs. A three-year prison sentence costs the government $37,000, while three years of government supervised probation costs only $6,770.
By giving judges access to comparative imprisonment and probation costs, Missouri officials encourage judges to place more nonviolent offenders on probation.
An interesting coalition of criminal defense lawyers, prison reform activists and fiscal conservatives support the measure, especially since many judges imprison nonviolent offenders for using or selling drugs. Some people see the so-called war on drugs as a failure. They want the government to decriminalize some drugs, such as marijuana, and tax the sales of previously illegal drugs to raise much needed revenue.
Although Missouri’s plan seems like a sensible solution to costly overcrowded prisons and jails, it raises serious ethics questions. For example, it forces judges to act as legislators. State executives and legislators bear the responsibility of preparing and passing state budgets.
If tough sentencing laws financially burden the state, legislators should solve the problem. Reform the laws, if that is the right thing to do. Find ways to manage prisons and jails more efficiently or appropriate more money for them. Consider and debate the problem openly with public input.
Asking judges to consider saving the state money while dispensing justice is a cowardly way for state legislators to avoid solving a serious financial problem.
Also, if the state uses cost-benefit analyses in placing more criminals on probation, what is the cost to the public? Is it possible to quantify the public’s fear and outrage in judges releasing more offenders to save money?
Will cost-benefit analyses demoralize law enforcement officers? Why arrest an offender, if you know it is too costly to jail him? Will the plan embolden criminals who know they are less likely to get jail time under the Missouri plan?
Do cost-benefit analyses apply equally to every nonviolent criminal? The cost of imprisoning a thief may be as costly as imprisoning a pornographer of children, but do both deserve probation if it saves the state money?
Finally, cost-benefit analyses trivialize justice. Instead of the scales of justice weighing evidence of right and wrong, it also now weighs dollars and cents when it comes to punishment.
John D. Copeland, J.D., LL.M., Ed.D., is an executive in residence at The Soderquist Center for Leadership and Ethics and a retired professor of business at John Brown University in Arkansas. He’s also a Kallman executive fellow at the Center for Business Ethics at Bentley University in Waltham, Mass. He can be reached at email@example.com.