Sentencing guidelines spark debate

If a state advisory group gets its wish, fiscal concerns won’t be limited to business and personal finance – they’ll also factor into some decisions from the bench.

The Missouri Sentencing Advisory Commission, or, an 11-member commission comprising judges, lawyers, legislators and citizens, sets state sentencing guidelines for felony crimes.  

In August, the commission recommended that judges factor the cost of incarceration into sentencing for nonviolent felonies when other forms of punishment are an option and for crimes that have high rates of repeat offenders who return to prison.

The suggestion to look at costs came from some judges, said Missouri Supreme Court Judge Michael Wolff, who also is MOSAC chairman.

“It allows judges to look at recidivism, and ask what are the costs for the state and what are we getting for our money?”

Wolff said the recommendation for fiscal consideration used second-degree robbery as an example case, with a recommendation of either a five-year prison term with 3.9 years spent in prison and 1.9 years on parole, or enhanced probation that may include a monitoring device to regular probation in which the convicted reports to a probation officer.

The average rate of recidivism, or repeat criminal behavior, for someone convicted of second-degree robbery and sent to prison is 39 percent, while the rate for a person put on probation is 29 percent. The average cost of the prison sentence is pegged at $54,000, whereas enhanced probation costs an average of $1,800 a year, and regular probation averages $1,340 a year, Wolff
said.

According to the Missouri Department of Corrections, there were 30,580 people in the state prison system, with the average annual cost at $16,308 apiece.

Element of ‘great concern’
Weighing cost considerations when meting out punishment is relatively uncharted territory, and the suggestion to do so has sparked a debate in the legal community. According to a Sept. 10 New York Times article, no other state systematically delivers cost data to judges. An algorithm from MOSAC has been up and running since summer, and can be used to compute sentence costs, though since the guidelines are nonbinding, judges are not required to factor those into sentencing.

According to the New York Times article, an offender’s conviction code, criminal history and background can be input, and the program will provide a range of recommended sentences, statistical data about the likelihood of repeat offenses and price tags for the different options.

Greene County Prosecuting Attorney Darrell Moore is opposed to the idea that the cost of punishment should be factored into sentencing. And he’s not alone. The New York Times article notes that while the concept has found favor among some attorneys and fiscal conservatives, critics – and especially prosecutors – say it creates a risk of overlooking crime’s larger social costs.

“I have a great concern about it and how it reflects on crime,” Moore said. “I’ve seen people go on crime sprees and have a great economic impact on society, and I’m not sure if looking at the cost of sentencing really looks at the true impact on society.”

Factoring costs into sentencing boils down to two major arguments for the legal community, said Frank Bowman, a law professor and sentencing expert at the University of Missouri School of Law in Columbia.

“I see the argument that the cost of criminal sanctions should be within the power of the legislature,” Bowman said. “On the other hand, oftentimes, legislators have not been as intelligent as they should be about understanding the cost of trade-offs for imposing sentences.”

Bowman said that it may have been easy for the legislature to pass laws suggesting harsh punishments, but the judges are closer to the day-to-day realities of the justice system. “They see different kinds of defendants and may be in a better position to assess which defendants should be the beneficiaries of societal resources,” he added.

Average sentencing costs join an extensive list of information judges explore before imposing a sentence, including criminal history, education, drug use, employment status and family history.

Informed decisions
Financial costs of crime are typically represented in a victim’s impact statement, which already is given to judges prior to sentencing, said Tyson Martin, a partner with Catt, Cole & Martin LLC, a Springfield criminal defense law firm. Martin doesn’t see an issue with making judges aware of sentencing costs during that period as well.

“Ultimately, every judge is looking to do what’s right based on any given case,” he said. “I don’t know how having all of the information can be a bad thing. I don’t think it will override other factors,” added Martin, who also is chairman of the Springfield Metropolitan Bar Association’s criminal law committee.

While SMBA hasn’t taken an official position on the issue, President Brian Hamburg said it’s important to remember that costs do control jail space and criminal justice spending. Still, he’s confident that judges won’t use costs as an excuse not to punish those convicted of crimes, though it could change the nature of the punishment.

“I think it’s important for people to understand that judges will not do anything to reduce sentencing based on a cost consideration,” he said.

Moore, who also is concerned that cost would be factored in for repeat offenders, since typically, most first-time nonviolent offenders don’t get prison time.

“We could lose the value of probation if there is no threat of prison if they do not obey the law and reform,” said Moore.

He also wonders whether the guidelines will sit well with victims of some crimes classified as nonviolent.

“To say that burglary, especially first-degree, is nonviolent is ludicrous,” Moore said. “Anyone who has had a burglary occur can tell you that they feel their privacy has been violated and their home is violated.”

Like SMBA, The Missouri Bar hasn’t taken an official position on whether costs should be factored into sentencing. But President John Johnston said the organization’s criminal law committee is considering the issue, and the bar will take into account any committee recommendations.

“We haven’t yet heard from attorneys or heard any complaints about the recommendation,” Johnston said. “In this kind of an election year, I think many things get taken somewhat out of context and maybe emphasized more than intended.”

MOSAC’s Wolff said the point to the guidelines is making sure judges have all the information they need to make the best decisions for the community regarding sentencing.

“If 97 percent of offenders are eligible to return to the community, and most of them come back worse criminals, then maybe it is better to punish them in the community,” he said. 
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