SO WHAT SHOULD A JUDGE PROPERLY THINK ABOUT WHEN SENTENCING DEFENDANTS?

posted by Judge_Burke @ 16:25 PM
September 13, 2011

SO WHAT SHOULD A JUDGE PROPERLY THINK ABOUT WHEN SENTENCING DEFENDANTS? 

There is an interesting paper that was just published by   Professor Chad Flanders available via SSRN.  (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1920274) Here is the abstract:

      In sentencing offenders, should judges take into account the different costs of possible punishments?  In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year).   Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.  This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing.  Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences.  Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.

 THE VIEW POINT ABOUT SENTENCING IS NOT JUST ACADEMIC

 Judge Michael Manners is a long time member of the American Judges Association.  His observation is

 As a judge who regularly sentences defendants in Missouri, the purpose of the guidelines provided by the Missouri Sentencing Commission is to give us information that may be useful to a judge who is trying to figure out the appropriate disposition of a case.  The guidelines are not mandatory, and judges are free to give them the weight they deserve.  In that context, I believe the fiscal impact of a sentencing decision is one piece of information, among many others, that I may find useful in determining the appropriate sentence.  We have an obligation to be responsible stewards of the public purse, and with the fiscal crisis our state faces, I think it would be irresponsible to never consider the cost to our taxpayers of what we do.  In cases involving violent crimes, I give cost no weight; I am far more concerned about the impact of the crime on the victim and the danger to the community posed by violent criminals.  But what about, say, people convicted of possessing (but not selling) drugs?

If a five-year sentence costs the taxpayers $85,000, versus probation which costs the taxpayers$8,500, should we not at least consider cost, along with all other pertinent factors, in deciding what to do?

 Reasonable minds can and do differ among judges about whether you should consider cost or how much a judge should consider available space in a jail or prison.  Taken to the extreme if judges do not consider cost or capacity you end up in the situation like California where the United States Supreme Court ordered the potential release of thousands of inmates because of overcrowding.  http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

 PRISON OVERCROWDING IS SOMETHING JUDGES WILL NOW HAVE TO THINK ABOUT

This is the link to the United States Supreme Court decision on California’s prison over-crowding. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

For years judges have debated how much should they think about prison or jail capacity when sentencing. The United States Supreme Court decision in the California prison overcrowding case at least suggests that we do need to be very conscious about prison or jail capacity.

MORE ON THE RIGHT TO CONFRONTATION COMING THIS FALL                                       

Williams v. Illinois

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). : The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case.

http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf 
 

 


3 Responses to “SO WHAT SHOULD A JUDGE PROPERLY THINK ABOUT WHEN SENTENCING DEFENDANTS?”

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