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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

September 20, 2010

Prison and the Tragedy of the Commons

On Sunday, the New York Times reported that, in Missouri, judges are now given estimates of the cost of potential sentences before they make their sentencing decisions. Missouri Tells Judges Cost of Sentences . As someone who was indoctrinated with economics for six of my formative years, looking at the cost of a decision seems not merely reasonable, but the only responsible way to make a thoughtful decision.

As trial judges in Wisconsin have tremendous discretion in setting the length of a sentence, and that discretion has broadened over the last approximately 20 years, the consideration of the cost of a sentence is especially important. First, sentences are reviewed under the most deferential appellate standard—the erroneous exercise of discretion—resulting in little appellate oversight of sentences.

Secondly, over the last twenty years the legislature has increased the maximum penalties for most crimes giving judges a wide range of penalties for most crimes. For example, at the extreme, for a class B felony, a judge can sentence someone to a period of initial confinement, without the possibility of parole review, somewhere between zero days and forty years. Based on my experience, in the past, the legislative maximum had more often provided the cap on sentences. I can remember when prosecutors were always concerned about getting convictions for multiple crimes so that the maximum possible penalty could be increased with consecutive sentences.

Now, obtaining multiple convictions is rarely a concern as a conviction for one crime, with the higher penalties, is often sufficient to provide an appropriate sentence range for a defendant. Judges are rarely constrained by legislative maximums, as they are sufficiently high. The effect of legislatively increasing the maximum penalties has been shifting the responsibility of setting the effective (as opposed to the legal) maximum penalty from the legislature to the judiciary. On top of the longer sentence potential, we also have truth-in-sentencing, where, with some exceptions, judges decide when a defendant can be released from prison at the time of sentence. All of which makes the judge’s initial sentencing decision all that more important and which argues for the use of consideration of the cost of a sentence.

Incentive and cost mismatches occur with our sentencing. A prison sentence, for example, has the indirect cost to the defendant in loss of freedom, lost wages, and lost contribution to family and society, along with the direct cost of incarceration (the cost being considered by Missouri judges). Those costs are considered against the benefits of locking someone up. When a judge sentences someone to prison, he or she has decided to spend somewhere in the range of $25,000 per year of state taxpayer’s money for each year of incarceration. A problem arises from mismatched economic incentives.

In Wisconsin, judges are elected by citizens of each county; whereas the costs are born by citizens of the State of Wisconsin as a whole—most who will never be able to vote for or against the judge. Only a very small portion of the costs of incarceration will be paid by the taxpayers of the judge’s county whereas most of the benefits of incarceration, in terms of community safety and retribution, will accrue to the residents of the judge’s county as it is likely that the defendant and the victims of the crime came from the judge’s county. Judge Richard Posner has written that elected judges, because they will be subject to a performance review in the form of a re-election requirement, have to be somewhat sensitive to the electorate when making decisions.[i] (The elected judges may also more closely match the values of the electorate than appointed judges and make decisions that are more in line with this common value system.)

While judges are electorally held responsible for considering the benefits and the indirect costs to the defendant and his/her family, because most of the direct cost of incarceration is not born by citizens of the judge’s county, judges are not electorally held responsible for considering or not considering the direct cost of incarceration.

This mismatch of the signals of the benefits and cost of incarceration create a negative economic externality—a cost born by someone other than the decision maker. Prisons become the commons—the place in the village where everyone’s cows can graze without cost to the individual cow herder resulting in the pasture being overgrazed. Everyone’s cows starve. We have the tragedy of the commons.[ii] By not even considering costs of incarceration at sentencing, and not being held electorally accountable for these costs, the prison system becomes the commons. Are our overcrowded prisons, partially the result of the tragedy of the commons?

Like many people, I am concerned about our society being able to provide needed government services at a cost the citizenry are willing and able to pay. Would the system be better if criminal sentencing would be handled like juvenile delinquencies, or mental commitments, where the county receives a block of money to spend on corrections, and when people are sent to prison, that money comes from the county coffers? Would sentences be different if judges would have to justify spending county dollars for incarceration? I think an explicit consideration of the costs of a sentence is appropriate.

Although a fair and just sentence is much more than a straight economic decision, economics will always provide a tether as to what a society can or cannot do. That maxim has held for all societies in all ages. We in the criminal justice system ignore it at our peril.

[i] Posner, Richard A., (2008) “How Judges Think”, Harvard University Press, p. 135.

[ii] See Hardin, Garrett (1968) "The Tragedy of the Commons", Science, Vol. 162, No. 3859 pp. 1243-1248

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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