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Should Sentencing Juries Consider Imprisonment Costs?

by Ed Lyon

Professor Michael Conklin recently released a law review article arguing the merits of allowing juries to consider imprisonment costs when they are deliberating sentences lengths, with the objective of lessoning mass incarceration. Conklin’s report is founded on and supported by dozens of statistical compilations, databases and statutes across the U.S., coupled with Conklin’s own survey.

The six states with bifurcated criminal trial schemes mentioned are Arkansas, Kentucky, Missouri, Oklahoma, Texas and Virginia. The study centers on Missouri because in 2010 it became the first state to provide incarceration costs in sentence advisory (pre-sentence investigation) reports. This “incarceration-­cost salience” (ICS) surprisingly resulted in a smaller prison population, lesser overall incarceration costs and lower recidivism rates. Conklin’s review posits furnishing this same data to sentencing juries would culminate in similar results.

Current judicial structures heavily favor mass incarceration. For instance, local jurisdictions bear only trial costs. Diversionary programs are wholly paid for by the local jurisdictions, therefore favoring incarcerations where costs are borne by the larger state government. When California restructured costs for juvenile incarceration shifted back to the counties in 1996, amounts counties began having to pay skyrocketed from $25 up to as much as $2,600 per juvenile monthly. While post-1996 arrest and conviction numbers remained static, sentence lengths “decreased dramatically.”

The more traditional sentencing factors of deterrence, public safety, just punishment and respect for the law provide a concrete foundation for the overall punishment scheme.

Additional arguments against ICS presentation to sentencing juries to help decrease mass incarceration were identified as politician’s fear of a “soft on crime” label, the prison industrial complex striving to maintain the status quo to perpetuate its existence and especially jurors’ inability to consider such complex formulae.

U.S. jurisprudence has historically relied on juries to determine truth between contradictory witnesses, DNA evidence, medical and psychiatric testimony—all areas of higher complexity than financial incarceration cost considerations. Legislators passing minimum sentencing laws on an ad hoc basis for crimes that have yet to occur makes much less sense than not allowing juries with first-hand knowledge of the crime that has occurred to be given incarceration cost figures to factor into their punishment deliberations.

Conklin points out “the purposes of incarceration-cost salience is not per se to reduce sentence lengths.” Rather, it is to make punishments more cost-effective. Possible benefits from ICS would be citizens possessing superior information on the costs of criminal justice, actual reductions in criminal justice costs, and lower recidivism rates. After juries are able to weigh the cumulative costs involved with capital convictions where the death penalty is assessed versus the cost of a life a sentence, there would likely be far fewer death penalties.

Survey results yielded decreases of 3.4, 3.3 and 2.4 percent reductions in sentence length for murder, embezzlement and heroin possession sentences when ICS figures were considered by prospective jurors. When figuring a national average of yearly incarceration costs of $40,000 for adult prisoners and $148,767 for juvenile prisoners, even these small reduction figures would make a gigantic difference in costs for a nation incarcerating over 2.3 million of its citizens. 

Source: “Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration,” by Michael Conklin, Criminal Justice Law Review

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