• The price of justice
    January 24,2013

    Sen. Richard Sears is trying to make a point. A bill on sentencing policy that he is promoting would require judges to take into account the cost of incarceration when deciding a sentence.

    It is a good point, but a bad idea. Mixing up money with justice would undermine the credibility of the courts and foster cynicism on the part of the public. Judges are capable of making up their minds without reminders about the financial implications of their decisions.

    Nevertheless, the cost of corrections remains an onerous burden to the state, and there is good reason for everyone, judges included, to be aware of it. Most judges probably are aware of it, even if they donít know precise numbers.

    Sears argued that judges should know what a 20-year sentence will cost: At $45,000 a year, it would add up to about $900,000. Thus, 10 inmates serving 20-year sentences burden the state with a 20-year cost of $9 million. The question is whether it is appropriate for the Legislature to force judges to think about costs as a factor to offset, for example, the severity of the crime or the background of the defendant. In fact, it is not the judgeís job to manage the stateís corrections budget nor to advance state budget goals. That is Searsí job and the job of other legislators who set state corrections policy.

    The job of judges is to weigh numerous factors relating to the crime and to consider the law in fashioning a sentence. Only after sentences are fairly imposed is it proper to consider the costs. If the aggregate cost is becoming a problem, then maybe itís time to look at sentencing policy and to ask whether incarceration is always the best solution.

    Thatís where we are present. There is a movement afoot to address the galloping costs of corrections by reducing sentences or using alternatives to prison time. Drug courts and restorative justice are increasing their reach. These steer defendants toward treatment programs or community-based restorative programs that address the harm incurred by the victim and call for community service from the defendant.

    When these work, they serve the purpose of correcting the harm done to the community and correcting the harm the defendant is doing to him or herself. They also save sizable sums in the corrections budget.

    Adjusting the range of sentences for crimes and expanding the use of nonjail penalties is the best way to address the problem of cost. Legislators ought to take on that responsibility without shifting it to the judges.

    Defender General Matt Valerio, whose office defends most criminal defendants in Vermont, has sought to introduce the issue of cost as judges consider sentencing, and itís easy to see why: Cost is a factor that would diminish jail time for convicted criminals. But Valerioís argument is more appropriate before a legislative committee than at a sentencing conference in a courtroom.

    In fact, trends in sentencing ought to be seen as symptoms of policies and social conditions. A nation overpopulated with prisons is doing something wrong, and it is not necessarily the judgesí fault. If judges are instructed to lock up everyone with a joint in his pocket, we will have a problem. The problem is not with the judges but with the instructions.

    Searsí idea about requiring judges to consider costs falls into the category of bills that might be called thought control. There have been others, such as proposals from opponents of abortion requiring doctors to give information to women that might discourage abortions. Force-fed advice is not the best way to make a point.

    Already the high cost of our prisons is leading to changes in sentencing and in the kind of remedies defendants are facing. That is a good thing. Judges would no doubt be happy to keep nonviolent defendants out of jail if they had a good alternative. It is the job of the Legislature to give them alternatives.

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