Mark D. White
Recently, it was reported that the state of Missouri started providing cost estimates of various punishments to judges during the sentencing phase of criminal trials. Of course, this set off a firestorm of controversy regarding the appropriate role (if any) that the financial cost of punishment—particularly imprisonment—does or should play in a judge’s decision-making. Those who follow the economic approach to law would see nothing untoward in this; to that way of thinking, monetary costs are just one element of the cost-benefit analysis that informs every legal decision, including optimal sentencing. If prison costs rise, then judges should impose imprisonment less often (or to a lesser degree), even though that may reduce deterrence and increase costs (by a lesser amount) elsewhere, as long as total welfare in society is maximized.
But those who hold to a more traditional view of justice may recoil at this reduction of legal decision-making to dollars and cents, especially in an area such as criminal law which relies on concepts like wrong, guilt, and desert, claiming instead that “justice has no price.” And I would agree that justice has no price—in an ideal world. In such a world, every criminal offender would be apprehended, all defendants would be tried in court before a jury, and every convicted criminal would receive his deserved punishment. What that person “deserves” is subject to debate, of course, but it would not be determined by “mere” monetary costs, but rather some version of retributive justice that demands punishment in proportion to one’s crime.
Alas, we do not live in an ideal world. Ours is a world of scarce resources, and has long been so; resource constraints did not emerge fresh with the current economic malaise. If society were to apprehend, prosecute, and punish every criminal offender according to the severity of his crime, we would have no resources remaining for education, national defense, or any other goals that people may feel government should pursue. As every introductory economic student learns on the first day of class, scarcity makes hard choices necessary, and the hardest ones occur when principles—such as justice—must be compromised.
Because of scarcity of resources, we must balance the principle of just punishment with the other principles and goals that society regard as important (and that we elect our representatives to promote). We can certainly prioritize these principles and goals, but we have to pursue them simultaneously, and somehow allocate our limited resources among them. Of course, people responsible for budgeting, from the smallest municipality to the entire country, face that problem every day. But even once such allocations are made, the problem does not end; rather, it is shifted to the next level of decision-making down the line, including to those responsible for making decisions in the criminal justice system. And among these decision-makers are judges, who must balance legal principles in their courtrooms every day, from seemingly minor evidentiary rulings to sentencing decisions of potentially life-shattering proportion.
But are costs—or consequences in general—an appropriate factor in balancing principles of justice? Consider the lone police officer who witnesses two persons in the process of a home invasion. Once they notice her, each suspect runs in a different direction. The officer knows both should be apprehended, since both are equally suspect of wrongdoing, but she can only catch one. Which one? Perhaps she recognizes one suspect from previous warrants, or she thinks he may be key to a larger ongoing investigation. Maybe the state would have a better case against one, or he may simply be slower and therefore easier to catch. Any way she chooses, a choice must be made, and if the two suspects are equally deserving of apprehension, then a focus on justice is not going to help make the decision—but consequences might. A prosecutor may make a similar decision with respect to two cases of equal merit in terms of justice, but one of which will be much more costly in terms of time, money, and resources. If considerations of justice do not make the choice clear, costs might.
Judges are no less immune to these tragic compromises than police officers and prosecutors. It does no good to ignore the fact that justice does have a price—in a world of scarcity, it must. Apprehension, prosecution, and punishment of criminals all take resources from other important needs and goals, so their costs do need to be considered, both externally (in comparison to other societal goals) as well as internally (within the criminal justice system itself). But ideally, costs will be a secondary consideration only, a way to help make tough decisions when balancing principles of justice, and not the primary concern.
(For more on balancing principles within criminal justice, see the earlier post here.)
:
(Oxford University Press):
, "Retributivism in a World of Scarcity" (pre-print draft available at SSRN