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The price of sentencing people to prison

Why the judicial system needs a better cost-benefit analysis for sentencing

July 9, 2014 6:00AM ET

After more than three decades of state and federal legislation designed to be tough on crime, the United States is facing an unprecedented surge in its prison population. Among world nations, the U.S. houses a quarter of the world’s prisoners. We have more people in prison than any other country, dwarfing even China. One in 100 Americans is currently behind bars.

In large, diverse states such as California, prisons are under exceptional stress. The 33 in-state prisons managed by the California Department of Corrections and Rehabilitation (CDCR) have been suffering from overcrowding and inadequate medical care, largely because of an exploding inmate population due to draconian laws against drug and violent crimes passed in the 1980s and ’90s. Despite the images put forth by the media, violence has been falling steadily by most metrics, Americans are less violent than they were 20 years ago, and California is experiencing its lowest crime rate since the 1960s. But the prison population continues to grow at least in part because the judicial system simply doesn’t take into account the costs of sending someone to prison. Instead, judges and juries operate under the popular myth that locking people up is the best way to prevent violence.

In particular, California’s prison system is large and unwieldy, and as a result, courts have recognized that greater oversight is necessary. In 2011, when Gov. Jerry Brown announced his plans to reduce the prison population to comply with a U.S. Supreme Court ruling, there were over 160,000 inmates in the state’s prisons. That number shrank to 133,000, thanks in part to some overdue reforms to sentencing laws, but estimates show that the number is growing again, contrary to the governor’s promise. Annual correctional costs have risen $2 billion since 2011, and local counties’ costs have been rising too. The overcrowding that plagues the state prisons has cascaded to the local jails. Counties such as Kings County in the Central Valley have been forced to triple-bunk their inmates.

The costs of mass incarceration are astounding. California spends an average of $49,000 per year to house one inmate in state prison. By comparison, a minimum wage salary amounts to less than $20,000 a year before taxes, and California spends just over $9,000 per public school student per academic year, which is below the national average. The prison figure does not include the price of inmates housed in specialized mental health units or security housing units — more restrictive facilities where inmates are closely supervised — which can cost over $100,000 per inmate per year. Plus the prison population is growing older. Human Rights Watch estimates that the number of inmates over 55 increased 500 percent from 1990 to 2009. In California, inmates 55 or older account for 38 percent of the medical bed resources but make up only 7 percent of the prison population. Keeping all these people in prison in California alone costs taxpayers more than $7 billion dollars a year. It’s clear that the cost of prisons simply isn’t going away, and in fact, we can anticipate that it will only get worse.

Ill communication

A knee-jerk reaction might be to blame the correctional authorities, such as the CDCR. But the department is simply responding to demands for more prison space and better medical facilities, many of which come from recent court decisions, forcing the it to spend more money. The CDCR does not hand out prison sentences; that happens in the judicial system.

The problem: No one is solely responsible for offenders as they move through the judicial system into the prison system (and then, one day, back out into the community). In fact, there’s very little communication between the judicial system and the prison system when it comes to the fates of individuals. The two systems operate in separate spheres, under separate budgets and separate mandates. One group makes decisions on how to punish based on guilt, and the other decides how the punishment gets meted out in reality. And once judges and juries make determinations of guilt, they are often hamstrung by mandatory sentencing requirements, which may mean that longer prison terms are meted out than is useful.

The people who decide the sentences, moreover, don’t always know or consider any of the costs involved. Maybe they should.

The people who decide the sentences, moreover, don’t always know or consider any of the costs involved. But maybe they should.

There are some states that have tried implementing cost-benefit analyses in their sentencing calculations. Missouri was the first state to suggest that judges should have access to the costs of incarceration as a resource to use in determining sentences. Three years ago, Missouri made information about the costs of incarceration available to its judges, but no one was required to consider cost in sentencing. Interestingly, this provision was passed at the request of Missouri’s judges, many of whom wanted to be able to consider the data when making decisions.

Just a few months ago, Vermont failed to pass a bill that would have similarly required judges to consider costs when sentencing. This bill was initiated by lawmakers after the costs of incarceration in Vermont jumped 80 percent in 10 years. Unlike in Missouri, judges in Vermont would have been required to consider cost as a factor in their decisions — along with other things, such as defendants’ character. The Vermont Corrections Commissioner was quoted as being in favor of the bill because “it shares the burden a little bit” between the judiciary and the correctional department.

People who object to cost-consideration provisions — they tend to be judges or district attorneys — believe that considering costs in some way taints the sentencing decision. These critics argue that sentencing isn’t a mathematical formula. Such an argument implies that there’s something fundamentally moral at risk that shouldn’t be combined with cost-benefit analysis. But in fact, judges take all sorts of factors into account when making sentencing or parole decisions. They consider the risk of reoffending, defendants’ character and their records, and many states accept victim impact statements. Cost as a factor is really no different and simply acknowledges that all decisions to incarcerate, parole or fine come with price tags attached.

Cost-benefit analysis

Judge Richard Posner of the 7th Circuit Court of Appeals recently made a similar argument in a discussion of the application of cost-benefit analysis to extremely long sentences. He pointed out that very long prison sentences mean that a defendant will likely not exit the prison system until he is elderly (if at all). On the other hand, if a defendant is released while he is still able to work, then the net benefit to society is higher. Posner stated:

The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one. An impressive body of economic research … finds for example that forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates.

In other words, Posner suggests considering the entire body of evidence, including the decreased likelihood of elderly people committing criminal acts and the very high cost of incarcerating people for a very long time.

As prison costs continue to skyrocket, and prison populations do not decline despite best efforts, policymakers and judges will have to reevaluate what it means to determine someone’s guilt, as well as the meaning behind incarceration. The official mandate behind correctional departments like the CDCR is public safety, not retributive punishment. But public safety can surely be achieved without costing billions of dollars and hundred of thousands of lost lives. 

Jessica Pishko graduated with a J.D. from Harvard Law School and received an M.F.A. from Columbia University. She practiced corporate law, specializing in securities fraud, and represented death penalty clients and victims of domestic abuse pro bono. 

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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