In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for sentencing judges also should include the costs of various possible sentences. (1) Thus, for example, the pre-sentencing report for a person charged with second degree robbery would include not only the severity of the crime (in this case, "medium") and the prior conviction history of the offender, but also something resembling the following:
Mitigating Sentence: Probation-5 years probation [at] $1364 per
year. Total cost = $6770
Presumptive Sentence: Community Structured Sentence-5 years
enhanced probation [at] $1792 per year. Total Cost = $8960
Aggravating Sentence: Prison-5-years prison [term] assuming
expected actual time served of 62% = 3.1 years in prison [at]
$16,823 per year + remaining sentence of 1.9 years on parole [at]
$1354. ... Total Cost = $54,724[.] (2)
In other words, the report would present the judge with various types of sentences and the price tag associated with each sentence. The proposed reform would make-and seems intended to make-the cost of each sentence a salient factor for the judge to consider.
The reform was controversial, making local and national headlines. (3) Supporters of the inclusion of cost figures claimed that it was an important cost-cutting move, and, at worst, just another piece of information for the judge to consider. (4) Critics of the measure argued that sentencing was not about cost but about deciding what sentence was appropriate for the particular offender. (5) The allocation of social resources, they reasoned, was a job for the legislature, not something that judges should be worrying about. (6) Specifically, critics raised concerns about how to accurately and adequately calculate the social cost of putting an offender in prison and whether judges also should take into account the costs of crimes that those offenders put on probation, rather than imprisoned, might commit. (7) It might be cheaper to put someone on probation rather than imprison him, but if the person on probation goes on to commit a crime, there is certainly a cost to that. (8)
The debate over the inclusion of cost figures in sentencing reports is part of the larger question of what factors are appropriate for a judge to consider when sentencing. (9) Should a judge include considerations of the social cost of certain forms of punishment when deciding a sentence, or does that mean the sentence is no longer tailored to the individualized facts of the crime and the criminal? The question of including sentence cost also raises an issue central to modern retributivist theory: to what extent can the criminal justice system and the various parties in it consider societal consequences in determining a sentence? (10) Should the right punishment be given to the offender, even if important social programs remain unfunded? (11)
Indeed, the decision to include cost as a salient sentencing factor rubs against the retributivist intuition that judges should decide sentences based solely on the crime committed and the conduct of the offender.12 The intuition sometimes has a corollary: while judges are restricted in whether they can consider cost, legislatures are not.13 Indeed, legislatures should consider the costs of various sentences when passing sentencing legislation.
This Article probes this intuition and offers a qualified defense of it. That is, the Article defends the critics of the Missouri sentencing reform. Part II spells out the intuition in more detail and attempts to give it a theoretical basis. The Missouri reform opponents' position reflects H. L. A. Hart's famous theory of punishment (and also a similar theory John Rawls present ed (14)), which proposed a division of labor between judges and the legislature. (15) Under this theory, consequences justify punishment on the institutional level, but the particular facts of a given case dictate the individual's punishment. …