"Cost as a Sentencing Factor": A Response
Milyo, Jeff, Missouri Law Review
Professor Chad Flanders offers a normative theoretical critique of including costs of punishment in Sentence Advisory Reports (SARs) that the Missouri Sentencing Advisory Commission (MOSAC) produces. (1) This approach provides a useful lens for understanding divergent opinions on the practice of including cost information in SARs and provides a consistent logical framework for understanding whether this practice squares with more fundamental principles of criminal punishment. In this Response, I complement the normative analysis in the main Article with several observations from a different analytical perspective.
As an empirical social scientist, my analytical approach is based on positive analysis. I am less concerned with how people should be motivated and more concerned about how people actually behave. So without diminishing or contradicting Flanders's analysis, I wish to recast it as a positive analysis. Part II summarizes the main Article. (2) Then, Part III sketches a gametheoretic perspective on MOSAC and SARs. (3) Next, Part IV describes MOSAC's repeated tendency to overstate the social costs of longer prison sentences and thereby conflict with voter and legislator preferences. (4) Finally, Part V discusses the theoretical and practical effect of including cost information in SARs. (5)
II. A Brief Recap of Flanders' Thesis
The fundamental tension between the retributivist and consequentialist motives in sentencing policy identified by Flanders is a useful lens for understanding the controversy over including sentencing costs in SARs. (6) The notion that highlighting the costs of prison versus alternative (and less punitive) sentences offends those commentators who focus on retribution as the purpose of sentencing seems right on target. (7) Flanders then employs these dueling perspectives to motivate what I agree is a conventional and overly simplistic "ideal" division of labor in sentencing policy: that the legislature should be consequentialist in setting sentencing parameters for judges while judges should be retributivist in administering uniform punishments within those parameters. (8) Flanders concludes by offering a more sophisticated view by way of analogy to overlapping circles, arguing that judges should focus more on the core concerns of retributive justice while legislators stand back and take in the larger picture. (9) Given this conclusion, costs of prison versus probation are not of primary relevance to judges and, in Flanders's view, should not be part of SARs. (10)
III. A Game Theoretic Perspective on MOSAC and SARs
In general, sentencing policy has multiple goals, including retribution, cost-effectiveness, rehabilitation, and deterrence. The latter three goals fall under consequentialist motives in Flanders's analysis. (11) However, rather than focusing on which goals should motivate different actors, (12) I posit that voters, legislators, judges, and MOSAC all seek to maximize their own utility, which is in turn a function of the consequentialist goals. However, each of these actors also derives utility from other sources; for example, legislators face frequent reelection so they also must place weight on the opinions of their constituents in order to retain office (or at least more weight than judges and MOSAC). Further, each of these actors has different access to information; for example, voters probably are least informed about the costs and benefits of alternative sentencing policies. Thus voters, legislators, judges, and MOSAC likely may have differing preferences over sentencing policy.
Given this framework, sentencing policy can be seen as the product of a complex game among voters, legislators, judges, and MOSAC. This game has rules (the state constitution) and within the rules each actor seeks to maximize its own utility. And while a full treatment of such a game is beyond the scope of this Response, some insights may emerge from this outline of the sentencing game. …