In an earlier post, I suggested that efforts at cost containment at the federal level might create a perverse incentive for federal judges. That is, to preserve the balance sheet for the federal judiciary, judges might select shorter supervised release terms in an effort to save money. This is because, unlike the cost of incarceration, the federal judiciary is required to undertake the costs of supervised release.
After the post went up, Magistrate Judge Andrew Wistrich called to my attention a fascinating law review article that he and his coauthors recently published in the UCLA law review. Among other things, these highly regarded researchers attempt to get at what happens to the length of sentences when sentencing judges are given detailed cost information and explicitly directed by the law to consider that cost information at sentencing. See Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie, Altering Attention in Adjudication, 60 UCLA L.REV.1586, 1591-1597 (2013). (Jeffrey J. Rachlinski is a professor of law at Cornell Law School; Andrew J. Wistrich is a magistrate judge in the U.S. District Court for the Central District of California; and Chris Guthrie is the Dean of Vanderbilt Law School.)
Using Missouri law as the predicate, where judges are explicitly tasked with considering the cost of incarceration when choosing a sentence, the authors set up two scenarios with each scenario having three different cost-of-incarceration parameters.Thus:
[W]e asked 133 judges attending the annual meeting of the American Judges Association in September 2010 to sentence a hypothetical defendant identified as“Hector Campbell, an unemployed drummer.” The judges were split into two groups—one received a scenario charging Hector with possession of cocaine, while the second received a scenario charging Hector with rape.
Id. at 1596.
What do you think the researchers found? I won’t spoil the ending, but you will be surprised. More importantly, you will be intrigued.