Cost containment, sentencing and perverse incentives

Yesterday, the Judicial Conference of the United States issued a press release about cost containment as our national government lurches toward yet another October 1 shut-down date. Among other things, that press release contained the following little nugget:

Acting on the recommendation of its Criminal Law Committee, the Conference agreed to seek legislation, such as the Justice Safety Valve Act of 2013 (S. 619), which is designed to restore judges’ sentencing discretion and avoid the costs associated with mandatory minimum sentences. According to the U.S. Sentencing Commission, the average term of supervised release of an offender subject to a mandatory minimum sentence is 52 months, compared to 35 months for an offender who was not subject to a mandatory minimum. The cost of supervising an offender for one month is approximately $279.

I find this statement utterly remarkable. Let’s be clear on what the statement really means. It means that judges should explicitly consider preserving the federal judiciary’s budget by reducing the time that offenders spend on supervision after they get out of prison.

If a sentencing judge is supposed to consider what’s best for the federal judiciary’s bottom-line when sentencing people, haven’t we created a truly twisted and perverse incentive for judges to look out for their own institutional best interests rather than looking out for the best interests of the offender and the well-being of the public?


PS Thanks to Elaine Mittleman for her thoughts on the subject of costs. To be clear, however, Elaine has no responsibility for the thrust of this post.

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