“Justice isn’t subject to a mathematical formula.”
— Robert P. McCulloch, St. Louis County prosecutor
“We live in a what’s-it-going-to-cost society now.”
— Judge Gary Oxenhandler, 13th Judicial Circuit, Missouri
Summer is about to give way to fall and with that transition cooler weather is upon us. You might respond to that cooler weather by putting on a sweater. You might react by lighting a fire in your fireplace. You might even awaken the furnace from its summer hibernation. Your decision on which of those things to do might well be driven by the cost involved with each. The sweater costs little after its initial purchase. The fire carries the cost of the wood and an occasional chimney sweep. The furnace might need to be serviced and its use would certainly drive up your gas and/or electric bill.
Everything we do carries some cost with it in time, energy or money, and we constantly go through cost-benefit analyses to make decisions about how to handle things. While the judicial system subscribes first and foremost to the more high-minded principles of justice and equity, an understanding of the costs involved is a necessary endeavor in a system funded by taxation. States are constantly tinkering with how to handle the costs of their systems of criminal justice and civil litigation.
Judges in criminal cases are given all sorts of information at the time that they sentence criminal defendants. In most cases, the judges have access to the defendant’s prior criminal history and in many cases they have a pre-sentence investigation, a sentencing memorandum from one or both sides and other information provided directly by the parties at the sentencing hearing. In federal cases, judges also have a calculation of how much time a defendant should be sentenced to based upon a complex set of federal sentencing guidelines.
In some states, such as Missouri, criminal court judges also get one additional piece of information. The state’s sentencing advisory commission requires that judges be provided with an estimate of how much it will cost to house a defendant for the length of a prison stay as opposed to supervised probation. When enacted, a decade ago, the policy elicited some negative feedback from judges and prosecutors. It has also drawn praise from defense lawyers and government watchdogs on opposite extremes of the political spectrum.
The practice of providing that kind of information or otherwise discouraging the use of more expensive alternatives in the judicial system is not unknown, nor is it foreign to Ohio. Status reports provided to courts in children services cases sometimes provide an update on the length of time that a child has been in foster care and the total cost of that care.
Similarly, the juvenile court system in Ohio rewards courts for not sending juveniles to Ohio’s Department of Youth Services, the juvenile prison system, and punishes them financially for committing them there. That system, known as RECLAIM, has been in effect since the 1990s and has succeeded in significantly reducing the number of juveniles who are confined for felony offenses throughout the state. Instead of those monies being spent to house juveniles in a lock-up, the money is instead sent to individual counties to be used for staffing and programming that are intended to keep the child in the community, including treatment programs and probation departments. But the system also recognizes the public safety aspect of the juvenile justice system, and designates certain offenses as “safety beds,” for which a court is not charged bed days — a recognition that some offenses are serious enough that public safety requires a period of incarceration.
As happens from time to time, there is now a push to modify that RECLAIM formula. The sharp uptick in carjackings in major metropolitan areas has led the Ohio Prosecuting Attorneys Association to propose including aggravated robbery (the charge that results from most carjacking offenses) and aggravated burglary to the list of safety bed offenses. The proposal will go through extensive review to determine if it is necessary, how much it would cost, whether there are any other ways to achieve the same results, etc. But the conversation — the constant attempt the review and ensure the best possible rules are in place — is a healthy one to have.
As one Missouri judge, Gary Oxenhandler, noted, “(Cost) is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing. But it is almost foolish not to look at it.” As budgets shrink, courts will more and more often be presented with the challenge of protecting the public and spending less money at the same time.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
