“Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?”

The title of this post is the title of this new Mother Jones piece with this subheadline: “A handful of reformist DAs think so. But they’re meeting plenty of resistance.”  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week….

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.