For Punishment, Do Costs Count?

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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In my previous post, I discussed some of the fascinating results from the recent Marquette University Law School Poll, in which about 700 Wisconsin residents were asked various questions about crime and punishment. In this post, I’ll consider what the Poll results have to say about a crucial question for sentencing policy and politics: do costs matter, or are the interests served by punishment of such overriding social importance that expense is no object at sentencing?

This question is related to another question I raised in the previous post: is punishment valued more in instrumental or symbolic terms? If people look to punishment primarily as a way to decrease crime and increase public safety (the instrumental approach), then costs seem to have a natural place in the equation. As much as we value our safety, there are always limits to what we are willing to spend to protect ourselves. Few of us hire body guards, or purchase bulletproof vests, or build panic rooms in our homes — the small reductions in risk that we would enjoy simply do not seem worth the cost and inconvenience, and there seems nothing odd about thinking of risk in these sorts of cost-benefit terms. But if punishment is instead viewed in symbolic terms — as making a statement about who we are as a people and what our deepest moral values are — then cost considerations seem out of place. It would make us uncomfortable to say, “X is the right thing to do, but I’m not going to do it because it is too expensive.”

The Poll did not ask the big philosophical question about costs directly, but several questions seem to get at it indirectly. The answers suggest some real ambivalence and division in public attitudes. 

For instance, consider question 26e, in which respondents were asked whether they agree with the statement, “Wisconsin spends too much on prisons.” About half (49%) agreed, thereby implicitly indicating that cost is a relevant consideration for sentencing policy. A little less than one-third (29%) disagreed. That answer may indicate that a respondent does not believe that cost is relevant, or it may instead indicate that the respondent is convinced that we are getting our money’s worth. Given the extraodinary amount that we are spending on corrections as a state (more than twice as much per capita as Minnesota, despite closely similar crime rates), my instincts are that the “disagrees” probably reflect “cost is no object” thinking more than instrumental cost-benefit balancing. In any event, it is also interesting to note the high number of “don’t know” responses to this question (21%) — out of the 19 crime and punishment questions in the survey, only one generated more “don’t knows.” This seems to indicate an unusually high level of public ambivalence, which may reflect uncertainty over the basic question of whether cost is even an appropriate criterion for punishment.

Now take a look at 26f: “It is usually a waste of money to send nonviolent criminals to prison.” Like 26e, the implicit premise of the statement is that costs do count. Here, we see a slightly lower number of “agrees,” 41%. The “disagrees,” much higher at 50%, may indicate either a rejection of the “costs count” premise or a belief that incarceration of the nonviolent is actually cost-benefit justified. Again, given the high cost and low public-safety benefit of incarcerating nonviolent offenders, my instincts are that the “disagrees” are probably driven more by symbolic than instrumental thinking.

Cost-benefit thinking is also implicit in 26g: “Once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.” Again, we see something far short of overwhelming support, with just over half (55%) agreeing.

It is interesting to compare 26g, which frames early release in cost-benefit/instrumental terms, with 26a, 26c, and 26d, which frame early release more in terms of moral desert. All three received higher numbers of “agrees” than 26g:

  • Criminals who have genuinely turned their lives around deserve a second chance: 85%
  • Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release: 67%
  • Even if such an earned-release program does not reduce crime, it would still be the right thing to do: 58%

Also reflecting a moral/symbolic approach and a rejection of cost-benefit balancing are the 54% of respondents who agreed that “[e]ven if truth in sentencing does not reduce crime, it would still be the right thing to do” (25d).

Finally, it is interesting to compare 27d with 27e. In the former, 58% indicate that most of the people in prison deserve to be there, while in the latter only 48% indicate that most prisoners are too dangerous to be released into the community. This suggests that more respondents were thinking about punishment in terms of moral desert than in terms of public safety.

This is admittedly a very crude measure, but if you look for all of the responses to the questions that seem most clearly to favor an instrumental/costs-count approach, you get the following percentages: 32, 34, 49, 41, and 55. The numbers that seem most clearly to favor a symbolic or cost-is-no-object approach are: 54, 58, 29, 50, and 35. The ranges and averages are pretty similar, which means that it is hard to say that there is decisive support for either viewpoint.

Very roughly speaking, it may be that something like 30-40% of Wisconsinites have strong instincts in favor of cost-benefit balancing in punishment, 30-40% have strong instincts against, and the remaining 20-40% are in the middle, weighing instrumental considerations more heavily sometimes and symbolic considerations more heavily at other times.

Cross posted at Life Sentences.

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