Wisconsin has already had two sentencing commissions, now both defunct.  Is it time to think about a third?  Sentencing commissions have proven their worth over the long haul in a number of other states, including Minnesota, North Carolina, and Virginia.  A successful sentencing commission promulgates guidelines that channel judicial sentencing discretion and reduce sentencing disparities, collects and analyzes sentencing data in order to support evidence-based decision making, and provides information and recommendations to the legislature than can help to blunt some of the political system’s tendencies to excessive harshness.  Although it is certainly not cost-free, a good commission may ultimately save the state far more than is required to fund its operations.

With these considerations in mind, the latest edition of the Marquette University Law School Poll asked respondents their views of commissions and of judicial sentencing discretion.  (For my earlier posts on the Poll, see here and here.)  The results indicate that there is substantial support for a commission, but that Wisconsinites also appreciate what their locally elected judges bring to the table as sentencers.  

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.