December 08, 2008
Massachusetts, like most states around the country, is in fiscal crisis. Gov. Deval Patrick announced more than $1 billion in midyear spending reductions last month. At the same time, the prison system is bursting at its seams: Almost 12,000 state prisoners are living in space built for fewer than 8,000, and the prison commissioner has announced that prisoners in maximum-security facilities may have to double-bunk.
Studies show that putting inmates in such close quarters increases violence. But this policy is flawed for an even more fundamental reason: A patchwork solution like double-bunking fails to offer a long-term, fiscally responsible approach to criminal justice. Despite stable crime rates, the prison population is rising, and unless some sentencing laws are reconsidered, overcrowding is not going away.
Simply building more prisons isn’t a feasible solution. An across-the-board release of prisoners or lowering of sentences is obviously unappealing. But the combination of the state budgetary and prison overcrowding crises offers Massachusetts an opportunity to become smarter in its sentencing policy and to adopt the best solution: using fiscal-cost forecasting for criminal sentencing.
Fiscal cost forecasting makes sentencing policy more rational in the real world of limited resources. Minnesota’s sentencing commission has developed computer models to predict the impact in terms of dollars and prison population of all changes to the state’s laws affecting criminal sentences. This early-warning system has empowered - indeed, forced - officials there to consider the costs of sentencing proposals prior to enacting them, which has allowed that state to avoid the prison overcrowding that has plagued Massachusetts.
Minnesota’s system is so successful that virtually every state with a sentencing commission has followed suit, including Washington, North Carolina, Virginia and Alabama. Washington alone has saved $45 million per year as a result. Indeed, these cost projections are so successful that the American Bar Association has included cost forecasts as an integral part of its proposed model law of sentencing.
Massachusetts has a sentencing commission, but the Legislature hasn’t adopted the guidelines the commission suggested years ago. Nor has the Legislature paid any attention to cost estimates produced by the commission or any other group. But ignoring these costs leads to a situation like the one Massachusetts is in right now: Too many prisoners, not enough beds and not enough money. No aspect of state policymaking should be immune from a rational consideration of costs and benefits, and that includes criminal justice.
Significantly, fiscal cost forecasting doesn’t dictate higher or lower sentences. Sometimes states raise sentences in light of cost data, knowing that they have the resources to afford the financial outlay. Other times, states lower sentences for some crimes (particularly nonviolent crimes) in order to reserve space for violent crimes and achieve the same overall reduction in crime, but at a lesser cost.
Cost data allow more informed, more efficient and more rational use of resources. When $1 billion is being cut from the Bay State budget and violent felons are sharing bunk space, getting more bang for the prison buck makes common sense.Barkow is a professor at New York University School of Law and the director of NYU’s Center on the Administration of Criminal Law. Libling is a fellow at the center. Barkow is teaching Legislation and Regulation and the reading group The Power of Prosecutors in the Fall Term 2008 at HLS.