09/28/2010 04:17 pm ET | Updated May 25, 2011

Accounting for Justice

The scene: A judge sitting on the bench, gavel in hand. Sentence is about to be passed on a convicted person nervously standing at the defense table.

Question: Should the judge stop to think how much the state will have to pay to incarcerate the convict before passing sentence? The State of Missouri thinks so.

When I first heard about the Show Me state's new formula for sentencing the newly convicted my knee jerk reaction was - this is awful! Justice is justice and judges are there to mete it out, not to sit with a calculator on the bench and tally up the cost! But then I stopped and really looked into Missouri's new idea which went into effect last month.

Here's the deal - and despite some media reports - it's not just about the money. Missouri's Sentencing Advisory Commission came up with an algorithm of past statistics and current calculations that give a judge some idea about what might be accomplished with various different sentences. What's the likelihood the convict will re-offend? Are they likely to violate parole? How much would alternative sentencing (community service and probation) cost and might it be useful?

Using 11 different factors from the convicted person's past, including their age, prior criminal record, education and employment status and the latest crime they've committed the Missouri judge can weigh all sorts of facts before passing sentence. Here's an example given by the Advisory Commission:

A 20 year old man is found guilty of second-degree robbery, which is defined as taking property without a gun and without causing injury. He has no prior felonies but he is suspected of substance abuse. He's a high school graduate and has a part time job that he's held for just two months. Taken all together the calculation concludes he is an "above average risk." After conviction he's looking at the possibility of spending several years in jail, which Missouri figures would cost their taxpayers about $16,823 each year.

After feeding the high risk defendant's variables into Missouri's Automated Recommended Sentencing system the program delivers various options to the judge and reveals how much each would cost taxpayers. If the defendant described above is given five years in jail the young man will likely serve just 3 years and get a mandatory two more of enhanced probation. Total cost: $54,724. But after spending all that money, guess what? The recidivism rate for such convicts is 39.6 percent! Another option for the judge to consider for the young man is a sentence based on Community Service, which includes 5 years probation and the threat of prison if the defendant doesn't keep his or her nose absolutely clean. That option would cost Missouri taxpayers a total of $8,960. It's a lot cheaper, yes, but according to the formula it's also more effective for keeping this type of offender from returning to the penal system. The recidivism rate for a defendant who gets this kind of sentence is just 29.7 percent.

In other words, Missouri 's statistics show that if certain criminals are given a chance to stay free (while still being supervised by the law) they tend to return to prison about 10% less often than if they were sentenced to do hard time. Of course it's all up to the individual judge to make the final decision.

There are critics of this new way of sentencing. Many prosecutors balk at the idea of saving a few thousand dollars per inmate because, as they'll tell you, the cost of the havoc these criminals might wreak upon the population if allowed to roam free is often incalculable. "No one can put a price tag on being a victim," Scott Burns of the National District Attorneys Association said. To the opposition the intent of the program is clear - to try to pressure judges into sending fewer people to prison in these times of severe economic distress.

The chairman of Missouri's sentencing board is a judge himself, Michael A. Wolff of the State Supreme Court. He's assured citizens that judges in Missouri would never consider anything but hard jail time for violent offenders, that the idea of optional sentences would be applied only in cases where a prison term isn't the only alternative.

I'm usually a hard liner on keeping criminals in prison but it seems we spend an awful lot of money over-incarcerating non-violent offenders, especially those with drug and alcohol convictions. Maybe if we got them back out into the world (while keeping them in court sponsored programs) we'd create more taxpaying citizens to ease the burden on the rest of us.

The United States has more of its citizens locked up in prisons than any other country in the world. Latest figures show 1 out of every 100 Americans is currently in the justice system. I think it's time we started thinking outside the box.

Diane Dimond can be reached through her web site at: