This argument is avowedly theoretical and normative. That is, this Article tries to determine what judges ought to do, not what they in fact do. Judges and attorneys may argue cost at sentencing hearings, and many of them do. That does not mean that they should be debating cost or basing sentencing decisions on it. I also am not concerned about whether, pragmatically, letting judges figure cost into their decisions might be a good thing overall, because it might lead to lower sentences. I put these concerns to one side, important as they may be as a practical matter. Instead, the Article questions: Ideally, what should sentencing look like? My answer is simple: Cost should be, at most, a marginal consideration in sentencing and should not be something that judges are urged to consider as a primary sentencing factor.
Cost as a Sentencing Factor: Missouri's Experiment,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss2/3