Professor Chad Flanders offers a normative theoretical critique of including costs of punishment in Sentence Advisory Reports (SARs) that the Missouri Sentencing Advisory Commission (MOSAC) produces. This approach provides a useful lens for understanding divergent opinions on the practice of including cost information in SARs and provides a consistent logical framework for understanding whether this practice squares with more fundamental principles of criminal punishment. In this Response, I complement the normative analysis in the main Article with several observations from a different analytical perspective. As an empirical social scientist, my analytical approach is based on positive analysis. I am less concerned with how people should be motivated and more concerned about how people actually behave. So without diminishing or contradicting Flanders's analysis, I wish to recast it as a positive analysis. Part II summarizes the main Article. Then, Part III sketches a game theoretic perspective on MOSAC and SARs. Next, Part IV describes MOSAC's repeated tendency to overstate the social costs of longer prison sentences and thereby conflict with voter and legislator preferences. Finally, Part V discusses the theoretical and practical effect of including cost information in SARs.
Cost as a Sentencing Factor: A Response,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss2/4