William Otis has an interesting essay in Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions,” that provides a strong critique of the post-Booker Sentencing Guidelines. I wanted to draw attention to one of his recommendations of how to repair the Sentencing Guidelines.

[I]if the Sentencing Commission is to remain in operation (see subsequent discussion), it should forthwith require of itself a crime-and-cost impact statement setting forth a line-by-line estimate of the real-world consequences any new guideline or policy statement is likely to produce.

It’s too obvious for argument that a government agency, before taking action, ought to understand, as well as disclose to the citizens, what effects its proposals are likely to have on them. For years the law has required environmental impact statements for proposed construction projects, and there is no reason the same principle should not be applied to proposed changes in sentencing. The human environment counts, too.

In particular, the Commission will have to refine and expand its present incarceration estimates. If the Commission proposes a change likely to result in higher sentences, it should study how many more years of imprisonment, in the aggregate, this change would produce and tell the public what it’s going to cost; the day has passed when the taxpayers can foot the bill for every change, even if seemingly desirable.  Similarly, if the Commission proposes a change likely to result in lower sentences (e.g., its recent crack/powder equalization proposal, discussed subsequently), it should produce an estimate of the impact of the resulting additional crime.

This is effectively calculating the Constitutionality of Social Cost. In other words, what are the varied costs and benefits to society of increasing or decreasing someone’s incarceration. There are benefits to locking someone up (keeping them off the street, rehabilitation, retribution, etc.) but also negative costs (the actual expense of incarceration, deprivation of individual liberty, etc.). This is an interesting application of social cost that I had not considered.

H/T Sentencing Blog