Prosecution & Fiscal Responsibility
Although prosecutors play a significant role shaping the size—and therefore ultimate cost—of the criminal justice system, they have few direct incentives to consider the budgetary impact of their decisions. Individual prosecutors can safely ignore the financial ramifications of any recommendation since those will never be the basis of any kind of supervisory or judicial review; after all, in all likelihood those supervisors and judges also have no idea what the relevant dollar amounts might be. Few office policies suggest prosecutors should do anything different. To the extent that policy incorporates money concerns, it is all too often the subtly corrupting influence of fines and fees that end up padding prosecutors’ budgets once collected. While prosecutors may feel some kind of pinch if other parts of the criminal justice system max out local budgets, they are unlikely to be held responsible for their role in creating a crisis.
All of which makes prosecutors another poster child for why so many Americans dislike how the government spends their hard-earned tax dollars. A single decision by a prosecutor may cost taxpayers literally hundreds of thousands of dollars, yet that prosecutor almost certainly never contemplated that cost. Even worse, this could be wildly disproportionate to the crime. Just consider a few shoplifting incidents that recently captured public attention involving prosecutors seeking, and sometimes obtaining, felony convictions and sentences as long as 12 years. Does it really make sense, for example, for Tennessee taxpayers to shell out $346,282.80 to lock someone up for a dozen years because that person ripped off Walmart for $39.57?
Prosecutors may also not fully recognize how costs are interfering with their public safety goals. Government coffers are not bottomless; a dollar spent on unnecessary prosecution or incarceration means one less for policing (or schools or roads, for that matter). The overt costs that prosecutors are more familiar with can be similarly counterproductive. Diversion fees, for example, may deter low-income defendants from participating in effective alternatives to prosecution. Likewise, the plethora of fines and fees associated with a prosecution and incarceration can place an individual in a financial hole from which illegal means may appear to be the only way out. The fact that some states tie prosecutor budgets to the collection of these fees or blunt metrics like felony charge rates can further distort office policy toward resolutions that are unadvisable from a public safety or rehabilitation perspective.
Correcting these imbalances begins with the meaningful consideration of the costs of confinement and other criminal justice sanctions. Prosecutorial leaders need to equip their line prosecutors with the knowledge and training necessary to identify egregious wastes of resources such as the shoplifting example above. Office policy, which dictates enforcement priorities and baseline sentencing recommendations, should likewise include costs as a factor alongside more traditional ones such as deterrence and rehabilitation. To the extent prosecutors have discretion over the fines and fees assessed to a defendant, they should similarly ensure that this debt does not undermine these other prosecutorial goals.
While prosecutors can whittle away at the issue around the margins, the heaviest lifting will fall to legislators. The criminal code must itself bend to budgetary realities; enforcement is not free and legislators need to consider the fiscal impact of new and existing criminal sanctions accordingly. At the same time, prosecutors usually cannot unilaterally achieve financial independence; only legislators can eliminate their reliance on fines and fees while ensuring adequate office funding.
Few people become prosecutors because they have a particular interest in or affinity for numbers or money. The thought of dollar signs appearing in prosecutorial decision-making may well make many uncomfortable or seem out of place next to high-minded ideals such as justice and equality. But resources are finite and costs do matter, and pretending otherwise simply results in a bloated justice system with sentencing costs sometimes wildly out of sync with the severity of the offense. Sometimes, the money involved will be trivial next to the demands of justice, yet prosecutors are simply too influential to operate outside of financial constraints and concerns.