Monetization of Justice? Larry Krasner’s timely challenge

By Prof. Mark Juszczak

The publication of Larry Krasner’s Revolutionary internal memo for new sentencing guidelines for the Philadelphia District Attorney’s office is a critical document at the intersection of public policy, discourse theory and incarceration in the United States.

The purpose of the memo is simple: to provide guidelines, at the sentencing stage, that result in a reduction of incarceration – both in number of people incarcerated and in number of years individuals are incarcerated.

While some aspects of the memo are in line with general national trends towards decriminalization of marijuana, for example, other aspects of the memo provide a novel approach to sentencing that is controversial: the public disclosure, at sentencing, of the cost of that recommended sentencing to the public.

This ‘monetization of justice’ in the name of transparency needs to be addressed. Not because I am specifically against it, but because it represents an approach to solving the massive over-incarceration problem in the United States that is a double-edged sword, and that must be exercised with due caution.

On the positive side, the public disclosure, at sentencing, of the cost of sentencing to the public, should create a more restrained sentencing approach on the part of district attorneys in Philadelphia. The public verbalization of the taxpayer burden incurred by a particular sentence is itself a form of mandated institutional restraint. The statement of cost introduces the notion of cost into the question of sentencing; and forces that discussion to be public. Does it serve the interest of the public, and the poor who are primarily the victims of many laws in the United States that indirectly or directly criminalize poverty, to remove from the workforce population and imprison at a cost upwards of $40,000 a year, an individual for a particular crime? Does that crime merit that length of sentence – and is a period of incarceration the most appropriate and just measure of penalization in the context of the act allegedly committed?

On the negative side, the ‘monetization of justice’ can easily snowball into a monetization strategy for potential criminals – who look to commit criminal acts in poor districts precisely because those districts, following similar guidelines, cannot afford to imprison for extensive periods of time or do not want to burden taxpayers with that cost.

Krasner’s ultimate objective is the right one for this time and place: the systemic transition away from two things: the criminalization of poverty and the disproportionate incarceration of poor people and minorities in the United States. And the essence of his monetary argument is equally sound: to ask the question at sentencing, all things being equal, whether we are better served as a society imprisoning individuals or creating systemic solutions to many of the fundamental social inequalities that create what are increasingly called school to prison pipelines.

If the public disclosure of the cost of sentencing is the beginning of a broader effort to nationally decriminalize poverty, I believe it is an excellent first step.