By Tom McSorley

Recently, a Connecticut judge disallowed a jury from considering arguments of convicted murderer Steven Hayes’s defense lawyers relating to the higher cost of imposing the death penalty over life imprisonment in the sentencing phase of his trial.  According to The Wall Street Journal Law Blog, Connecticut judge Jon Clarence Blue ruled that the jury is “charged with the task of using reasoned moral judgment, not counting dollars and cents,” so cost-benefit arguments were irrelevant in the jury’s decision-making process. This occurred nearly a month after the New York Times reported that Missouri is encouraging judges to utilize “price tag” information in sentencing decisions by providing such data (along with other information, like recidivism rates for various sentences and crimes) in an easily accessible format.  Professor Thaddeus Hoffmeister of the University of Dayton School of Law noted on his Juries blog that Steven Hayes was convicted of a “heinous” murder while the new information system deployed in Missouri seems to be primarily focused on lower level crimes. Hoffmeister leaves open the question that these recent events prompt: “Should jurors be allowed to consider economic costs when sentencing individual defendants?”

The issue does appear to be parsed along the lines Hoffmeister initially noted: between “heinous” crimes, where retribution is a primary concern, and most other types of typical convictions, where Missouri is attempting to increase the cost-effectiveness of the more systemic purposes of the justice system, like rehabilitation and deterrence.

Nevertheless, even if the Hayes’ victims deserve a purely “moral” sentence, Judge Blue’s distinction between “moral” decisions and “economic” ones is disappointingly formalistic. For many, economic considerations weigh heavily in moral decisions. For example, a principled juror could still factor cost into her moral decision if she believed that society should spend as little as possible on punishing such a heinous offender while removing them permanently from society. Would it not be a legitimate moral argument that life imprisonment is more “good” than the death penalty on the grounds that such a decision will save thousands of dollars which could be directed at other uses – victims’ compensation funds, schools, elderly residents, and so on, while the perpetrator will effectively suffer the same fate? Or, a juror might believe that life imprisonment is a better sentence on any number of moral grounds, but hesitate because they erroneously believe that the sentence costs more, and they believe it would be wrong to take more state resources than necessary to deal with the murderer. Judge Blue is drawing a very narrow definition of morality, one that he seems to believe should be blind to certain practical considerations. The use of dollars-and-cents reasoning might offend other jurors sense of morality, and such jurors might rely solely on the Bible, the words of their grandparents, or their “gut” feelings in making their sentencing decision. But, as it stands, Judge Blue did not limit juror decision-making to morality, he limited whatmorality jurors were allowed to follow.