California Assembly Passes Bill Requiring Prosecutors and Judges to Consider Costs of Sentencing in Criminal Cases

SACRAMENTO, CA — Yesterday, the California State Assembly passed Assembly Bill (AB) 1474, which would for the first time require prosecutors and judges to consider the economic costs associated with lengthy criminal sentences.

Authored by Assemblymember Jesse Gabriel (D-Woodland Hills), the measure would require prosecutors during sentencing to state on the record the estimated cost of their recommended sentence, and similarly require judges to state the estimated cost of the sentence imposed. Estimates would be based on standardized cost calculations provided by the Department of Finance and the Board of State and Community Corrections.

“Despite recent reforms in our approach to criminal and juvenile justice, California continues to lead the nation in spending on corrections,” said Assemblymember Gabriel. “This results in diminished revenues for other public policy priorities, including education, housing, human services, public health, and environmental protection. AB 1474 builds on momentum to promote fiscal accountability and end California’s failed experiment with mass incarceration. The measure will bring additional transparency to the sentencing process and help prosecutors and judges to consider the broader impacts of the sentences they recommend and impose. In so doing, AB 1474 will help to ensure that taxpayer resources are spent wisely and in a manner that truly advances justice and public safety.”

In recent years, there has been growing interest in how to reduce the excessive costs of state criminal justice systems, with efforts for reform gaining growing bipartisan support.

California is no exception. Over the past decade, both the legislature and the electorate have taken various actions to reduce the number of incarcerated people under the supervision of the California Department of Corrections and Rehabilitation (CDCR). Since the implementation of these policy changes, the state’s incarcerated population has declined by nearly one‑quarter and the persons on parole population by nearly one‑half. Despite this, CDCR spending has increased by over $3 billion, or approximately 30%, from about $9.7 billion in 2010‑11 to an estimated $13.3 billion in 2019‑20. As a result, California currently spends more on corrections than Texas and New York combined. A 2019 report by the California State Auditor found that CDCR had done little to verify the performance of its programs and suggested that it receive independent oversight to monitor its progress.

Prosecutors and judges play a central role in sentencing; yet, historically, they haven’t had to consider the financial costs of incarceration. This is due to the fact that for state criminal cases, prosecutors usually work at the county level, but when they imprison someone for a felony, the county doesn’t foot the bill for it—the state does. “This blank check on admissions creates a tragic paradox,” the policy institute Brennan Center for Justice states in an article about reducing prison costs. “It is easier and cheaper for a prosecutor to send someone to state prison rather than consider local, community-based options.”

AB 1474 is modeled after successful protocols currently in practice by prosecutors in Pennsylvania and Virginia. In Philadelphia County and Loudon County, prosecutors state the estimated cost to taxpayers for the sentence they recommend.

Considerations of fiscal cost in sentencing also have been touted by legal academics. Preeminent conservative legal scholar and former Federal Appeals Judge Richard Posner has urged judges to consider all factors in criminal sentencing, including the cost of imprisonment.

“AB 1474 is an important step toward transparency in sentencing and the true cost of incarceration,” said Anne Irwin, Director of Smart Justice California. “This bill will help judges impose more effective sentences that promote both public safety and community well-being by focusing attention on the economic and opportunity costs of lengthy incarceration. This cost transparency will lead to an overdue examination of whether we are getting a good return on our costly investment in incarceration.”

AB 1474 is expected to be heard in Senate policy committees in the coming weeks.