Academic journal article Law & Society Review

If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation

Academic journal article Law & Society Review

If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation

Article excerpt

This article examines the consequences of prison overcrowding litigation for U.S. prisons. We use insights derived from the endogeneity of law perspective to develop expectations about the likely impact of overcrowding litigation on five outcomes: prison admissions, prison releases, spending on prison capacity, prison crowding, and incarceration rates. Using newly available data on prison overcrowding litigation cases joined with panel data on U.S. states from 1971 to 1996, we offer a novel and comprehensive analysis of the impact that overcrowding litigation has had on U.S. prisons. We find that it had no impact on admissions or release rates and did not lead to any reduction in prison crowding. Litigation did, however, lead to an increase in spending on prison capacity and incarceration rates. We discuss the implications of these results for endogeneity of law theory, attempts to achieve reform through litigation, and the politics of prison construction.

The unprecedented and unparalleled size of the U.S. prison population has received an enormous amount of scholarly attention. Incarceration has become so common and widespread, especially among African Americans, that it has left significant marks on racial inequality in labor markets, wages and health, and has reshaped citizenship and race relations in contemporary America (Alexander 2010; Manza and Uggen 2006; Pager 2007; Richie 2012; Stevenson 2014; Wacquant 2001; Wakefield and Uggen 2010; Western 2007). One necessary condition for rising incarceration rates has been the massive expansion in prison construction and capacity, without which prison populations could not have grown so dramatically. Research attempting to explain the "race to incarcerate" has largely overlooked the question of prison construction and focused on the economic and political forces behind changes in crime control policy (Beckett 1997; Dyer 2000; Garland 2001a, b; Gottschalk 2006; Jacobs and Helms 1996; Mauer 2006; Western 2007). This research tends to lump the politics of "getting tough on crime" together with the politics of prison construction, as if they were one and the same. And yet, at least during the formative and fastest-growing years of the incarceration boom, from roughly the mid-1970s up to the late 1980s, garnering political support for prison construction was far more problematic than getting tough on crime (Eason 2006; Jacobs 1983-84; Libov 1987; Miller 2008; Yackle 1989). In other words: putting people in prison was easy, but building them was not.

Booming incarceration rates coupled with inertia against prison spending provided fertile grounds for litigation aimed at improving prison conditions and reducing crowding. In 1970, there were only six civil rights cases filed in Federal courts for every 1,000 inmates; 10 years later this rate had increased fivefold, and by 1995 such filings accounted for 20 percent of the entire Federal docket (Schlanger 2003). While only a minority of these cases involve prison overcrowding directly, prison reform litigation has become a common and enduring feature of U.S. prisons, even following the passage of the Prisoner Litigation Reform Act in 1996 (Schlanger 2003, 2006).1 Despite this, there has been surprisingly little systematic attempt to assess the impact of prison overcrowding litigation. Existing research offers partial or mixed results and leaves key methodological concerns unresolved. Importantly, no study has examined overcrowding litigation's impact on prison crowding. This means that, after decades of litigation, we still do not know if prison overcrowding litigation had its intended effect.

In this article, our goal is to gain a better understanding of overcrowding litigation's impact on U.S. prisons. In so doing, we also hope to provide new insights into the political dynamics of prison construction. The conceptual lynchpin uniting these aims is the "endogeneity of law," which is a term coined to describe how organizations blunt the impact of regulations and lawsuits by shaping judicial conceptions of what counts as legal compliance in ways that are aligned with professional and organizational interests (Dobbin 2009; Edelman 2005; Edelman et al. …

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