Rationing Criminal Justice

By Bierschbach, Richard A.; Bibas, Stephanos | Michigan Law Review, November 2017 | Go to article overview

Rationing Criminal Justice


Bierschbach, Richard A., Bibas, Stephanos, Michigan Law Review


INTRODUCTION

Today, there is widespread agreement that America as a whole overpunishes. We lock up too many inmates for too long. The costs are substantial: taxpayers pay tens of thousands of dollars to house each inmate each year. But the costs go far beyond monetary ones. Inmates lose years of their lives and work experience, making them hard to employ.1 Families lose husbands and fathers. Some neighborhoods, particularly poor minority ones, have a void of young men, and many Americans resent and mistrust the bloated American carceral state. The system loses legitimacy. One would think that the social benefits of harsh prison sentences would have to be substantial to warrant these costs. Yet, in many cases, the benefits pale in comparison.2

This overpunishment in practice is at odds with punishment theory. As Jeremy Bentham and many others have argued, governments should not impose punishments when they are ineffective, too expensive, or more expensive than alternatives.3 Sentencing laws, such as the Sentencing Reform Act, likewise enshrine this principle of parsimony.4

Why, then, does our system overpunish? One classic and important explanation is the pathological politics of criminal law: public opinion, partisan argument, and interest-group politics generally push toward harsher penal policy, and legislators and prosecutors both win when prosecutorial power expands.5 But, as this Article explains, another, less noticed part of the problem is a mismatch between judging cases individually and weighing the spillover effects and collective costs of punishment systematically. In economic terms, criminal justice presents a classic case of externalities, particularly negative externalities. Individual actors, agencies, and different levels of government benefit from pursuing individually rational actions but do not suffer the costs they individually and collectively impose upon others. Sometimes, individual actors lack good information about systemic effects; sometimes, they lack incentives to minimize the harms and costs they impose; much of the time, they lack both. The result is that criminal justice resources are badly misallocated. Unhinged from cost, actors overuse the most punitive and immediately rewarding criminal justice tools (like stopand-frisks, pretrial detention, and prison beds) and underuse others (like community policing, alternative sanctions, and reentry programs, all of which probably generate positive externalities). The political economy of criminal justice only makes this problem worse.6

The problem of externalities has not received nearly enough attention in the criminal law or procedure literature. Criminal law scholars gravitate toward the same questions of guilt and desert that underlie much of criminal law doctrine itself; criminal proceduralists do the same with issues of distributive justice. Criminal law and procedure have mechanisms that try to ensure that individual defendants are arrested, prosecuted, convicted, and sentenced without bias and in rough proportion to their desert, however one defines that concept.7 But those individual arrests, convictions, and punishment decisions happen in the context of particular cases, isolated from their ripple effects and from a broader, system-wide perspective.8 The problem is exacerbated because some systemic effects-such as busting state coffers, depriving neighborhoods of young men, or undercutting legitimacy-emerge only once convictions and sentences reach a tipping point. Even those who doubt that we overpunish should worry about externalities, which lead to skewed, wasteful, or otherwise poor decisionmaking.

This Article explores the causes of this mismatch and some conceptual tools for addressing it. In part, the mismatch flows from the structure of our criminal justice system and the nature of criminal justice decisionmaking. American criminal justice is the product of many fragmented, loosely coordinated institutions: legislatures, police, prosecutors, judges, juries, parole boards, and probation officers. …

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