The Imprisoner's Dilemma: A Cost - Benefit Approach to Incarceration

• Author: David S. Abrams
• Position: Assistant Professor of Law, Business, and Public Policy, University of Pennsylvania
• Pages: 905-969

905

The Imprisoner’s Dilemma:

A Cost–Benefit Approach to Incarceration

David S. Abrams

ABSTRACT: Depriving an individual of life or liberty is one of the most

intrusive powers that governments wield. Decisions about imprisonment

capture the public imagination. The stories are told daily in newspapers

and on television, dramatized in literature and on film, and debated by

scholars. The United States has created an ever-increasing amount of

material for discussion as the state incarceration rate quadrupled between

1980 and 2000. While the decision to incarcerate an individual is given

focused attention by a judge, prosecutor, and (occasionally) a jury, the

overall incarceration rate is not.

In this Article, I apply a cost–benefit approach to incarceration with the

goal of informing public policy. An excessive rate of incarceration not only

deprives individuals of freedom, but also costs the taxpayers large amounts

of money. Too little imprisonment harms society in a different way—through

costs to victims and even non-victims who must increase precautions to

avoid crime. Striking the right balance of costs and benefits is what good

law and public policy strive for.

Changes to the inmate population may be made in several different ways.

One insight that I stress in this Article is that the precise form of a proposed

incarceration policy change is crucial to properly evaluating the impact of

the change. Therefore, I analyze several potential policy changes and their

implications for sentencing and imprisonment. The calculations are

informed by recent empirical work on the various ways in which

 Assistant Professor of Law, Business, and Public Policy, University of Pennsylvania. I

am grateful for excellent comments and suggestions from Matt Adler, Anita Allen, Jennifer

Arlen, Mitch Berman, Stephanos Bibas, Cary Coglianese, Ted Eisenberg, Claire Finkelstein,

Josh Fischman, Jean Galbraith, Nuno Garoupa, Dan Ho, Bert Huang, Doug Husack, Leo Katz,

Judd Kessler, Jonathan Klick, Michael Knoll, Susan Kolpon, Seth Kreimer, David Law, John

MacDonald, Stephen Morse, Gideon Parchomovsky, J.J. Prescott, Paul Robinson, Dan

Rubinfeld, David Rudovsky, Sonja Starr, Jeremy Tobacman, Michael Wachter, Polk Wagner,

Tess Wilkinson-Ryan and Christopher Yoo. Neel Rane and Kathy Qian provided outstanding

research assistance.

906 IOWA LAW REVIEW [Vol. 98:905

imprisonment impacts overall welfare. I find that the benefits of limited one-

time prisoner releases and the reclassification of some crimes exceed the costs.

INTRODUCTION ...................................................................................... 907

I. OVERVIEW OF POLICY CHANGES ............................................................ 912

A. TYPES OF POLICY CHANGES ............................................................... 912

B. MECHANISMS BY WHICH INCARCERATION IMPACTS CRIME ................. 916

II. CAUSAL INFERENCE AND THE INPUTS TO COST–BENEFIT ANALYSIS ...... 918

A. EMPIRICAL STUDIES OF GENERAL DETERRENCE .................................. 920

1. Background ............................................................................ 920

2. Recent Literature ................................................................... 922

3. Using Add-On Gun Laws To Estimate General

Deterrence .............................................................................. 924

B. EMPIRICAL STUDIES OF SPECIFIC DETERRENCE ................................... 929

1. Background ............................................................................ 929

2. Recent Literature ................................................................... 930

3. Using Randomly Assigned Attorneys To Estimate

Specific Deterrence ................................................................ 933

C. EMPIRICAL STUDIES OF INCAPACITATION ........................................... 936

1. Background ............................................................................ 936

2. Recent Literature ................................................................... 937

D. COST OF CRIME ................................................................................ 940

E. COST OF INCARCERATION .................................................................. 946

1. Cost of Prisons ........................................................................ 946

2. Lost Productivity and the Value of Freedom ....................... 948

3. Other Costs of Incarceration ................................................. 950

III. COSTS AND BENEFITS OF THREE POLICY CHANGES ................................ 953

A. ANALYTICAL FRAMEWORK ................................................................ 953

1. Policy 1: Increase All Sentence Lengths by x% .................... 954

2. Policy 2: Crime Reclassification ............................................ 956

3. Policy 3: Prisoner Release ...................................................... 957

B. EMPIRICAL ANALYSIS ........................................................................ 958

1. Policy 1: Increase All Sentence Lengths by x% .................... 961

2. Policy 2: Crime Reclassification ............................................ 963

3. Policy 3: Prisoner Release ...................................................... 965

IV. DISCUSSION ............................................................................................ 965

V. CONCLUSION ......................................................................................... 968

2013] THE IMPRISONER’S DILEMMA 907

INTRODUCTION

On May 23, 2011, in Brown v. Plata, the United States Supreme Court

upheld a ruling that California’s prisons were so overcrowded that they

violated inmates’ Eighth Amendment protections.1 The state was ordered to

reduce its prison population by about 35,000 inmates within two years,2 a

number equivalent to the entire incarcerated populations of Switzerland,

Denmark, Norway, Sweden, Ireland, and Belgium combined.3

Prior to the finding in Brown v. Plata, the California legislature had

already passed a bill aimed at reducing incarceration in the state, due to

both the pending litigation in the Supreme Court and the severe budgetary

crisis.4 The situation in California is emblematic of the states as a whole,

where existing incarceration policies and tight budgets have led to rampant

overcrowding in prisons.5 After a two-decade period in which incarceration

1. Brown v. Plata, 131 S. Ct. 1910, 1944–47 (2011) (upholding the ruling of a three-

judge panel, finding that there was sufficient evidence to conclude that the prison population

“should be capped at 137.5% of design capacity”); see also PAUL GOLASZEWSKI, LEGISLATIVE

ANALYST’S OFFICE, A STATUS REPORT: REDUCING PRISON OVERCROWDING IN CALIFORNIA 3 & fig.1

(2011) (estimating inmate population reductions in the following amounts in order to meet

the rulings of the federal courts: 11,000 by December 27, 2011; 10,000 by June 27, 2012; 6000

by December 27, 2012; and 8000 by June 27, 2013).

2. The ruling could technically be satisfied by building additional prisons to house the

35,000 excess inmates. This possibility, however, is financially and politically infeasible, and

thus discussion has focused largely on reduction of state prison inmates. See GOLASZEWSKI, supra

note 1, at 7 (“[T]he federal court is not ordering the state at this time to implement specific

measures to reduce overcrowding in its prisons. Rather, the court is providing the st ate with the

flexibility to determine how best to limit the population in the prison system to 137.5 percent

of design capacity within two years.”); id. at 5–6 (arguing that “little progress has been made

on” plans to add additional prison capacity and that such plans are likely to “have little impact

on the state’s ability to comply with the three-judge panel’s ruling in the next two years”).

3. See ROY WALMSLEY, INT’L CTR. FOR PRISON STUDIES, WORLD PRISON POPULATION LIST

5–6 tbl.4 (8th ed. 2009).

4. SBX3 18, 2009–2010 Sess. (Cal. 2009) (enacted) (amending state law to increase the

monetary threshold for classifying certain crimes as felonies, establish parole reentry courts,

increase the credits that inmates could earn to reduce their in -prison sentence, and make

ineligible for return to prison violations by certain non-serious, non-violent parolees).

5. See W. Wesley Johnson et al., Getting Tough on Prisoners: Results from the National

Corrections Executive Survey, 1995, 43 CRIME & DELINQ. 24, 25 ( 1997) (“According to the

American Civil Liberties Union Status Report on state prisons, 33 jurisdictions were at that time

under court order or consent decree because of overcrowding and/or conditions in specific

prisons, and entire prison systems in 9 jurisdictions have been declared unconstitutional

because of overcrowding and/or conditions. Only three states—Min nesota, New Jersey, and

North Dakota—had never been under court order for prison overcrowding or conditions,

although many of New Jersey’s jails that house state prisoners are under court order.” (citation

omitted)); see also, e.g., Baker v. Holden, 787 F. Supp. 1008, 1018 (D. Utah 1992) (holding that

double celling of inmates would constitute “deliberate indifference” in certain circumstances

(internal quotation marks omitted)); Ruiz v. Estelle, 503 F. Supp. 1265, 1383–84 (S.D. Tex.

1980) (holding that prisons in Texas were overcrowded, resulting in inadequate sanitation,

recreational facilities, health care, hearing procedures for discipline, and access to courts), aff’d