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

• DOI: http://doi.org/10.1111/lasr.12140
• Published date: 01 June 2015
• Date: 01 June 2015

If You Build It, They Will Fill It: The Consequences

of Prison Overcrowding Litigation

Joshua Guetzkow Eric Schoon

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 throughliti-

gation, and the politics of prison construction.

The unprecedented and unparalleled size of the U.S. prison

population has received an enormous amount of scholarly atten-

tion. Incarceration has become so common and widespread, espe-

cially 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 incarcer-

ation 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

This research was supported by grants from the Udall Center for Studies in Public Pol-

icy at the University of Arizona and the Aharon Barak Center for Interdisciplinary

Research at the Hebrew University of Jerusalem. The authors thank Alexandra Kalev, par-

ticipants of the Jerusalem Forum on Criminal Justice, and the anonymous reviewers for

their productive feedback. Please direct all correspondence to Joshua Guetzkow, Institute

of Criminology and Department of Sociology and Anthropology, Mt. Scopus, Hebrew Uni-

versity,Jerusalem 91905, Israel; e-mail: joshua.guetzkow@mail.huji.ac.il.

Law & Society Review, Volume 49, Number 2 (2015)

V

C2015 Law and Society Association. All rights reserved.

401

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 poli-

tics 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 incar-

ceration 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 f‌il-

ings 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 system-

atic 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

1

Prison reform litigation covers diverse aspects of prison life, including overcrowd-

ing, racial segregation, treatment of inmates, sanitation, medical care, staffing ratios, reli-

gious freedoms, and so forth. In this article, we focus specifically on cases that involve

overcrowding. As we discuss in the data section, the issue of overcrowding is nearly always

joined with other complaints, usually to support a claim of cruel and unusual punishment

based on a “totality of conditions” (Chung 2000). At the same time, overcrowding is often

viewed as the central issue that fosters and exacerbates other problems. Although our

empirical analysis only pertains to cases where overcrowding is an issue, many of the

insights drawn from our analysis can be applied to prison reform litigation more broadly.

402 The Consequences of Prison Overcrowding Litigation

(Dobbin 2009; Edelman 2005; Edelman et al. 1999, 2011). Existing

research in this tradition has focused almost exclusively on equal

employment opportunity law. Here, we apply the endogeneity of

law approach to prison overcrowding litigation, using it to derive

expectations about a set of outcomes that, taken together, depict

the impact of overcrowding litigation. Specif‌ically, we look at three

possible ways that state off‌icials could have responded to litigation:

reducing prison admissions, increasing releases, and boosting

spending on prison capacity. We then examine whether two sec-

ondary outcomes—prison crowding and incarceration rates—were

subsequently affected by off‌icials’ response to litigation. We test

our expectations about the impact of overcrowding litigation on

these outcomes using state-level time series data from 1972 to

1996. Examining these outcomes in concert provides us with new

insights into the ways that state governments have responded to

overcrowding litigation and allows us to assess the usefulness of

the endogeneity of law approach for understanding the unin-

tended consequences of overcrowding litigation on mass incarcera-

tion and, more broadly, the power and limits of judicial activism.

The Endogeneity of Law and Prison Overcrowding

Litigation

The endogeneity of law perspective has its roots in neo-

institutional theorizing on the effects of the law on organizational

f‌ields (DiMaggio and Powell 1983), especially the insight that

actors in the f‌ield may participate in shaping the institutional

demands on them (Meyer and Rowan 1977). The term, endogene-

ity of law, was coined and developed by sociolegal scholar Lauren

Edelman and her collaborators to describe how organizations’

responses to anti-discrimination legislation shaped the meaning of

the law and courts’ perceptions of what counts as compliance

(Dobbin 2009; Edelman 1990, 2005; Edelman et al. 1999, 2011).

In their analyses, anti-discrimination regulations and subse-

quent litigation altered the balance of power in organizations,

boosting the professionalization and inf‌luence of human resour-

ces workers (Dobbin 2009; Dobbin and Kelly 2007). In the face

of ambiguous civil rights laws in the 1960s and an uncertain legal

environment, executives embraced the advice of human resour-

ces professionals and their associations regarding appropriate

organizational responses- for example, the adoption of internal

grievance procedures or diversity training (Dobbin et al. 1993;

Edelman 1990; Edelman et al. 1999). As Edelman (2005) argues,

these responses were aimed primarily at signaling compliance

and preventing future litigation, while interfering as little as

Guetzkow & Schoon 403