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
SUMMARY

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... (see full summary)

 
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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
ANALYSTS 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, INTL 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

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