School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons--what if convicted criminals could choose their prison rather than being assigned bureaucratically?
Under a voucher system, prisons would compete for prisoners, meaning that the prisons will adopt policies prisoners value. Prisons would become more constitutionally flexible--faith-based prisons, now of dubious legality, would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, higher-quality health care, and better educational opportunities--features that prison reformers favor for their rehabilitative value.
The counterarguments are threefold. "Social meaning" and other philosophical arguments hold that choice in prison conditions is either impossible or morally undesirable. On the more economic plane, "market failure" arguments hold that because of informational or other problems prisoner choice would not succeed in improving overall prison quality. "Market success" arguments, on the other hand, hold that prison choice would improve prison quality too much, satisfying inmate preferences that am socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force but do not foreclose the possibility that prison choice results in socially desirable improvements that could outweigh these disadvantages.
I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.
INTRODUCTION I. THE MECHANICS A. Choice B. Choice Is Not the Same as Privatization C. Funding D. Statutory Restrictions II. VOUCHERS AND CONSTITUTIONAL FLEXIBILITY A. The Constitutionality of Faith-Based Prisons 1. Religious Effects 2. Coercion 3. Delegation of Governmental Power 4. The Future of Faith-Based Prisons B. Beyond the Establishment Clause 1. The Unconstitutional Conditions Doctrine 2. Vouchers and the Rational of Unconstitutional Conditions III. VOUCHERS AND PRISON QUALITY A. The Potential Benefits of Vouchers B. The Potential Disadvantages 1. Nonempirical Arguments Against Vouchers 2. "Market Failure "Arguments Against Vouchers a. Barriers to Individually Maximizing Decisionmaking b. External Effects of Individually Rational Decisionmaking 3. "Market Success "Arguments Against Vouchers IV. THE POLITICS OF PRISON VOUCHERS A. An Adoption Coalition B. Post-Adoption Coalitions and Politics CONCLUSION INTRODUCTION
In this Article, I invite the reader to indulge in a thought experiment. What would the world look like if, instead of assigning a prisoner to a particular prison bureaucratically, we gave the prisoner a voucher, good for one incarceration, to be redeemed at a participating prison?
School vouchers have been debated to death (1) ever since Milton Friedman proposed them in 1955 (2) and progressives championed them in the 1960s. (3) Vouchers have also been discussed and used for other government services, including housing, (4) health care, (5) child care, job training, environmental protection, welfare, nutrition, and transportation. (6)
Vouchers are no stranger to the criminal justice system: they are used for halfway houses, mandatory anti-alcohol and drug treatment programs, (7) and criminal defense lawyers for the indigent. (8) A voucher system was implemented in a few states in the 1970s to allow inmates to buy training and education as part of "mutual agreement programs"--also known as "contract parole" programs--that helped inmates work toward parole. (9) This last idea was taken up in 1978 in the Model Sentencing and Corrections Act, (10) which suggested that prisoners get vouchers to purchase "specified treatment programs and services directly from either public or private agencies." (11)
But, as far as I can tell, no one has ever discussed vouchers as a serious possibility for prisons. (12)
This is a shame, because some of the same factors that led early education reformers to suggest school vouchers apply with equal, if not greater, force in the context of prisons. Both prisons and schools face a similar confluence of three factors:
Both face widespread and serious problems.
The problems in both areas have proven hard to solve through the usual political, administrative, and judicial means.
Allocation of students to schools, like the allocation of inmates to prisons, is predominantly done bureaucratically, with limited possibilities for choice.
The prima facie case for considering a market solution, in which the subject population would become consumers and thus drive reform by voting with its feet--essentially, getting rid of (3) to bypass (2) and thereby solve (1)--thus seems strong.
Let me focus on (1) for a bit. Modern American prisons--with their high violence rates, bad medical care, overuse of highly punitive measures like administrative segregation, and the like--are widely believed to be of low quality. (13) Note the similarity to the views of early school voucher proponents on the left, who wrote that the "public schools have not been able to teach most black children to read and write or to add and subtract competently" (14) and that the public school system "destroys rather than develops positive human potential." (15)
We should care about prison quality even if we don't care about prisoners themselves because bad prison conditions often indirectly hurt the rest of society. (16) Brutal conditions, (17) as well as excessive use of high-security segregation, (18) make prisoners less useful members of society and more likely to reoffend. (19) The low level of educational, vocational, and rehabilitative programs also contributes to recidivism. Furthermore, communicable diseases can spill over into the outside world when infected inmates are released." (20) The risk of multi-drug-resistant tuberculosis in New York in the 1980s and early 1990s may have been linked to poor medical treatment in prisons and jails. (21)
There are thus clear opportunities for gains from prison vouchers--not just to prisoners, but also to society at large--as competing prisons seek to attract prisoners by offering better security, medical care, and vocational programs. (22)
But, now focusing on (2), why can't we "just" fix prisons by other means, such as reform legislation, administrative oversight, or litigation?
Legislative prison reform is a tough sell--criminals are widely vilified. (23) In contrast, in the school reform context, all politicians at least claim to like kids. (24) Nor are elected officials eager to fund prisons. (25) Some reformers recognize that prison administrators or legislators have shown little interest in improving prisoners' lives, (26) especially if such improvements carry a cost. (27) Nonetheless, reformers continue to "urge" and "encourage" these same officials to increase prison expenditures or implement reforms. (28) Of course there's nothing wrong with urging, and some reforms have been implemented even in the face of political pressure to the contrary. (29) But it's unsurprising that mere urges haven't gone very far. (30)
Administrative solutions are likewise difficult because prison officials resist "scrutiny by 'outsiders.'" (31) Independent inspection and monitoring, as well as internal oversight mechanisms, such as effective grievance systems, are underused. (32)
Judicial solutions are also unpromising. (33) Courts often defer to the judgment of prison administrators, (34) and prisons are exempt from administrative procedure acts in many states. (35) Prisoner litigation, whether as individual claims or as more ambitious prison reform cases, is restricted by statute--for instance, by the Prison Litigation Reform Act (PLRA) (36)--and by case law holding prisoners' rights to be quite limited. (37)
Some have suggested contracting out prison management to the private sector (but holding the method of allocating prisoners constant) as a means of improving prison quality. (38) This is a controversial proposition--others categorically deny that contracting Out improves prison quality, (39) and even some who are more sympathetic to private contracting grant that the evidence on the quality of private prisons relative to public ones is mixed. (40)
Here, too, the parallels with schools are clear. Whether the blame lies with teachers' unions (41) or with politicians unwilling to spend money on schools, (42) schools have been hard to reform politically. Litigation hasn't worked well, (43) and any constitutional rights to a good education are generally weak. (44) Privatization of entire school systems with-within the context of mandatory government provision has been tried sporadically, but the results haven't been terribly impressive so far. (45)
The market-based approach that prison vouchers represent has an obvious appeal in this context. The logic is similar to that of school choice: vouchers empower the prisoners themselves to reward and punish prisons, creating powerful incentives for prisons to improve in accordance with the prisoners' own standards. (46) No longer would advocates have to urge prison administrators or legislatures to reform conditions in the interest of prisoners or try to convince these authorities that prisoner welfare is aligned with the social interest--a strategy that has not worked well so far. (47) Instead, prison administrators would be moved, as if by an invisible hand, to make their prisons better places.
In Part I, I explain how a prison choice program might work and how the vouchers would be funded. I also explain how prison choice is different from, and conceptually independent of, prison privatization.
In Part II, I discuss how vouchers would make prisons more constitutionally...