Author:Bierschbach, Richard A.

Of the many diagnoses of American criminal justice's ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. Treating punishment like other public-law problems of regulation suggests various regulatory tools as potential solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice's distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

TABLE OF CONTENTS INTRODUCTION I. STRUCTURE, FOCUS, AND OVERPRODUCING PUNISHMENT A. Structure: Fragmented Levels, Misaligned Incentives 1. Vertical Fragmentation 2. Horizontal Fragmentation 3. Individual Fragmentation B. Focus: The Short-Term, Transactional Mindset 1. Short-Termism 2. The Transactional Mindset II. FOUR TOOLS FOR RATIONING A. Cost-Benefit Analysis B. Devolution C. Pricing D. Caps III. THE LIMITS OF RATIONING A. Rationing, Incentives, and Information B. Is Criminal Justice Special? 1. Intangibles 2. Politics 3. Equity 4. Localism CONCLUSION 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 stop-and-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. Typically, police are funded locally, prosecutors are funded by counties, and prisons are funded by states. County and local judges apply criminal laws and penalties authorized by state legislatures. The mishmash of jurisdictions, agencies, and funding exacerbates agency costs. It obscures responsibility and accountability. And it makes it easier for law enforcement officials to externalize the costs of their actions upon both the discrete communities most affected by their decisions and diffuse taxpayers across the state.

Moreover, as a matter of doctrine and theory, criminal justice focuses overwhelmingly on individual guilt and desert. The disaggregated decisionmakers who determine punishment on the ground in turn think transactionally, not broadly or (beyond their own agencies' missions) programmatically. (9) We have a host of legal and conceptual tools for trading off liberty versus security for an individual arrest, or retribution versus rehabilitation for a particular defendant. At the other end of the spectrum, legislatures can make the bird's-eye, highest-level decisions to trade off funding for prisons against that for hospitals, schools, and roads. But legislatures cannot micromanage how others will implement their high-level policy choices. For the most part, legislatures pass overbroad criminal laws, delegating almost all of the implementation issues to police, prosecutors, and judges, who lack much guidance or coordination. And we have few doctrinal or regulatory tools to force such mid- and low-level actors to internalize the full social costs (and, in some cases, the net benefits) of their enforcement or sentencing approaches to drug crimes, high-crime neighborhoods, poor minority communities, and so forth. Contrast that with other public-law fields, like securities regulation, where judicial oversight of the costs and benefits of regulators' decisions is sometimes decried as too rigorous. (10)

That contrast points out a deeper issue with paradigmatic approaches to criminal justice. Because criminal justice is fragmented and focuses on individual guilt and blame, we rarely approach the administration of punishment as a public-law problem of regulation, subject to the same tools and concepts that apply to clean air, for example. Punishment (or retribution, or public safety--take your pick) is not a classic public good like clean air. But it often functions like one: no single police officer, prosecutor, judge, or community can be excluded from using it, and one actor's or community's use does not reduce others' ability to use it. (11) Like clean air, punishment can be overused and abused--think of the tough-on-crime municipality that externalizes the high costs of state prison onto less punitive taxpayers elsewhere in the state, much as an upwind coal plant sends the full costs of its production downstate in the form of acid rain. When it comes to clean air, we have a number of regulatory tools to promote its judicious use, like cap-and-trade programs and carbon taxes.

What might it mean to apply such tools to the problem of criminal justice, to force our fragmented system to grapple with the overall costs it imposes? One could ask the same question of other well-known approaches to managing externalities and regulatory burdens and benefits, such as cost-benefit analysis. These tools cannot magically solve the problem of overpunishment, and we are not suggesting otherwise. But drawing on them can help frame the problem as requiring not only individual justice, but also systemic regulation. This, in turn, might at least encourage more productive thinking about how best to ration criminal justice as a resource and confront its full social and distributional consequences.

A handful of criminal procedure scholars have discussed some of these points. The late Bill Stuntz diagnosed America's problem as having moved power away from neighborhoods towards higher levels of government. But few of his prescriptions focused on...

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