The political market for criminal justice.

• Author: Barkow, Rachel E.
• Position: Response to article by Doron Teichman in this issue, p. 1831

In 2004, the number of individuals incarcerated in the United States exceeded the two million mark. (1) The current incarceration rate in the United States is 726 per 100,000 residents, (2) the highest incarceration rate in the Western world (3) and a dramatic increase from just three decades ago. (4) Not only are more people serving time, but sentences have markedly lengthened. (5)

What should we make of these trends? The answer has been easy for most legal scholars: to them, the incarceration rate in the United States is too high, and reforms are necessary to lower sentences. But many political leaders and voters reach the opposite conclusion: current sentencing levels are just right or, in some cases, not tough enough.

One way to assess these competing claims would be to agree on the purpose criminal punishment is supposed to serve and then to conduct an empirical evaluation of how well current incarceration policies achieve that purpose. The difficulty with this approach is readily apparent. To begin, the purpose of punishment is highly contested. The purpose could be deterrence, incapacitation, retribution, rehabilitation, or some combination thereof, and neither voters nor scholars agree on the proper metric. If that alone were not a sufficient hurdle, there is also the thorny question of measuring effectiveness. Given the complexity of human behavior and social dynamics, it is not easy to assess whether a particular sentence will deter or rehabilitate offenders or whether it will cause a reduction in crime rates.

An alternative method for evaluating sentencing and incarceration policies is to analyze the institutional dynamics that produce them. If the political economy that produces sentencing laws suffers from an imbalance or defect of some kind, that could provide a reason for questioning the sentencing policy itself. (6)

The political-economy approach is the one that Doron Teichman takes in his recent article The Market for Criminal Justice, (7) and his piece shows the promise of this method in assessing questions of criminal justice policy. As Teichman points out, looking at criminal justice policy from this institutional perspective might reveal counterintuitive conclusions and shed new light on important questions in criminal law, such as how to divide authority among local, state, and federal jurisdictions and how to assess substantive laws and sentences. This methodology is a welcome addition to the scholarship on the federalization of crime, and it will undoubtedly produce many valuable insights. Teichman's inquiry is a prime example, for it demonstrates that there is, theoretically at least, a category of crimes for which state competition might produce a race toward more severe sentences than would be produced by a single central authority.

But Teichman's article also serves as a cautionary tale about the dangers of taking an institutional approach without careful attention to the facts on the ground. An evaluation of the political economy requires as much attention to the political as it does to the economy, particularly before drawing conclusions about how to allocate jurisdiction over crime policy between state and federal authorities. At a minimum, one must carefully consider and compare the politics of sentencing at both the state and federal levels before making a claim that either has an advantage over the other. Teichman's article, however, considers only the incentives of state actors--and only some of the incentives at that--and it is through that narrow lens that he reaches "the conclusion that, contrary to the commonly held view among legal scholars, additional federal regulation in the area of criminal justice might be desirable to limit the inefficient harshening of that system caused by jurisdictional competition." (8)

In this Essay, I will expand on Teichman's analysis to show that, while his article offers an illuminating insight into the relationship among states and should serve as a springboard for further research on the proper allocation between state and federal authorities, his argument is incomplete: it ignores political incentives at the state level that do not involve mobile criminals and fails to consider the political economy of crime and sentencing at the federal level. These additional factors undermine the strength of Teichman's posited link between state competition and the rise in harsher sentences and call into question his argument for greater federal involvement. Indeed, while Teichman is right that criminal law scholars should pay more attention to institutional dynamics, the political-economy perspective suggests that those seeking to curtail the trend toward harsh sentences should seek to limit, not expand, federal involvement over crime. Teichman reaches a contrary conclusion only by assuming a central authority that is divorced from political pressure--an assumption that hardly describes Congress or the federal executive branch.

1. THE TENUOUS LINK BETWEEN STATE COMPETITION AND LONGER SENTENCES

   One of Teichman's central insights is that jurisdictional competition may create incentives for states to raise sentences under some circumstances in order to shift criminal activity to neighboring jurisdictions. Teichman posits that this creates an "arms race" (9) that is partially responsible for the harshening of sentences in recent years. (10)

   While Teichman is likely correct on his narrow claim--that state competition might be responsible for some increases in sentences--it is important to emphasize just how small this category of sentences is likely to be and how tenuous its relationship is to the incarceration boom and the trend to-ward longer sentences. As Teichman himself admits, jurisdictional competition will occur only under limited circumstances because "some crimes are clearly local," (11) and the mobility of criminals is often hindered because of costs. (12) Indeed, Teichman concedes that only a handful of crimes have produced concrete examples of displacement, and those crimes are driven by profit motives. (13) Moreover, even in those limited instances, the magnitude of a displacement effect has been "relatively small." (14) Nevertheless, relatively small does not necessarily mean relatively unimportant. Teichman's article is therefore at its most valuable in alerting readers to the potential for states to set sentences for some crimes with displacement in mind.

   The problem, however, is that Teichman often goes beyond his own stated boundaries for when displacement--and thus a race--is likely to occur, and that leads him to assume that jurisdictional competition is responsible for sentencing increases in areas where a race is unlikely to be the cause. A prime example of this is his claim that three-strikes laws might be an outgrowth of state competition. (15) As an initial matter, the sweep of three-strikes laws belies the claim that they are concerned with mobile crimes and criminals. Three-strikes laws do not cover only those crimes driven by profit motives; indeed, they cover a wide range of violent and nonviolent crimes. (16) Most violent crimes are impulsive and insensitive to variation among jurisdictions, as Teichman admits, and many nonviolent offenses are similarly local in nature. (17) There is no reason to believe that most crimes covered by three-strikes laws are "sensitive to the potential costs and benefits of relocating," undermining the claim that jurisdictional competition was the motivating factor behind the laws. (18) Teichman's use of sex offender registration and notification laws suffers from a similar shortcoming. Sex offenses are rarely crimes motivated by profit, and Teichman's sparse anecdotal evidence fails to demonstrate that most or even many sex offenders are responsive to these laws and therefore leave jurisdictions to avoid them. (19) His invocation of laws imposing collateral consequences on convicted offenses, (20) such as the removal of some occupational licenses, falls short for the same reasons. These laws typically...